« April 2008 | Main | June 2008 »

Saturday, May 31, 2008

So Long, Prawfs

It's time for me to sign off PrawfsBlawg. The early part of this week, I had been thinking about how I could do a bang-up good-bye post. I figured I had the whole back-half of the week to write a real coup de grâce finale. But then my son brought home from daycare a virus - probably originating from some kind of alien hive in another galaxy - and I have spent most of the whole last part of this week savoring the calming coolness of the linoleum bathroom floor against my face.

So on that note, let me just say that my time on Prawfs has been an absolute blast. My thanks to all the Prawfs for having me. I hope some of you readers will follow me off Prawfs and on to my IP/entertainment law blog, Pixelization, and to my humor blog, The Backbencher.

Have a great summer!

Posted by Eric E. Johnson on May 31, 2008 at 10:47 PM | Permalink | Comments (2) | TrackBack

Conferences aimed at junior faculty

For the last few days, I’ve been at the Law and Society conference in Montreal.  One of the things that I have learned from talking with people here is that there are a lot of different conferences aimed at junior faculty, and that many junior faculty with whom I’ve spoken do not know about them. It seems like it would be useful to put together a list enumerating these conferences and giving a bit of information about each one. (Some conferences, like Law and Society, are open to everyone; others, like the junior crim profs gathering in DC every summer, are limited to specific topics; and others still, like SEALS, are limited to specific geographic areas.) 

I would really appreciate it if anyone involved in a conference targeted at junior faculty would send me an email (in the next week or so) giving the name of the conference, when it is usually held, who is welcome,  and who to contact if people are interested in attending or presenting.  Since this is the last day of my blogging, I’ll send the list to Dan for posting.  My email address is [email protected] Thanks.

Posted by Andy Hessick on May 31, 2008 at 04:37 PM | Permalink | Comments (4) | TrackBack

Friday, May 30, 2008

Consensus on vouchers and the Establishment Clause?

I've been away, for the past few days -- crashing Princeton's Reunion and participating in the annual Law and Public Affairs reunion conference (on "Law and Religion") -- and so have missed the conversation on civility, slippery slopes, and the like.  In any event -- and I hope this is not too awkward or clunky a segue -- I was struck, at the conference, by the proximity-to-consensus revealed at the conference, among a wide range of engaged law-and-religion scholars, on the proposition that the Constitution's no-establishment rule need not, and should not, be understood to prohibit using public funds to pay the tuition of students attending qualifying religious schools.  The "Memorial and Remonstance" / "three pence" / violates the conscience argument seemed to receive -- again, from a number of people who disagree on many other things -- a respectful wave, but little more.  If I remember correctly, Sandy Levinson suggested that the argument is, in today's conditions, pretty much irrelevant to the school-voucher and charitable-choice questions.  (That said, Laura Underkuffler, I should emphasize, did present clearly and powerfully a no-funding argument.)

Now, this near-consensus is, in my view, a good thing.  Still, I couldn't help but be struck by the fact that what is often, in the First Amendment course, taught as, and treated in the cases as, something of a constitutional Ur-text, seemed to carry so little weight with respect to what was, just a few years ago, *the* law-and-religion question.  Interesting.

Posted by Rick Garnett on May 30, 2008 at 03:17 PM in First Amendment | Permalink | Comments (9) | TrackBack

Best "slippery slope" argument to date...

...by Eric Posner, on Slate's blog.

But is Posner's argument really a "slippery slope" argument? I'd say that Posner's argument is an example of Burkean conservatism, which opposes all rationalistic debate about all social institutions, on the theory that, once one starts to demand reasons for conventions, conventions (good and bad) unravel, because human reasoning powers are weak.

I excluded Burkean arguments from the ambit of "slippery slope" arguments, because they prove far more than most "slippery slopers" would every concede -- namely, that we should all be very cautious Tories about any suggestions for social reform. As a semi-cautious Tory myself, I applaud the sentiment. And I hereby exempt the "Burkean" version of the s.s. argument from all of my previous objections. But I rather doubt that many folks will accept my invitation to join the Tory bias for the status quo. (Note that, if one has such a bias, one should resist all efforts to overturn Roe v Wade, as that precedent has been around so long that rationalistic critique of the decision would violate Tory principles).

