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Sunday, October 07, 2007

How, If At All, Should We Honor Our "Complex" Ancestors?

Those who like to puzzle over the problems of honoring complex figures from the past will find no more delicious a subject than Charles Brantley Aycock, North Carolina's famed "Education Governor."

He served from 1901 to 1905 and is credited with the construction of hundreds of new public schools in the state.

So revered a figure is he that his statue stands in the U.S. Capitol and residence halls at Duke University, UNC, and East Carolina University bear his name.

So do many public elementary and secondary schools in the state.

But the Aycock story is not so simple.  Charles B. Aycock was also a ferocious white supremacist and a leader within North Carolina's Democratic Party at a time when the party was wresting political control of parts of North Carolina from fusionist/integrationist forces -- by violence and coup d'etat.  He was celebrated as one of the most articulate advocates of white supremacy of his day.

Aycock later presented himself as a moderating figure within the North Carolina Democratic Party -- someone who saw that the racial terror it (and he) had unleashed might go "too far."  And he liked to brag that his education reforms benefited blacks and whites alike.  As he said in a 1904 speech,

"My position has brought satisfaction and even happiness to many humble homes in North Carolina, and the Negro, whose political control I have fought with so much earnestness, has turned to me with gratitude for my support of his right to a public school education."

Go back for a moment and read the biography of Aycock that appears on the U.S. Capitol site.   Or check out the biography that accompanies the Aycock Dormitory's page at East Carolina University.  You’ll find nothing about Aycock’s white supremacist views, his work to suppress blacks’ political rights, his affiliation with the feared Red Shirts, or his fiery rhetoric that helped trigger the violent overthrow of a North Carolina city’s elected government.

A Democratic candidate for governor has asked the party to strip Aycock's name from its annual Vance-Aycock fundraising dinner.

What do you think?  Should the party strip Aycock's name from the event?  Use the annual dinner as a moment to tell party members a bit about the party's past in general and Aycock in particular?  Something else?  Leave a comment.

Posted by Eric Muller on October 7, 2007 at 09:06 PM | Permalink | Comments (2) | TrackBack

Finally! A Solution to the Palestinian-Israeli Conflict!

A Bryan Adams concert.

Why did we not think of this before?!  Why stop with waking people up from seven-year comas?  If you can do that, solving the problems of the Middle East should be a snap.

This time ... everything is easy.

Posted by Eric Muller on October 7, 2007 at 02:22 PM | Permalink | Comments (1) | TrackBack

Can Constitutional Provisions Die of Desuetude?

Mario Cuomo argues not.  But is he right?  I have my doubts on the empirical front -- and feel free to put your favorite provision's death by desuetude in the comments.  I'm thinking that that whole dispute about the Bank of the United States (remember McCulloch) pretty much put to rest the idea that practice is irrelevant to determining what the Constitution means.  Of course, Cuomo might be thinking of Marshall's reminder that "It will not be denied, that a bold and daring usurpation might be resisted, [even] after an acquiescence still longer and more complete than this."  But I have the sneaking suspicion that Cuomo probably has some selective ideas about which provisions may die of desuetude and which may not -- and about which sort of governmental actions are "bold and daring usurpations" and which sorts of acquiescences, by contrast, are sufficient to undermine constitutional provisions. 

Posted by Ethan Leib on October 7, 2007 at 01:35 PM in Article Spotlight | Permalink | Comments (2) | TrackBack

Friday, October 05, 2007

The Future of Fellowships

Thanks again to Dan et al. for letting me squat here for the last few months.  I've enjoyed it very much.  It's time for me to sign off (again).  But before I do I'd like to end with a post about the future of law teaching fellowships.

I started my law teaching career as the Williams Fellow at UCLA School of Law.  The Williams Fellowship is sponsored by UCLA's Williams Institute on Sexual Orientation Law and Public Policy.  The purpose of the fellowship is to train new scholars who teach and write on issues relating to law and sexuality.

The benefits of doing a fellowship have been well documented.  I tend to think that a fellowship is a great experience for someone who is trying to break into the legal academy.  For me, my fellowship was essential; I wouldn't have gotten a tenure-track job if it wasn't for the chance to spend a couple of years with the faculty at UCLA.

And this is, in my mind, one of the best reasons why we should celebrate the rise of fellowships: fellowships can open doors for young scholars who would otherwise not be able to get tenure-track positions.  This was certainly the case for me.  Because my law school does not have a history of producing law professors, it was clear that if I was going to make it as a law professor, I was going to have to "wash" my degree (I hate the term, but it's useful in this context).  My two years at UCLA served this cleansing function.  Of course, the fellowship did more than just that.  During my fellowship, I got time to focus on my teaching, develop a scholarly agenda, attend conferences and workshops, and, perhaps most importantly, learn the social practices of talking and acting like a law professor, skills that no doubt helped me on the teaching market.

But I am worried about the future of fellowships.

In particular, I am worried that fellowships are becoming too professionalized.  By this I mean that many fellowships are going to candidates who will have no trouble landing a tenure-track job.  Many fellows are already on their way to becoming law professor rock stars--they have PhDs in fields related to law; they have Supreme Court clerkships; and they have publications in the Ivy League Law Review.  While I certainly understand why law faculties want these folks to spend some time at their schools, I worry that over time fellowships will stop serving the "boosting" function for folks who don't have these credentials.

Diversity in the academy is important.  This includes a diversity of educational institutions.  In the future, I hope that at least some law teaching fellowships will remain open for faculty candidates who need the added value of a fellowship.

Posted by Zachary Kramer on October 5, 2007 at 09:39 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Kelsen one last time

Larry Solum at Legal Theory Blog has responded to Brian Leiter's and my two posts on Hans Kelsen. Since Larry asked me a question about my own views on Kelsen, I thought I would post about him one last time.

It is worth noting that my initial post had a sociological focus. I was interested in why Americans in fact don’t talk about Kelsen. Their reasons could be good or bad. I just wanted to describe, at a general level, what those reasons (or causes) were. I did this because I thought that Kelsen’s true merit wasn’t really a bloggable topic.

But the discussion has moved to that topic anyway. So I will say what I think:

Kelsen is undervalued here and should be read more.

Let me start by listing  a few of the very interesting questions in legal theory that arise in Kelsen’s writings, each of which can be appreciated independently of the more difficult philosophical stuff (I discuss some of these questions in connection with concrete legal examples in this article):

1) Is an act that is not legally forbidden necessarily permitted? Or are there deontic voids, in the sense that an act is simply nothing, neither forbidden nor permitted? Taking a trip to France is neither forbidden nor permitted in chess. It is neither a proper nor an improper move in the game. Is the same thing possible in legal systems? Or are there no gaps in the law?

2) Are legal contradictions possible? Kelsen thinks that they are not, and he has some very creative ways of showing how apparent conflicts are not conflicts at all. Consider a domestic statute in violation of a constitution. There is in fact no conflict here, he argues, because the statute remains valid until it is nullified by an act of judicial review. The sole exception would concern what Adler and Dorf call existence conditions, where failure to satisfy the condition makes the putative statute a nullity from the beginning. But here too there is no contradiction because there is no statute.

3) Kelsen’s solution to the problem of a domestic statute that is in violation of international law is to argue that the statute remains valid indefinitely, because there is no mechanism for invalidating it. So what does it mean for the statute to be in violation of international law? The passage of the statute makes sanctions against the authoring state permissible. When I teach Kelsen I ask my students to imagine a domestic constitution that functioned the same way. It could not be used to invalidate statutes, but it would provide for sanctions against the drafters.

4) Are multiple legal systems possible or is there only one legal system? If there is only one, which is it? Is all law fundamentally American law (at least from our perspective)? Or is American law really international law, in the sense that America’s laws are legitimate only because international law says so?

5) Related to 4, Kelsen is the only philosopher of law I know of who has actually said something about choice of law, a legal topic that has profound jurisprudential implications.

6) What is a revolution? Is it a change in legal systems or is it really an act, similar to legislation, within a legal system? Kelsen thinks it is the latter. Because, under international law, a state is legitimate if its laws are efficacious (in the sense that the population follows them), the instigator of a coup is like a legislator. He is authorized to change law by changing the behavior of the population.

7) In general Kelsen has far more to say about revolutions than most philosophers of law. It is odd that they are not spoken of more often, because they reveal the fundamental nature of legal systems.

8) Must a court make law with every decision? Kelsen has an important take on this long-standing issue that is different from both Hart’s and Dworkin’s.

9) What are the fundamental legal relations? Authorization, command, and permission?

So there is a lot in Kelsen that’s interesting. But what about the heart of his philosophy of law? Larry asks whether I believe “that the crucial idea (legal meanings are abstract objects independent of human beings) depends on grasping Kelsen's system.”

The best way of thinking of Kelsen is as the Frege of legal theory. He thinks that legal meanings are abstract objects with necessary relations to one another and he uses a Neo-Kantian approach to explain how knowledge of these abstract objects and relations is possible. This is similar to how Frege uses a Neo-Kantian approach to explain our knowledge of logical necessity in the face of attempts, common in the nineteenth century, to naturalize logic by reducing it to psychology. (I offer this reading of him in my article .)

I think there are good arguments that legal meanings are indeed abstract objects – correlated with, but not reducible to, social events.  Furthermore, if that’s true, we are forced to explain how these objects can exist and how we can know them. But is Kelsen’s system the way to do it?

The answer is no, if by “Kelsen’s system” Larry means the basic norm.

The basic norm is part of Kelsen’s Neo-Kantian explanation, but I think it is a mistake, even from within a Neo-Kantian perspective. (I won’t go into why here. Kelsen might have picked up the idea from Hans Vaihinger.)

So the basic norm aspect of Kelsen should be scrapped. But that doesn’t mean scrapping the basically Kelsenian view that legal meanings are abstract objects. Nor does it mean scrapping a largely Neo-Kantian account of our knowledge these objects, although if anyone can come up with a plausible Platonist account, I’m all ears.

Another problem with Kelsen’s theory of law is his insistence, which Brian mentioned, that legal norms are fundamentally coercive norms. I objected to the way Brian put this point because he drew an analogy between Kelsen and Austin. The analogy doesn’t work, because legal duties are not about a probability of sanctions for Kelsen (as they are for Austin). Instead, D has a legal duty to engage in act p only if her failure to p makes sanctions against her legally permissible. No sanctions need actually occur.

As I mentioned in my earlier post, I think Kelsen’s emphasis on coercion is less problematic than it seems. But it may be something to get rid of too. Still, most of Kelsen would look the same without it.

Finally, a few comments on reading. To Larry’s recommendations concerning secondary literature on Kelsen, I would add William Ebenstein, The Pure Theory of Law (1945) – a great book, but hard to find.

As far as reading Kelsen in translation is concerned, it is worth noting that he wrote a lot in English after moving to this country. He even published articles in the Harvard Law Review (in 1941) and the Yale Law Journal (later in the 40s). But the most important work by Kelsen is the Reine Rechtslehre (Pure Theory of Law) – which came out in two different editions separated by 26 years.

Larry’s right that the 1967 Max Knight translation of the second edition is pretty bad, even though it was approved by Kelsen. It also cuts out a lot of footnotes from the original. But the first edition is masterfully translated (under the title Introduction to the Problems of Legal Theory) by Bonnie Litschewski Paulson und Stanley L. Paulson. It's too bad that it's so expensive. The General Theory of Law and State, incidentally, is also ably translated by Wedberg.

Posted by Michael S. Green on October 5, 2007 at 09:18 PM in Legal Theory | Permalink | Comments (1) | TrackBack

More re: Marci Hamilton's "Red Mass" essay

Paul's post, below, about Marci Hamilton's recent FindLaw column, is -- as one would expect from Paul -- thoughtful, charitable, and insightful, and I agree with him entirely.  I think it is worth underscoring, though, Marci's claim that "the tone and tenor of the majority opinion in Gonzales had to make any clear-minded individual pause."  More specifically, she suggests that "the way the opinion was written does open the majority to attack along the very lines [Prof. Geof Stone] outlined" in his op-ed suggesting that the five Justices in the majority were influenced inappropriately by their Roman Catholicism.

I have already expressed my disagreement with Geof (and now, I guess, with Marci) on this matter.  It seems worth adding my doubts about Marci's suggestion that Geof's criticism "should have put the Justices on notice to tread carefully when it comes to religiously-freighted issues that they have the duty to resolve from a secular, law-based point of view. The five Catholic Justices have to be aware, after the fallout from Gonzales, that questions have been raised about their ability to separate their judicial judgment from their religious belief." 

"Questions have been raised," true, but questions can always be raised.  The notions that, because of criticism about Carhart, the Roman Catholic Justices' decisions about participating in religious events are particularly suspect, or that they should enjoy diminished freedom to attend the Red Mass, seem quite vulnerable to the usual objections to hecker's-veto arguments.

Posted by Rick Garnett on October 5, 2007 at 03:39 PM in Constitutional thoughts | Permalink | Comments (7) | TrackBack

Justice Scalia as Jack Bauer

Dahlia Lithwick is branching out.  Here's a short video she did, imagining Justice Scalia as Jack Bauer.

Posted by Rick Garnett on October 5, 2007 at 03:12 PM in Rick Garnett | Permalink | Comments (0) | TrackBack

Thursday, October 04, 2007

Volokh on Obama and Patriotism

I'm not sure, but I think Eugene Volokh is arguing here that when Barack Obama stopped wearing an American flag lapel pin sometime after 9/11, he signaled that he does not have an "emotional" love for the United States, and is therefore unelectable.

Or am I reading Eugene wrong?

UPDATE:  Orin Kerr reads Eugene as arguing not that Obama is in fact unpatriotic, but that Obama's decision to stop wearing the flag pin was a bad move politically.

Posted by Eric Muller on October 4, 2007 at 09:58 PM | Permalink | Comments (5) | TrackBack

An alternative theory of Kelsen's neglect - Americans lazy, provincial

Yesterday I asked why it is that Americans ignore the most influential philosopher of law of the previous century - Hans Kelsen. I suggested one reason was that "Americans look at law and legal systems empirically - as fundamentally involving questions of social facts," whereas for Kelsen the law was fundamentally non-empirical. Brian Leiter has responded to my post over at his Legal Philosophy Blog. What he says seems to confirm my diagnosis.

Leiter is surprised that I didn't mention "what is surely the main reason for lack of attention to Kelsen, namely, that it is pretty widely thought that Hart persuasively undermined the two most distinctive features of Kelsen's jurisprudence." But one of these two distinctive features turns out to be, as Leiter puts it, Kelsen's view "that the normative force of law was only explicable by reference to a non-natural transcendent fact, what Kelsen called the Grundnorm."

Americans side with Hart, Leiter argues, because he offered "an account of law and its apparent normativity in terms that were exclusively psychological and sociological - in terms of what legal officials do and their attitudes towards what they do - that render otiose the need to posit transcendent norms." Americans don't like Kelsen, in short, because he took a non-empirical approach to the law.