Posted by Rick Hills on May 30, 2008 at 02:20 PM | Permalink | Comments (0) | TrackBack

Why do conservatives keep on invoking the "slippery slope"?

As a conservative myself, I'd like an answer to this mystery -- even at the expense of posting one more item (I swear, my last) on the topic. The "slope" is by far, the weakest and least plausible argument against same-sex marriage (see my last post on the subject). Why won't it go away?

Here are five suggested explanations:

(a) Volokh's over-broad definition of "slippery slope": Gene Volokh defines "slippery slopes" to include any action A that will tend to lead to B (bad result). But that definition is language abuse. Example: The State's authorizing the immediate execution of all gay couples might very well lead to the legalization of same-sex marriage, as a sort sympathetic reaction. (Think about how the Holocaust led to creation of Israel). But it would be nuts to say that killing gays puts us on the slippery slope to gay marriage. Volokh, like many economically inclined conservatives, conflates causation and reason, probably because of an economist's obsession with revealed preference (action) and disdain for rationale. That handicaps his capacity to explain tropes that deal with rhetoric rather than result. (His ’03 piece on slippery slopes is otherwise a wonderful piece, by the way: It just is not about slippery slopes but rather about legislative dynamics).

(b) Confusion about the rationale for same-sex marriage: Obviously, if the rationale were that everyone ought to be permitted to marry anyone or anything that strikes their lustful fancy, then such a libertarian rationale would "slip" very far. But that rationale is a conservative straw man: The real rationale that dominates the discourse is precisely what I described in my last post on this topic.

(c) Confusion about the distinction between the Slippery Slope and the Tendentious Talking Point: Many conservatives simply confuse the tendentious talking point with the slippery slope. The claims on behalf of gay marriage might be mistaken: Maybe same-sex couples do not have monogamous relationships that partake of all the same emotional benefits as hetero relationships. (Roger Scruton made such an argument for difference in his book on the philosophy of sex). But this objection -- that the argument is wrong on the merits -- has nothing to do with the slippery slope.

(d) Bastardized Burke: Some conservatives think that all sexual traditions stand or fall together -- that once one begins to reason about sex, then the whole system of sexual regulation must necessarily unravel, because blind adherence to tradition is what keeps people on the sexually straight and narrow. Again, this argument might be right (I doubt it), but it is a mere claim about empirical psychology: It has nothing to do with the slippery slope, which is a mode of argument, not a worry about empirical prediction. (See comment on Volokh above)

(e) Activism begets activism: One might argue that, if one rejects possibility of procreation as a permissible basis for marriage, then one is necessarily committed to rejecting the ideals of romantic love as well, because both ideals are matters of perfectionist judgment that an activist could, in theory, reject. But being activist does not commit a judge to being anti-perfectionist: So long as one believes that the process of Senate confirmation will insure that lunatic sexual liberationists do not sit on the High Court, the states' laws against bestiality and polygamy and such are certainly safe. The rule of law, of course, might be endangered, as Justice Kennedy deals out judgments by personal fiat. But it is simply implausible that his fiat will ever go much beyond gay marriage, for purely political reasons: He -- like his successors -- will always reflect mainstream elite opinion, and (judging by Oprah's book selections and, more generally, the taste of talking heads for the fiction of Ian McEwan), elites still seem to think that sappy ideals of monogamous romance are fine.

Is there anyone out there who has a different version of the “slippery slope” that I have overlooked? If so, I’d love to hear about it.

Posted by Rick Hills on May 30, 2008 at 09:35 AM | Permalink | Comments (2) | TrackBack

More on slippery slopes & same-sex marriage

In response to a recent post of mine on slippery slopes, several commentators offered responses that suggest I was unclear. So here is a clarification that, I hope, in painful detail, eliminates all ambiguity about why I believe that the justification for same-sex marriage does not "slip" us into a sexual Babylon.