Leiter might be correct that Kelsen's resistance to empiricism is fatal. (My goal was describing why Americans don't talk about Kelsen, not whether they are right not to do so.) But his motivations appear to be just what I described in my earlier post.

By the way, I can certainly understand why a naturalist like Leiter doesn't think much of Kelsen. Leiter is a twenty-first century representative of just what Kelsen and other late Neo-Kantians were reacting against - namely naturalism and psychologism in philosophy.

But Leiter's post does suggest a problem with my diagnosis. He points out that many non-American Anglophone philosophers of law write on Kelsen. He mentions Raz, but in the UK there's also Hart himself, J.W. Harris, Tony Honore, Deryck Beyleveld, Roger Brownsword, Neil MacCormick, and J.G. Starke. What is more, those in the US writing on Kelsen (e.g. Andrei Marmor) often have an international connection. I was first exposed to Kelsen during the two years I lived in Berlin.

Since all Anglophone philosophy of law tends to have an empiricist bent, philosophical disagreement is not enough to explain the neglect of Kelsen in this country. To be sure, much that's written on Kelsen in the UK is highly critical. But so is much that's written on him elsewhere. The point is that it is written, and generally well informed. In this country, little is written and it usually gets Kelsen wrong.

Leiter's post is an example. His description of the basic norm as a "transcendent norm" is one Kelsen explicitly rejected (e.g. Introduction to the Problems of Legal Theory p. 25). Kelsen is a Neo-Kantian and the distinction between the transcendent and the transcendental is basic Kant.

The same thing might be true of Leiter's second "distinctive feature" of Kelsen's philosophy of law, also allegedly undermined by Hart, namely Kelsen's view (which Leiter associates with Austin) that "the nature of law is essentially tied to its use of sanctions." True, Austin understands the law in terms of the use, or probability, of sanctions. But this is just the sort of empiricism that Kelsen rejected. Kelsen understood the law in terms of conditions for appropriateness of sanctions. The question is normative. Whether sanctions actually occur or are indeed at all probable does not matter (Introduction p. 25). The unenforced law is no problem for Kelsen. Only lex imperfecta (that is the law with no provisions for enforcement) is.

Nor are power-conferring laws (e.g. the conditions for creating valid contracts or wills) a problem for him. Kelsen understands such laws as fragments of larger laws (If the contract is in writing, and if the other side breaches, then sanctions are permissible). He does not understand them, as Austin does, as themselves commands with nullity as a sanction. Hart tries to argue against Kelsen's fragment theory, but I don't find him that persuasive here.

Still, Leiter might be right that Kelsen's emphasis on sanctions (properly understood) is also responsible American neglect of his thought.

But the real question has less to do with whether Kelsen can be criticized. Even if he can, the question remains: Why do American philosophers of law do so little of the criticizing? After all, Austin can be criticized too, but philosophy of law courses in this country rarely omit him. 

Here's a new theory of why Kelsen is neglected. One reason is his difficult prose ("his unlovely writing style" as Leiter puts it). Reading Kelsen is hard (at times, he seems to make it gratuitously hard). The other is that American philosophers of law, especially those who work in law schools, aren't exposed to enough foreign work on Kelsen for them to feel any pressure to discuss or even understand him.

One more comment. Leiter claims that "Kelsen's huge influence in the non-Anglophone world...has much more to do with his contributions to constitutional and international law, than to legal philosophy."

In fact, it is Kelsen's philosophy of law that these foreigners are most interested in. In February of 2006, I was at a gathering of Kelsen scholars assembled by Stanley Paulson at Wash. U. Only Paulson and I were from the U.S. (One of the benefits of Americans' neglect of Kelsen is that I can count as a Kelsen scholar simply by having written one article!) The rest were from France (Charles Leben), Sweden (Ake Frandberg), Australia (Iain Stewart), Poland (Jan Wolenski), Israel, and Japan. Each person gave a presentation concerning the state of Kelsen studies in his country. The conversation was mostly about his philosophy of law.

As further evidence, look to the end of my article on Kelsen, where I list the books written on him between 1983 and 2003. I can find over 20 that are clearly on Kelsen's pure theory of law, and only a few that are arguably on his views on international law or constitutional theory.

Finally, Kelsen's views on constitutional and international law (and particularly the latter) are intertwined with his philosophy of law. You can't understand what Kelsen says about international law without understanding his doctrine of the unity of law. This doctrine has two elements: that all valid laws (including international law and the laws of the various domestic legal systems) form a single system and that valid laws may not conflict. (Introduction pp. 111-22.) Kelsen comes to this conclusion on the basis of his Neo-Kantianism and his theory of the basic norm. (By the way, the doctrine - like much of Kelsen - is far more plausible than it sounds at first.)

Posted by Michael S. Green on October 4, 2007 at 08:21 PM in Legal Theory | Permalink | Comments (16) | TrackBack

Can public policy support the institution of friendship?

I'm happy to announce that Policy Review has just published my "Friends & the Law:  Can Public Policy Support the Institution of Friendship?"  As you might imagine, this essay is a "popularized" and unfootnoted attempt to rehearse arguments I have tried to make in "Friendship & the Law" and (with Dan Markel and Jen Collins) in "Criminal Justice and the Challenge of Family Ties."  So if you have found yourself unable to slug through the hard-core academic versions of these arguments, you might just enjoy the exposure in this easily-digestible form.  But even for the six of you that have made your way through the academic versions, I have tried to supplement some of my thinking in this later essay.

Posted by Ethan Leib on October 4, 2007 at 06:59 PM in Article Spotlight | Permalink | Comments (1) | TrackBack

Marci Hamilton on the Red Mass

In a column on FindLaw earlier this week, Professor Marci Hamilton wrote about this year's Red Mass.  This is a traditional event in many places, in which the Catholic Church, as that redoubtable source of Catholic wisdom -- Wikipedia -- puts it, "requests guidance from the Holy Spirit for all who seek justice, and offers the opportunity to reflect on what Catholics believe is the God-given power and responsibility of all in the legal profession."  I've attended the Red Mass in DC a couple of times, and it is, for good or ill, a star-studded event.  Hamilton notes that this year's audience included six Supreme Court Justices -- Roberts, Scalia, Thomas, Kennedy, and Alito, all Catholics, and Justice Breyer, who is Jewish.  At this year's Red Mass, according to one report, the homily "alluded to such issues as abortion, euthanasia, cloning and human sexuality."

Hamilton's column is careful.  She says the Justices "have the right to worship as they choose"; that the archbishop who delivered the homily had every right to "preach his Church's beliefs"; and that "[n]o one is asking the Justices to abandon their faith -- least of all myself."  But Hamilton says "there is reason to feel some unease with respect to their presence at the event."  She suggests that the archbishop's description of the event as an opportunity "to rejoice in a mutually enriching alliance between religion, morality and democracy" meant "that we should rejoice in an alliance between a particular religious denomination, Catholicism, and the government."  She suggests that recent discussion of the relevance of the number of Catholics on the Court "should have put the Justices on notice to tread carefully when it comes to religiously-freighted issues that they have the duty to resolve from a secular, law-based point of view."  And she says that because the Justices have the burden of avoiding even the appearance of impropriety, "their presence at the Mass and its content still should raise questiosn for any number of Americans."  She closes by suggesting that the Justices should "provide the public with greater reassurance that they view their judicial obligations as distinct from their religious obligations.  Taking a pass on the Red Mass might well have done just that."