First, consider the justification for same-sex marriage. The overwhelmingly dominant rationale for same-sex marriage is that same-sex couples are indistinguishable from hetero couples on the usual romantic grounds -- capacity for reasoned speech, desire for an exclusive relationship with a unique and singular other, etc. On this reasoning, the only morally relevant distinction between hetero and same-sex couples is that the latter cannot procreate with each other. But once the Court and government generally accepts that contraception and non-procreative sex are fully legitimate activities, the moral-legal relevance of this fact vanishes.

Second, note how this very, very narrow and well-defined justification does not "slip" down the "slope" using either "sorites" or "reductio ad absurdum" reasoning to polygamy, bestiality, or any other sexual practice. For instance...

(a) Mainstream advocates of same-sex marriage do not question the ideal of exclusive love, in which a single person is elevated above the rest of the world as an object of exclusive affection of unique intensity. This ideal of the unique soul mate may be good or bad, but it is certainly well-defined. (Consider, for instance, Aristophanes' speech about the erotic search for one's other half in Plato's Symposium). And the "soul mate" ideal obviously and clearly excludes polygamy. Hence, so long as the Court accepts this ideal as a basis for marriage law, laws banning polygamy are safe. And no one is asking the Court to dump this rationale as "arbitrary," "invidious," etc.

(b) Mainstream advocates of same-sex marriage do not deny that humans should unite the sexual with the social, emotional, and intellectual -- another well-defined and long-standing ideal of romantic love. Again, one need not accept the ideal to understand how it excludes copulation with any creature not endowed with the power of reasoned speech. Again, so long as the Court does not question this ideal as the basis for legislation, laws banning bestiality are safe. And, again, no one is asking the Court to dump this ideal as "irrational," "arbitrary," etc.

And so forth: It is obvious that one could repeat this exercise for every marcher in the parade of horribles proffered by the opponents of same-sex marriage, given the very narrow and well-defined justification for same-sex marriage offered above (which is, again, the overwhelmingly dominant justification in the press, the scholarship, the speeches, op-eds, and the judicial opinions. Yes, the sexual advice column of the Village Voice whistles another tune -- but their readers are a bogeyman of the Right, not a serious force behind same-sex marriage).

So, please, please, please stop the "slippery slope" rhetoric on same-sex marriage. Object as much as you please to the idea -- but on the merits and not on the ground that the justification for same-sex marriage somehow "slips" us down the "slope" to a sexual Babylon.

Posted by Rick Hills on May 30, 2008 at 09:13 AM in Constitutional thoughts | Permalink | Comments (6) | TrackBack

Civil Rights Lawyers' Ignorance of Local Government Law

The Court handed down Riley v Kennedy, 07-77, this week. Riley is a singularly tedious Voting Rights Act decision, and the result was predictable: 7-2 for Governor Riley, with the Court holding that the Alabama legislature's statute allowing local elections of county commissioners did not change the "baseline" of election practices when (a) the statute violated the state constitution and (b) the statute had been struck down by the state supreme court as soon as humanly possible.

An election law blog notes that my colleague Rick Pildes noted that the case illustrates the Court's trend away from the maximal enforcement of the Voting Rights Act. The same blog notes that I had earlier described the case as "trivial." (Actually, I described the plaintiffs' argument as trivial -- a bit of a difference).

But hidden in Riley is actually a larger moral: The feds should be extra-cautious about messing with state and local governments' structure. Here's the hook between this principle and the case: The Alabama Supreme Court's initial decision that the feds were being asked to veto actually advanced minority voting rights. Why? The state court had declared that the state legislature could not enact "special legislation" authorizing elections to fill vacated commission seats only in Mobile County: Instead, the court held that the state legislature would have to authorize such elections for every county in Alabama (which, indeed, the state legislature later did). This rule against special elections is a common one in state constitutions, and it serves the purpose of enhancing local autonomy by preventing state politicians from micro-managing one jurisdiction's local affairs.