Is Professor Hamilton right to be concerned?  I think not.   

Part of the problem, I think, is that in some cases Hamilton misreads the homilist, and the meaning of the Red Mass.  Consider again the statement that we should "rejoice in a mutually enriching alliance between religion, morality and democracy," which Hamilton takes as signifying "an alliance between a particular religious denomination, Catholicism, and the government."  Well, it is an alliance of sorts, but not one of merger or capture; and I think it is not one the archbishop is urging on the Justices and other assembled legal professionals, but rather one that he believes is immanent in their work.  To do justice, or to seek to do so, is one among many ways of being called to live well and decently in a world that is imbued with God's presence.  And although the archbishop surely believes that the true path to understanding that presence lies in the Catholic Church, I think he, or many Catholics, also believe that all of us who work in the justice system share in a worthy calling, and all of us deserve prayers that we should do this work with strength and conviction.  In that sense, I'm not sure that Hamilton is right to characterize the Red Mass as "a public affair intended to reinforce the ties between government and the Church" -- although I suspect, having been to this celebrity-rich event a couple of times, that some individuals sometimes take this mistaken lesson from the ceremony.  Rather, I see it as an affair intended to acknowledge the special responsibility of those called to public service or to service to the justice system, to remind them of that responsibility, and to offer them the strength to live up to those responsibilities.

I also think, although she is not entirely clear here, that Hamilton overreads the archbishop's homily as directing these Justices and lawyers to reach particular substantive results in cases involving the hot-button issues he apparently alluded to.  Judges and lawyers have a somewhat unique role in administering our system of law, and their office may not always extend to using their roles to engineer particular results in keeping with the Church's views (or anyone's substantive views).  So I don't think the Justices necessarily understood themselves as being pressed to reach particular results -- although, in fairness, sensitivity to the nuances of the Church's teachings on this point may vary according to the individual homilist.  (I take no position here on whether homilists at Red Masses should tread carefully in discussing particular issues with judges in the audience; I think the most I would say it what I would always say, regardless of the audience -- that one should always speak humbly and with care, and with some thought for the occasion, although without abandoning the heart of one's most deeply held convictions.)

There's a broader point here that bothers, me, though, and that is Hamilton's belief that the Justices are obliged to "provide the public with greater reassurance that they view their judicial obligations as distinct from their religious obligations."  As stated, and at the risk of quibbling, I just don't think that's right.  The Justices, or some of them -- although perhaps this is true of Justice Breyer, too -- attend the mass because they understand that their judicial obligations are not distinct from their religious obligations: that, in faithfully carrying out their judicial obligations, they are, in a deep sense, living out their religious obligations.  For some lawyers, I am sure, the work would lose much of its meaning were it otherwise.  But that is different from saying that their religious obligations are in conflict with their judicial obligations; to the contrary, they may well best understand their religious obligations as demanding that they faithfully and humbly hew closely to their professional obligations as lawyers and judges.

I acknowledge that this is not always a point everyone gets; people may assume that religious judges are obliged to serve their religion over their office, rather than that religious judges serve their faith precisely by honoring the duties of their office.  Perhaps we need to have that conversation more, and more clearly.  But I don't think the Justices need to absent themselves from the Red Mass in the meantime.      

Posted by Paul Horwitz on October 4, 2007 at 06:55 PM in Religion | Permalink | Comments (0) | TrackBack

Pain-Free Execution?

In response to Sam's post viewing the Supreme Court's upcoming death penalty case (challenging lethal injections as an unconstitutionally painful method of administering the death penalty) as "a moment to reopen the national debate about capital punishment -- about morality, deterrence, incapacitation, costs, etc. ," Orin Kerr posted a comment asking:

I am a bit curious about your suggestion that the "big" capital punishment question is whether it is unconstitutional per se. As far as I know, none of the Justices believe this; how is it that a view with zero votes on the Supreme Court is the "big" question of constitutional law?

Oddly, I'm unsure whether my view is agreeing or disagreeing with Orin.  I think this case does raise the question of the constitutionality of the death penalty, because if lethal injection is held unconstitutional because of the pain it causes, what method is left?  Electrocutions, firing squads, and hangings all can cause substantial pain; if lethal injections are unconstitutionally pain-causing, I'm skeptical that we can draw any line between these methods.  Maybe crushing someone with a free-falling 10-ton cube, dropped from high enough to be falling at great speed, would cause death instantaneously enough to be non-painful?  I know that sounds silly, but is any method other than crushing a body virtually instantaneously (or disintegrating it, but to my knowledge we can't do that except in science fiction) guaranteed to prevent any sensation of pain?

Of course, the fact that a ruling against lethal injection would appear to call into doubt all death penalty methods (except my fast-free-fall 10-ton cube, which we don't yet have the apparatus to administer) is why I'm highly skeptical that the anti-lethal injection view will prevail at the court.  Here's my prediction (and yes, I know that predicting Supreme Court decisions, especialy outside your own field (I'm not a criminal procedure guy) is a sure way to look dumb, but this won't be the first or last time I've looked dumb): 8-1 to allow lethal injection, with the defendant winning only the vote of Justice Stevens, who in recent years has started to question the death penalty, as center-left Justices who'd previously upheld the death penalty are wont to do at some point in their 80s.

(And if you have an answer about the fast-free-falling 10-ton weight, or other possible pain-free methods of execution, please let me know in the comments section.)

Posted by Scott on October 4, 2007 at 02:16 PM | Permalink | Comments (10) | TrackBack

Deference in Constitutional Law

By happy coincidence, a couple of weeks ago Larry Solum's Legal Theory Lexicon featured a post on standards of review.  Solum wrote that the topic of standards of review "sounds specifically like doctrine, not theory.  And that's right -- standards of review are 'doctrine,' but that doesn't mean they aren't also of theoretical interest."  As Solum noted, a key aspect of any discussion of standards of review is the topic of deference.  He added: "Superficially, this all looks quite straightforward.  After all, the idea of "deference" is familiar from ordinary language and life: for example, I might defer to a friend's judgment about wine or a colleague's judgments about golf--they know more than I do about those topics.  But in the context of law, it can get to be tricky."

And how.  In particular, I would add that deference is one of the most prominent and pervasive doctrinal tools in constitutional law, and one of the vehicles through which courts confront and attempt to remedy their frequent lack of expertise concerning the factual and institutional facts in which constitutional cases arise.  It is well known as a doctrinal matter.  As a theoretical matter, however, deference in constitutional law is both profoundly complicated and surprisingly understudied and undertheorized. 

Solum's post therefore seems like a nice point of departure from which to announce that I have posted my latest paper on SSRN.  Entitled Three Faces of Deference, it's forthcoming in the Notre Dame Law Review.  Here's a snippet from the abstract:

Deference - the substitution by a decision maker of someone else's judgment for its own - is a pervasive tool of constitutional doctrine. But although it has been studied at more abstract levels of jurisprudence and at very specific doctrinal levels, it has received surprisingly little general attention in constitutional scholarship. This Article aims to fill that gap.

This Article makes three primary contributions to the literature. First, it provides a careful examination of deference as a doctrinal tool in constitutional law, and offers a taxonomy of deference. In particular, it suggests that deference can best be understood as relying on two separate but overlapping grounds: deference on the basis of the legal authority of the deferee, and deference on the basis of the deferee's epistemic, or knowledge-based, authority. Importantly, this Article suggests that deference cannot be examined from the standpoint of the deferring institution - usually, the courts - alone. Rather, we must also consider the obligations of deferees, which should invoke deference only for those decisions reached in the full and fair exercise of their legal or epistemic authority.

I'll have more to say about the paper over the next couple of posts.  In the meantime, two comments.  First, let me emphasize the point made in the abstract: When we think about deference, we think all too frequently only about deference from the standpoint of the deferring party -- usually, the courts.  But it is equally important that we think about deference from the standpoint of the institution being deferred to, and about what obligations might accompany a right to deference.  Second, let me say that this is still a work in progress, and I would very much appreciate comments and reactions from anyone who is interested in the paper, through the comments or directly through email. 

Posted by Paul Horwitz on October 4, 2007 at 08:48 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

Wednesday, October 03, 2007

Paging Ann Althouse...

In this CNN article on how Jeri Thompson feels about being called Fred Thompson's "trophy wife," I noticed this line:

"Thompson, 41, says she met her future husband at a Nashville supermarket on July 4, 1996, a few years before she moved to Washington. To hear her tell it, the then-U.S. senator from Tennessee was standing in line with a can of beanie weenies and half a premade tuna fish sandwich."

Kind of eclipses the Clintons' onion rings and carrot sticks, doncha think?

Posted by Eric Muller on October 3, 2007 at 08:40 PM in Current Affairs | Permalink | Comments (0) | TrackBack

"Faith in the Rule of Law"

Here's a paper -- "Faith in the Rule of Law", by Marc Degirolami -- that should be of interest to many Prawfsblawg readers (especially to those of us in the Law's Quandary fan club):

This is an essay on Professor Brian Tamanaha's book, Law as a Means to an End: Threat to the Rule of Law (Cambridge Univ. Press 2006), and what Tamanaha describes as the danger that legal instrumentalism poses for the rule of law. It claims that though Tamanaha successfully traces the rise of legal instrumentalism over the last two centuries, the reader comes away wondering why Tamanaha seems so fretful about the strength of belief in the rule of law or what accounts for the desire to affirm a non-instrumentalist view of law in the face of the contrary march of history.

The essay offers an answer to these questions. It claims that one source of resistance to the seemingly inexorable progress of legal instrumentalism lies in the non-rational, temporally unbounded human yearning that the rules that guide our lives should deserve our allegiance because they represent a transcendent structure of meaning. Our opposition to legal instrumentalism reflects “faith in the rule of law,” a belief that the law is something other than merely a means to resolve our ordinary conflicts, and that it bestows worth and possibility to its adherents beyond their historical context.

Drawing from Tamanaha's excellent history of the rise of legal instrumentalism, the essay reinterprets what Tamanaha repeatedly emphasizes as the crucial contemporary instrumentalist danger – our growing inability or unwillingness to believe that the law is anything but a tool to advance interest – as loss of faith in the rule of law. The essay thus offers a counterpoint to Professor Adrian Vermeule's reading of the book, arguing that Vermeule may be mistaken in analogizing Tamanaha's thesis to a kind of secularized Pascal's wager. The essay concludes by considering whether there is any value in faith in the rule of law and what that value might be.

Posted by Rick Garnett on October 3, 2007 at 03:10 PM in Legal Theory | Permalink | Comments (0) | TrackBack

What If We Threw a Death Penalty Moratorium and Nobody Noticed?

Amazing things are happening with the death penalty in the United States and almost no one (outside of those who work in this area) seems to be noticing.  The Supreme Court granted certiorari in Baze v. Rees (#07-5439) on September 25, 2007, agreeing to hear Mr. Baze's claim that the lethal injection the state of Kentucky seeks to impose on him would subject him to needless pain and hence violate the Eighth Amendment. 

This cert grant would be notable in itself.  But what happened next was even more so.  The Supreme Court stayed two Texas executions (both would have been done by lethal injection) pending its decision in Baze.  Given that 37 of the 38 states that retain the death penalty use lethal injection, it seems unlikely that any executions will take place until Baze is  resolved.  If that doesn't happen until the end of the current term, the U.S. might go the next 8 months without an execution.  (As usual, Doug Berman is all over this at his sentencing blog, though I don't agree with him that the lethal injection litigation is a "national disgrace.")  Fifty-three people were executed in the US last year (down from a post-Gregg high of 98 in 1999; the prospect of eight months without an execution would be unheard of in the modern history of the death penalty.

The press has covered this story, but it's hardly been front-page news.  I'm not sure whether this is the beginning of the end for the death penalty in the United States, but I'd think that this would be a moment to reopen the national debate about capital punishment -- about morality, deterrence, incapacitation, costs, etc.  If we can't have it now, I'm not sure what will precipitate it.

UPDATE:  The Texas Court of Criminal Appeals stayed an execution late last night, further evidence that a moratorium is afoot.

Posted by Sam Kamin on October 3, 2007 at 01:20 PM in Criminal Law | Permalink | Comments (4) | TrackBack

W(h)ither the Law Firm Library?

The WSJ Law Blog has this item, noting that Weil Gotshal is looking to unload its copies of volumes 1-118 of the Harvard Law Review.  As the items notes, this isn't so much a slam on that reasonably well-regarded journal as it is "a function of the ever-shrinking libraries with these volumes, and most others, being available digitally."

Well, I like Westlaw as much as anyone, but let me sing a brief dirge for the law firm library.  Most of us who teach did our time in law firms, and some actual work got done; unlike the character in Kermit Roosevelt's novel, we weren't eternally preparing job-talk papers.  Nevertheless, it used to be possible to be a bookish lawyer, and even a bibliophile, at a law firm.  Firm libraries were not immense, and most lawyers at the firm seemed barely to know that they existed.  But the bookishly inclined lawyer could sacrifice many a billable hour browsing happily and sleepily among the collected volumes, leafing through the odd or superannuated books that make their way inevitably into every law firm collection, and even keeping up with new law review issues.  We could form quiet and rewarding relationships with the law librarians, who shared our interests and who, from their perches, had a calm and unhurried long view of the lawyers who passed through the firm.  And, yes, if one was so inclined, the law library was a cool, dimly lighted and gentle place to avoid unpleasant new phone calls.  Alas for those days, now gone and never likely to return.

Your own law firm library memories are welcome.      

Posted by Paul Horwitz on October 3, 2007 at 12:17 PM in Books | Permalink | Comments (7) | TrackBack

On "Get Over It"

One last thought on L'Affaire Pin Point.  Another common point in the reaction to Justice Thomas's memoir, and specifically its attacks on Anita Hill, is that there is a deep thread of bitterness to his taking a hatchet to her some 16 years later; that he won his seat, after all; and that he should just get over it, at least publicly.  Scott's post had some of this flavor, as does this post on Blackprof.

I have somewhat more mixed feelings about this.  On the one hand, assume for a second that Thomas's view is correct: that he was a decent man who was wrongly accused; that some of the people who believed her over him did so for what were at bottom political reasons; and that many people assume he is a sexual monster sixteen years after the controversy first erupted.  Put yourself in the shoes of such a wrongly accused person.  Is it especially extraordinary to think you might still feel bitter?  And that if your accuser falsely smeared your reputation, with lasting effect, you might still have an unkind word or two about that false accuser, and that you would take the view that time hardly immunized them from further criticism?