Elections for every county in the state are obviously superior to elections in a single county if you are a minority voter. But the plaintiffs wanted the Feds effectively to nullify the state court's decision that bestowed this boon on minority voters because the state court's decision would prevent the election of a particular county commissioner. In other words, the plaintiffs, pursuing a short-term political advantage, would have vetoed a state constitutional doctrine that benefited minority voters over the longer term.

How could civil rights attorneys be so short-sighted? I suggest that the reason is their fundamental inexperience with local government and its peculiar issues. For the same reason, civil rights attorneys have thrown obstacles in front of annexations that simultaneously dilute minority voting strength yet increase urban tax base. In the annexation cases, it is obvious to anyone not in thrall to simplistic notions of of voting power that there is no easy answer to what will protect minority interests: Eliminate the annexation, and you give the Black majority of a declining city the dubious benefit of being captain of a sinking ship. Yet civil rights attorneys rigidly fought such annexations until the Court, in City of Richmond v. United States, 422 U.S. 358 (1975), held that such annexations could go forward so long as they maximized minority voting rights in the newly enlarged city. Riley, like City of Richmond, protects minority voters from the ignorance of civil rights lawyers.

In short, federal interference with local and state governmental structure is a dubious enterprise until the feds and their private surrogates, the civil rights bar, educates themselves about the arcane workings of non-federal government. Since this is unlikely to happen soon -- both the civil rights mentality and division of labor pose probably insuperable obstacles to structural subtlety -- one might want to limit federal interference with local structure except in the most plain cases of purposeful racial discrimination.

Posted by Rick Hills on May 30, 2008 at 07:50 AM | Permalink | Comments (10) | TrackBack

Thursday, May 29, 2008

Konomark t-shirt giveaway!!

Konomark_tshirtIn what I believe to be another PrawfsBlawg first from yours truly, I am proud to announce a t-shirt giveaway!

I am sending a high-quality all-cotton t-shirt with the attractive konomark logo to the first 25 law professors who konomark any of their teaching materials or website content. (Rendering at left.) And yes, adjuncts are, of course, happily included.

The konomark symbol on your website, or on certain content within your website, invites visitors to ask you if they can use your copyrighted content without compensation. By konomarking PowerPoint presentations, mindmaps, handouts, or other materials, you’re saying, “Hey, I'm easygoing about sharing. So go ahead and ask me.”

Unlike Creative Commons licenses or the GNU Free Documentation License, konomark does not involve any surrender of intellectual-property rights. It’s just a way of signaling friendliness when it comes to your copyrighted stuff.

I announced the konomark project on PrawfsBlawg some weeks ago. You can read more about it on the project website.

This giveaway expires in two months, when I will probably take any leftovers to iSummit in Sapporo. E-mail me at [email protected] with questions or to claim your prize. Specify your desired size. Act early for the best selection. Allow several weeks for delivery. Void where prohibited.

Posted by Eric E. Johnson on May 29, 2008 at 12:36 PM in Information and Technology, Intellectual Property | Permalink | Comments (2) | TrackBack

Bear Stearns Buyout Approved

Details here.  All the hullabaloo -- discussed here and here -- has died down.  Why?

The deal's approval comes as no surprise -- since offering to take over the firm two-and-a-half months ago at the behest of the U.S. government, JPMorgan Chase & Co. has purchased nearly half of Bear Stearns Cos. stock, virtually guaranteeing shareholder approval. JPMorgan also upped its initial offer of $2-a-share to $10-a-share after outcry from Bear Stearns shareholders, many of whom are employees that JPMorgan intends to keep on staff.

The $10 was apparently enough to buy off those shareholders with other interests to pursue.  Perhaps those interests -- such as employees worried about their jobs -- were taken care of as well.

Posted by Matt Bodie on May 29, 2008 at 12:15 PM in Corporate | Permalink | Comments (0) | TrackBack

Drug Prosecutions: Racial Disparity, San Diego State and U.S. News Rankings

Human Rights Watch recently reported that the depressing old story that African Americans are disproportionately drug defendants remains true. (News story here.)  One reason may be political;  drug search warrants of wealthier, whiter neighborhoods have a higher success rate (see Lawrence Benner, Racial Disparity in Narcotics Search Warrants, 6 Journal of Gender, Race and Justice 193 (2002)) suggesting that the standards are higher to search there.  The police understandably avoid making mistakes with people having the power to retaliate: "If you search the King, the King must be holding."

There are, I am willing to bet, active drug networks at Andover and Spence, at Williams and Harvard, but generally, they are let alone unless they go out of their way to attract police attention.  That's why the recent DEA drug investigation and raid at San Diego State University is so interesting. 

Leaving affluent kids alone is, I think, essential to the political stability of the War on Drugs.  Why don't headmasters and deans at elite schools beg for the services of undercover narcotics investigators, who could develop solid cases against young dealers for multiple felonies and then pack them off to state prison for double-digit terms (forfeiting their trust funds in the process, of course)?  Would that not delight parents and fellow students would then be protected from these criminals?  My bet is that parents and students would instead say that police have better things to do than arrest good young people for conduct that millions have engaged in, conduct which, at least as to these kids from fine families, warrants rehabilitation and treatment, not punishment.    

This approach was abandoned at SDSU, where 75 students were arrested and charged with serious crimes.  (NPR story here).  So we are given a perfect conflict: Strong cases based on months of investigation of sitting ducks with a complete lack of basic drug dealer professionalism, serious charges that could send these kids to state prison, and affluent defendants whose parents (and I can hear the popping of champagne corks even here in Tucson) are about to confer a substantial windfall (75 defendants!) on the   best criminal defense attorneys in Southern California.

The leadership of SDSU has sown the wind, and now reaps the whirlwind.  What happens next?   Are these kids on the conveyor belt to prison as if they were  ordinary street dealers from the hood?   If so, and maybe even if not, there may well be substantial negative reputational and admissions consequences for SDSU.  "[A]lmost half the nation's 5.4 million full-time college students abuse drugs or alcohol at least once a month." With a 21 year old drinking age and minor-in-possession laws, half of all college students are at legal risk every month, and no law makes them attend SDSU or any other particular college.  Kids considering experimenting with drugs or alcohol are less likely choose SDSU if they have an alternative that does not boast about its exchange program with San Quentin; parents don't want their kids to take drugs, but I don't think most believe that prison should be a first resort should their children make bad choices.   In any event, because prisoners cannot enroll for classes or pay tuition (and drug offenders cannot get financial aid),  encouraging prosecution of the substantial fraction of substance abusing students is, as a practical matter, unlikely to be a workable strategy for higher education.

On the other hand, perhaps traditional arguments about who the dangerous offenders are will prevail, and most of these kids will get diverted and sent to Hazleden.  If so, the police will be furious that they laid their lives on the line--some of the San Diego Scarfaces had guns--for nothing.  Law enforcement will not soon return down that particular road when they can spend their time on cases that will stick.  Equally importantly, if these kids get special treatment, the questionable demographic effects, the apparent selective enforcement, inherent in the War on Drugs will be highlighted once again in the context of a case that made national news.

The unsatisfactory nature of either outcome explains why both universities and law enforcement authorities have regarded this kind of operation as a lose-lose proposition--have a mandatory drug education day instead.  My prediction is that the university-law enforcement partnership for undercover drug investigations is an idea whose time has not come, and the SDSU administration's approach will not be emulated by other institutions of higher learning.

Posted by Marc Miller on May 29, 2008 at 01:38 AM in Criminal Law | Permalink | Comments (10) | TrackBack

Wednesday, May 28, 2008

The Museum of Intellectual Property

Museum of Intellectual Property specimensPerhaps more than any other field of law, intellectual property calls for illustration. The landmark cases of IP law have facts that beg to be seen, as well as read.