For these reasons, and assuming the absolute truth of Justice Thomas's views, I think "get over it" is not a very empathetic piece of advice.  This is complicated, however, by three factors.  First, Thomas does not just point his finger at Hill, but, as Scott notes, assumes that all those who supported her must have had evil, if not conspiratorial motives.  At the VC, Ilya has noted the disturbing degree of polarization that arises around such controversies, and the ways in which our polarized positions extend even to disputed factual issues, such that we end up disputing the good faith of all those who disagree with us on reasonably disputable matters.  We could say the same thing about many Clinton supporters' lasting enmity for, in Hillary Clinton's words, the "vast right-wing conspiracy" that criticized Bill Clinton during the impeachment proceedings and their leadup.  I think Ilya is quite right, and that in both cases our tendency to take such a view only exacerbates that very polarization.  Thomas and Clinton are both right: there were folks on the left who took the Hill accusations as an opportunity to destroy Thomas, and there were folks on the right who used Clinton's wrong-doing in a targeted effort to weaken his presidency.  But they are also both wrong.  Not everyone on either side was involved in a conspiracy, and some folks believed and acted in good faith.  So Thomas should be far more careful in extending his bitterness in ever-expanding outward circles.

Second, although both Thomas and Hill bluntly assert that something did or did not happen, we outsiders must acknowledge a third possibility: that something did happen, and that whether it consisted of sexual harassment depends in part on the subjective views of both of the individuals involved.  If Thomas believes that Hill's accusations are false through and through, this point doesn't apply (and vice versa).  On the other hand, if Thomas in his heart of hearts believes that something happened, but it wasn't sexual harassment, he might moderate his bitterness by humbly remembering that Hill might see the same facts differently, and that he, too, ought to be able to step into the shoes of another when reflecting on the episode.

Finally, there is the hope that we all can, Christlike, eschew bitterness.  As this fascinating book relates, St. Thomas More carried with him into prison a copy of the Book of Hours, a book of devotional prayer.  In the margins of the book, More writes at one point: "Thus ought the meek man to behave in tribulation: he should neither speak proudly himself not reply to what is wickedly spoken, but he should bless all the evil speakers and suffer gladly, for the sake of justice if he has deserved it, or for the cause of God if he has deserved no evil."  (Note how closely that double set of "ifs" reinforces my second point.)  I doubt we can say that Thomas's book meets this standard, and one could reasonably urge him to try harder to meet it.  Our urgings themselves should be humble, however, since most of us fall short of that high standard.   

Posted by Paul Horwitz on October 3, 2007 at 10:20 AM in Current Affairs | Permalink | Comments (16) | TrackBack

More on "The War" and the Meaning(s) of Patriotism

One of the many contributions of Ken Burns' PBS documentary "The War" has been to draw attention to the dramatic and important story of the many Nisei (American-citizen children of Japanese immigrants) who volunteered or were drafted out of the War Relocation Authority's so-called "relocation centers" to serve in the military, especially the fabled 442nd Regimental Combat Team.  The series has emphasized that many of the Nisei who served in the military felt that they had to do so in order to prove their American patriotism.

In a film of this documentary's scope (the entire story of the US homefront in WWII), it is undoubtedly too much to expect that the filmmaker would include the stories of Nisei who responded differently to the dilemma of military service.  But there were Nisei who did respond differently.  More than three hundred young men at nine of the ten WRA camps decided to try to use the draft as a moment to challenge the lawfulness of the government's entire program of racial relocation and detention.  Their moral point was as simple as it was devastating:  if we are loyal enough to fight and die for our country, what are we and our families doing behind barbed wire?

Their legal point was, however, more dubious.  There was no precedent establishing that an alleged civil rights violation (even of the internment's enormity) cancelled a young man's legal obligation to comply with the military draft.  The government quickly moved in and silenced the protests by arresting the resisters on charges of willful draft evasion.  In mortifyingly conducted trials in federal district courts across the West, most of the young men were convicted and sentenced to two- to four-year terms of incarceration.  They were then shipped from the barbed wire of the internment camps to the barbed wire of federal prisons.

Only one federal judge saw the cases differently:  Louis Goodman of the federal district court in San Francisco.  He dismissed the indictments of 27 resisters from the Tule Lake Segregation Center on due process grounds, holding that it was "shocking to the conscience" to incarcerate people on a racial theory of disloyalty, draft them, and then prosecute them for not complying.  The government did not appeal his decision -- though if it had, it almost definitely would have prevailed.

The Nisei draft resisters of World War II practiced a very different model of patriotism from the Nisei soldiers of the 442nd.  And it has taken six decades for some (especially some in the Japanese American community) to come around to the idea that what the resisters did was indeed patriotic.

This, incidentally, is the story at the center of my book Free to Die for their Country (University of Chicago Press, 2001), as well as a couple of articles:  A Penny for their Thoughts:  Draft Resistance at the Poston Relocation Center (Law & Contemporary Problems) and Constitutional Conscience (B.U. Law Review).

Posted by Eric Muller on October 3, 2007 at 10:09 AM in Books | Permalink | Comments (2) | TrackBack

Some Problematic Arguments About Justice Thomas and Anita Hill

I haven't yet read Justice Thomas's book, but, like many of you, I watched his 60 Minutes appearance with interest and have been following some of the early returns in the newspapers and blogs, including Edward Lazarus's review of the book, and this NYT op-ed by Anita Hill, published yesterday.  It seems to me that two kinds of problems arise whenever people turn to this controversy, whether in 1991 or since then.  The first is that ultimately much turns on a he-said, she-said dispute, and so argument tends to devolve into a tendentious sifting of the circumstantial evidence.  The second is that discussion about Justice Thomas seems almost inevitably to turn on questions about what it means to have a (black) political identity, and the relationship between one's personal and political identity and one's jurisprudence.  In reading these latest items, I see some of those problems rearing their head yet again.  For instance: 

1) Lazarus writes, in what ultimately becomes a patronizing passage, that Thomas's memoir should have focused more on the discussion of his upraising.  This is so, in his view, because Thomas's personal conservatism and the lessons of self-reliance he was taught as a child lead naturally to his jurisprudence, which is "most notable for his virulent opposition to affirmative action (including a rejection of the idea, belied by Thomas' own experience, that minority students learn better in a multi-racial environment), his attack on the constitutionality of New Deal-style social programs and his support for a more active role for religion in public life."  I don't see Lazarus's basis for drawing confident conclusions about what Thomas's own experience suggests about the benefits of multi-racial learning, and I'm not sure he's characterizing Thomas's views accurately anyway.  But is it not possible that Thomas actually has jurisprudential or methodological views about the Constitution?  Can we not take him seriously enough to examine those views on that basis, or is there something especially fixating about his identity that requires us to view him only as a psychoanalytic object?  And why, anyway, is whether Thomas did or did not benefit from affirmative action at Yale in his 20's especially relevant to whether or not he thinks public universities are, under the Fourteenth Amendment, entitled to engage in the practice?   

2) On the factual dispute, take Anita Hill's op-ed yesterday.  Hill writes that Thomas's characterization of her "is hobbled by blantant inconsistencies.  He claims, for instance, that I was a mediocre employee who had a job in the federal government only because he had 'given' it to me.  He ignores the reality: I was fully qualified to work in the government, having graduated from Yale Law School, and passed the District of Columbia Bar exam, one of the toughest in the nation."  I confess I don't see the two as blantantly inconsistent.  (And I'll note but duck the obvious but unfair jokes about whether "fully qualified to work in the government" is an especially strong statement.)  It is just possible to graduate from Yale Law School and be a mediocre lawyer; and the DC bar exam has a low pass rate, but it also has a weak pool of applicants, and passing it is frankly not that much of a job qualification.  (I speak as someone who took and passed the DC bar.)  And take Lazarus's op-ed, again.  Lazarus is at pains to point out that Thomas "was a voracious consumer of pornography," and that this interest may have "extended much later into his life."  His point is that this undermines Thomas's picture of himself as "not the kind of man who..."  But surely, not to put to fine a point on it, consuming pornography does not always reveal a predisposition to commit sexual harassment.



These points all favor Thomas, but that's not my goal.  In fact, both Thomas's current defense of himself, which consists in some measure of reprising David Brock's "little bit slutty, little bit nutty" attack on Hill, and Hill's current self-defense, which consists in part of demonstrating what an able lawyer she was -- and which is echoed by Robert Reich's argument that Thomas was an "undistinguished" lawyer and an unqualified nominee to the Court, while Hill had "a distinguished career as a lawyer and legal scholar" -- are more disturbing for what they suggest about the inevitable state of argument in a he-said, she-said debate about sexual harassment.  In the real world, seemingly "decent" men can commit sexual harassment, and many "boorish" men manage not to do so.  In that world, women need not be saints, or lacking in ambition, or perfect workers to be victims of sexual harassment.  Even "mediocre" female lawyers who are "not the demure, religious, conservative person" they want others to believe they are can be victims.  Absent direct evidence other than the testimony of the two people involved, we are still, these many years later, arguing the truth of the dispute by turning Thomas into a pig or a Victorian gentleman, and Hill into a slut or a saint.  This is not fruitful to the formation of any reasonable view of what men are like or what sexual harassment is about; and it further victimizes women by having both supporters and skeptics turn arguments about these women's credibility into referenda over whether these are "good" women.

In the end, on the sexual harassment issue, it seems to me that the most important statement both of these individuals have made is "I stand by my earlier statements."  After that, no matter how much we might wish for certainty, discussion about the circumstantial evidence is more likely to be harmful than helpful, and our conclusions are likely to be substantially determined by our political predispositions.  The sexual harassment occurred or did not (or to be more precise, as some reasonable commentators have pointed out, it did or did not occur, but with different subjective experiences by both of the parties involved), but it is unlikely that tendentious fact-parsing will get us any closer to an answer to that question; and it just may get us closer to perpetuating the kinds of hero-vs.-victim stereotypes that do neither men nor women much good.  And on the question of Justice Thomas's background vs. his views, at some point we might abandon our endless psychoanalysis on the subject of male black identity and do him the honor of supposing that he has actual views about constitutional interpretation, whether those views are right or wrong.  After all, I don't spend all my time wondering whether the jurisprudence of my favorite bien-pensant white liberal Justices was the unevitable result of a crippling lifetime of affluence and good fortune; I actually assume some of them have ideas.

Posted by Paul Horwitz on October 3, 2007 at 09:15 AM in Law and Politics | Permalink | Comments (3) | TrackBack

Why No Kelsen?

Thanks to Dan for inviting me on Prawfsblawg. I thought I would use my blogtime to talk about some peculiarities and prejudices of philosophy of law in the United States.

First topic: Why don’t American philosophers of law talk about Hans Kelsen (1881-1973)?

It’s pretty much impossible to overemphasize the important of Kelsen in non-English-speaking countries. H.L.A. Hart is usually offered as the most famous English-speaking philosopher of law in the twentieth century. But I was able to find only 17 books published between 1983 and 2003 that were devoted predominantly to Hart, while there were over 75 published on Kelsen in the same period. (This ignores, of course, the crushing number of articles on him.)

Interest in Kelsen isn’t limited to German-speaking countries by the way. In fact, he currently has the greatest influence on Latin Americans and Italians (who, it has been said, suffer from “Kelsenitis”).

The point is that Kelsen is clearly the most important philosopher of law of the last century and there is practically nothing of substance written on him in this country. Furthermore, the casual comments about him made by Americans, even Americans who are accomplished philosophers of law, usually betray no familiarity with his writings. This is a real puzzle.

Of course, there is Stanley Paulson at Wash U., the dean of Kelsen studies (arguably not just in this country but in the world). But Paulson is the exception that proves the rule. Just as Kelsen doesn’t get the attention he deserves in the U.S., neither does Paulson, precisely because he writes about Kelsen.

Aside from Paulson, the number of recent articles that have been written on Kelsen by Americans can practically be counted on one hand. I wrote a piece on him a few years back. Jeffrey Brand-Ballard, a philosopher at George Washington, published something back in 1996, as did my law-school friend Danny Shivakumar (who died, tragically, earlier this year). Another recent piece is by Jeremy Telman, at Valparaiso, which concerns why Kelsen is so underappreciated in this country. (I disagree somewhat with Telman’s diagnosis below.)

Indeed, Americans have a long history of dissing Kelsen. When he escaped Nazi Europe in 1940 and came to the United States, he couldn’t get a permanent position in a law school here, even though his reputation as a philosopher of law was already established. He was also an important player in constitutional theory (having drafted the Austrian Constitution of 1920) and in international law. But the only job he could get was in the political science department at Berkeley.

So what gives? What is there about Kelsen that Americans don’t like?

The problem, I think, is that Kelsen’s approach runs against the two dominant trends in American philosophy of law. Most Americans look at law and legal systems empirically – as fundamentally involving questions of social facts. The competing view, represented by Dworkin and Finnis, considers legal facts to be, at least in part, moral facts.

Kelsen rejected both views. For him, the law was neither empirical nor moral. The best analogy I can think of is the way many philosophers talk about language. A language correlates certain physical things (e.g. strings of letters or phonemes) with linguistic meanings. For example, “Es regnet” means it rains in German (but nothing in English). For Kelsen, legal systems correlate certain social events (people raising their hands in a room) with legal meanings (a statute being enacted). And just as many philosophers consider linguistic meanings to be abstract objects – neither empirical nor moral – Kelsen thought the same thing was true of legal meanings.

One benefit of Kelsen's approach is that it allows the underlying logical structure of legal systems to be revealed, just as the philosophers' approach to language reveals its logical structure. But more on that (maybe) later.

P.S. Three more recent pieces by Americans on Kelsen. One by Jeffrey Lipshaw, one by Andrei Marmor, and a chapter entitled "Kelsen versus Hayek" in Richard Posner's Law, Pragmatism, and Democracy. But this still pales in comparison to the amount of work done on Hart in this country.

Posted by Michael S. Green on October 3, 2007 at 07:47 AM in Legal Theory | Permalink | Comments (11) | TrackBack

Tuesday, October 02, 2007

Junior Federal Courts Conference @ American University -- April 3-4, 2008

I was going to post about the verdict in the Isiah Thomas case, but, well, that would be a slight conflict of interest (hint: see if you can find the name of the plaintiff's lawyer). So, I'll just say "Let's Go Knicks," and leave it at that. (After all, baseball season is certainly over.)

Instead, I wanted to post the announcement about a really exciting conference my new colleague Amanda Frost and I are putting together for junior Federal Courts prawfs. It's going to be April3-4, 2008, here at American University Washington College of Law (it's a mouthful), and it will feature panels on scholarship, the place of Federal Courts in the larger legal academy, and various pedagogical issues. Janet Alexander, Dick Fallon, Jim Pfander, and Judith Resnik will be moderating the panels, and it should be a great chance for folks teaching or writing in the field to connect, share their work, and otherwise enjoy the cherry blossoms!

The announcement itself is available here.

Posted by Steve Vladeck on October 2, 2007 at 12:56 PM in Steve Vladeck, Teaching Law | Permalink | Comments (1) | TrackBack

Why I Love the Forward Newspaper

Good for the Jews.