That’s why I’ve begun a project called The Museum of Intellectual Property. The aim of the museum is to serve as a resource for teachers, students, and scholars of IP law.

It's also to preserve an important facet of legal history. The very meaning of the law of intellectual property is bound up with the inventions, artistic works, and trademark-bearing products at the heart of leading cases. So making these physical objects available for inspection is, I think, a worthwhile endeavor.

The museum’s collection currently includes some 100 physical artifacts that embody the patents, copyrights, and trademarks fought over in scores of lawsuits. Among the items: a Qualitex green-gold press pad cover, a Stiffel pole lamp, a Motorola SportsTrax pager, Millar's 1752 printing of "The Seasons," a theatre program for Abie’s Irish Rose, and a print of Gary Saderup's illustration of the Three Stooges - signed by the artist. The collection also includes the objects you see in the pictures to the left. In addition to the physical objects, there will also be audio specimens and digital images from still more cases.

I've now started to put the museum online. I’ll roll out one exhibit at a time, debuting each as a post on my Pixelization blog. The premiere exhibit page shows a dual-spring road sign from TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001). The sign was a generous gift from TrafFix – for which I am very grateful.

I hope you find the museum interesting. If you have any comments or suggestions, I would be very glad to hear them.

Posted by Eric E. Johnson on May 28, 2008 at 08:10 PM in Intellectual Property | Permalink | Comments (3) | TrackBack

A Nail in the Coffin of the Dicta/Holding Distinction?

We spend a lot of time teaching the students what constitutes a holding, and how to distinguish a holding from dicta.  But as a practical matter, it seems that the distinction has largely lost its importance.  Lower courts almost always treat dicta in Supreme Court opinions as equivalent to holding.  Even the Supreme Court frequently treats its dicta as equivalent to holding.

Yesterday, in Gomez-Perez v. Potter, the Court went one step further and classified some dicta as holding.  The case is about whether the ADEA, specifically 29 U.S.C. § 633a(a), authorizes a retaliation claim for a federal employee who claims to have suffered adverse consequences for filing a complaint about age discrimination.  Because the suit is against the government, one subsidiary issue was whether sovereign immunity barred the suit.  To waive sovereign immunity, a statute must clearly state that it does so.  The Court held that it didn’t need to determine whether § 633 contained such a clear statement, because a different provision gave the necessary waiver of sovereign immunity.  But then the Court went on to say: “But in any event, even if §633a(a) must [contain a clear statement], we hold. . . that §633a(a) prohibits retaliation with the requisite clarity.”  Maybe I am being too picky, but this seems to me a misuse of “holding.”  Introducing the sentence with “even if” suggests that the premise of the sentence is counterfactual, so the conclusion is not necessary to the reasoning of the decision. 

Classifying the conclusion as holding may reflect that the Court wants lower courts to view its dicta as binding.  That makes sense, I suppose, because the Court may want to answer as many questions as possible in a single opinion because of the small number of cases it takes.  Of course, it might not be so sinister.  Maybe we can chalk the use of “hold” up to careless writing.  After all, the same sentence is already shoddy by using both “in any event” and “even if.”  (The phrase “in any event” includes the concepts of “even if” and “even if not.”)  But even if the use of “hold” is due to carelessness, it still has the effect of blurring the distinction between holding and dicta. 

Posted by Andy Hessick on May 28, 2008 at 10:07 AM | Permalink | Comments (8) | TrackBack

The Times on Rent Control

The New York Times had an article yesterday on apparent efforts by Tishman Speyer Properties to investigate and challenge the status of the residents of its massive Stuyvesant Town and Peter Cooper Villages complexes, some 110 buildings housing 20,000 people in Manhattan.  The photo caption to the story calls them "middle-class complexes," and the story describes them as being "among the city’s largest middle-class redoubts, where nurses, teachers and others could live comfortably and even afford a weekend or summer house."  They are rent-controlled, natch: the story notes that the "average monthly rent at Stuyvesant Town in 2006 was $1,241 for rent-stabilized units and $2,767 for market-rate units."  The issue on which battle joins in the story is whether some residents have maintained other primary residences, which would disqualify them for rent control; they are allowed to own property elsewhere provided it is not their primary residence.  This is one in a recent series of stories the Times has written about firms that have purchased rent-controlled properties in Manhattan and used "aggressive tactics to dislodge rent-regulated tenants."