Bad for the Jews.


Posted by Administrators on October 2, 2007 at 09:33 AM in Current Affairs | Permalink | Comments (1) | TrackBack

A Brief Hello; When Piracy Loses its Lustre

I am so pleased to be a part of Prawfs for the month! --My sincere thanks to Dan & the gang for bringing me on board.

A few recent posts have noted musical taste. Monday's spate of news about Radiohead allows me to not only follow that trend by discussing one of my favorite bands--I know I'm not alone in being shaped, years ago, by end-on-end playing of The Bends--but also to discuss an issue relevant to the field in which I teach and write.

As indicated by the band's site and this piece (one of many), Radiohead has decided to offer its latest record, In Rainbows, via only its website, at least initially. In addition to a sizeable discbox (approx. US$82), the band is offering a digital version which may be downloaded at a price decided by the user (minimum one British penny, or approx. US$0.02, plus a surcharge of about US$0.91). The digital download will be unencumbered by DRM (digital rights management--that software which prevents you from, say, burning that great playlist you got via iTunes onto more than seven CDs). Ostensibly, there is no reason to pirate something one can purchase for under a dollar--and most likely, some folks will download the CD and pay more than the minimum amount (and still others will buy both the digital and discbox versions). Will the Radiohead business model catch on? If so, how might you envision the distribution rights agreements (as but one example of the potential impact) of the future?

Posted by Nadine Farid on October 2, 2007 at 03:30 AM in Intellectual Property | Permalink | Comments (3) | TrackBack

Monday, October 01, 2007

Might He Also Have Mentioned The Governator?

An amusing moment in today's Supreme Court argument in the Washington State Grange case:

JUSTICE SOUTER:  [G]oing back to my question, do you know any people who go around saying, well, you know, I really prefer the Democrats; I'm a Republican myself?  I mean, that doesn't happen.

MR. MCKENNA:  Well, the example of Senator Lieberman comes to mind, where he said I really prefer the Democrats and I'm running as an independent.


JUSTICE SOUTER:  There's always one.

Posted by Eric Muller on October 1, 2007 at 10:25 PM in First Amendment | Permalink | Comments (1) | TrackBack

Yale and Military Recruiters

The sentence that intrigued me in today's NYTimes article about Yale Law School's decision to relent and allow military recruiters on campus was the last one in this paragraph:

"[I]n 2002, the federal government threatened to withhold the millions it grants to Yale every year, mostly for medical and scientific research, if the law school did not accommodate the recruiters. The law school complied, but 45 members of its faculty filed suit, challenging the law as an infringement on free speech and association as well as academic freedoms. (Yale College has not restricted the activities of military recruiters.)"

Ouch.  Why, one wonders, with the law school sticking its neck out on this, did Yale College not back the law school up?

Posted by Eric Muller on October 1, 2007 at 07:17 PM | Permalink | Comments (2) | TrackBack

Supreme Court Preview

Horwitzpreview_2     As the Supreme Court kicks off its Term, let me mark the occasion by noting that my own law school, the University of Alabama School of Law, last week offered a Supreme Court Preview, in which our professors discussed some of the Court's upcoming cases, including cases involving criminal sentencing, child pornography, the dormant Commerce Clause, the Securities Act, and other issues the Court will confront this year.  Visiting Professor Ron Krotoszynski also offers a discussion of some of the cases for which the Court has just granted cert, as well as a potential blockbuster still pending on the Court's cert docket involving the Second Amendment.  As the still shot indicates, yours truly also spoke, about the "Guantanamo" case, Boumediene v. Bush.  The whole thing is available online, segmented by speaker, and viewers are welcome.  You can find it here.  Enjoy. 

Posted by Paul Horwitz on October 1, 2007 at 02:37 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

I Don't Know Why I Say Goodbye

Thanks to Dan and everyone for letting me come visit.  Sorry I didn't ever get to talk about professional wrestling, but I think most everything there is to say about the Chris Benoit tragedy has probably already been covered.  (However, this weekend I did meet yet another law professor (who shall remain nameless) out there who knows a thing or two about pro wrestling, so it ain't just me who finds this stuff fascinating.)  Instead, I'll leave you with the following link to an article about the favorite Beatles songs of various celebrities.   (Brad Pitt's is either Come Together or While My Guitar Gently Weeps, if'n you care.)  Here's the list in my household:

The Wife:  Eight Days a Week

The Son:  I'm Only Sleeping (he's a pretty cool little kid)

The Daughter:  I Feel Fine (according to her, it's about a daddy talking about how much he loves his daughter ("I'm so glad that she's my little girl"))

Me:  Tie -- I Feel Fine (see above for the explanation)/Ticket to Ride

Ever wonder what your favorite legal celebrity's favorite is?

Posted by Alex Long on October 1, 2007 at 12:58 PM | Permalink | Comments (3) | TrackBack

Blogging to Come ...

Many thanks to Dan Markel and the other Prawfs for the opportunity to guest-blog here this month.  My blogging style tends to be a bit goofier than the standards of erudition here at Prawfsblawg would counsel, so I'm going to try to clean up my act a bit. 

A good chunk of my blogging this month will probably relate in one way or another to the subject of my forthcoming book American Inquisition:  The Hunt for Japanese American Disloyalty in World War II.  It's a history of the vast bureaucracy that the government ran between 1943 and 1945 to adjudicate, on a a case-by-case basis, which of some 40,000 incarcerated US citizens of Japanese ancestry were "loyal" and which were "disloyal."

More on that later.  For now, let me just note that my American Inquisition (release date of 10/15/07) is not to be confused with deathrock band Christian Death's new CD American Inquisition (release date of 10/23/07).  I am often mistaken for someone who would work in "a subgenre of punk rock and Goth which incorporates elements of horror and spooky atmospheres within a Goth-Punk style," so do not be fooled.

Posted by Eric Muller on October 1, 2007 at 09:47 AM | Permalink | Comments (0) | TrackBack

The Intersection of Rights and Regulation

A new book from Ashgate, edited by Bronwen Morgan, inquires about different approaches to regulation and governance. Here is the blurb:

Policy makers and social actors increasingly face inter-related and inter-penetrated levels and realms of governance. The effect is that some of the intuitive contrasts between rights and regulation are no longer tenable. As the essays collected in this volume show, different combinations of rights and regulatory claims serve as barometers of current changes in political economy. These are not only restructuring political space, but also changing the assumed relevance of rights and regulation. Bringing together a range of fresh perspectives on socio-legal scholarship from a variety of disciplines, The Intersection of Rights and Regulations will have worldwide interdisciplinary appeal.

An excerpt from a review by Stuart Scheingold describes: 'This book challenges the conventional wisdom that views rights and regulation as incompatible and irreconcilable instruments of policy, arguing that they are better understood as "overlapping and complementary aspects of…disputing and rule-elaboration." This surprising finding is firmly grounded in the well-theorized original research that this volume presents, ushering in a promising new line of inquiry in socio-legal scholarship.'

In addition to an excellent introductory chapter by Morgan, the chapters explore a range of issues from the perspective of the tensions and complementarities of the rights and regulation framework, such as minority and gender rights, land-use planning,  and human rights and policies the World Bank. The second chapter in the book, entitled, Form and substance in labour market policies, is by yours truly. I think the book is great for anyone who researches or teaches in the areas of civil rights, human rights, law and development, and the administrative state.

Posted by Orly Lobel on October 1, 2007 at 12:46 AM in Orly Lobel | Permalink | Comments (1) | TrackBack