Of course I don't endorse many kinds of aggressive tactics to dislodge rent-controlled tenants, and some of the other stories the Times has written on this topic have indeed suggested seriously abusive tactics on the part of landlords.  But this story somehow didn't get my tiny violin playing, although the author quite evidently played it for all it was worth.  The story suggests that Tishman Speyer has denied renewal in about 800 rent-stabilized leases in the past 18 months or so.  Of those, "more than 4 in 10 cases were later dropped, while 3 in 10 ended with tenants giving up their apartments."  The story cites serious errors in three denials, none of which the company ultimately pursued.  It suggests that some of the folks who gave up their leases might have been perfectly innocent but surrendered to avoid the hassle, but it doesn't offer any figures to support this.  Nor does it acknowledge that of those "4 in 10 cases" that were dropped by Tishman Speyer, it is possible that the landlord was right in some of those cases, but similarly abandoned its efforts in order to avoid the hassle.  It barely discusses the cases in which people surrendered their leases because they were clearly exploiting the rent-control system -- in the one example cited, a tenant was maintaining a rent-controlled lease while working as an anchorman in Michigan.

And given the numbers and the people involved, the story hardly makes its case that the "ordeal of proving their occupancy" is so stressful and expensive that people give up their apartments despite being entitled to them.  Keep in mind that the average monthly difference between a rent-controlled and a market-price apartment at these complexes, according to the story, is some $1,500.  The average total legal cost of retaining legal counsel to defend one's primary residence status, again according to the story, is $1,100 to $3,500.  Even if you then add in the intangible pain of litigating, surely a rational "middle-class" citizen wouldn't give up so easily.

And consider the victims!  I emphatically don't mean to belittle them.  But the first such couple cited (a retired police detective and his wife, so they're unlikely to be rolling in dough, I want to make clear) owns a summer house on Long Island.  The second owns property in Maryland and Florida.  The third owns property in Virginia.  I can understand the appeal of wanting to maintain a broad spectrum of residents in Manhattan, although I seriously doubt that the benefits of doing so through rent control exceed the costs of the system, and surely a better approach would be to encourage the construction of new housing stock -- say, by eliminating rent control -- while using a combination of market forces and the city's own significant leverage to ensure a distribution across the income spectrum.  But I find it hard to justify maintaining a stock of thousands of rent-controlled units in the heart of Manhattan so that people can afford summer homes. 

Posted by Paul Horwitz on May 28, 2008 at 09:23 AM in Current Affairs | Permalink | Comments (4) | TrackBack

A taxonomy of slippery slope arguments

Eugene Volokh has recently objected to my post deriding the sorts of “slippery slope” arguments invoked in the “same-sex marriage” debate. His post inspired me to take another look at my two very favorite pieces on slippery slope arguments – Fred Schauer’s 1985 piece and Gene’s own much longer 2003 piece (both in Harvard). They are both terrific articles, and they inspire me to generate my own taxonomy of legitimate “slippery slope” arguments, to demonstrate (in order of importance) that (a) I can coin nifty alliterative phrases that will catch on in the blogosphere; (b) I’ve got no hard feelings against Brian Leiter whom I think is an eminently fair-minded, unnervingly prolific guy; (c) slippery slope arguments are generally misplaced in the context of same-sex marriage; and (d) Fred’s account of the slippery slope more accurately captures the spirit of the metaphor than Gene’s.

The essence of the slippery slope is a metaphor about a mountain: The peak of the mountain is stable, the sides are unstable (“slippery”), and bottom of the slope is bad. (If you are an acrophobic non-skier like me, think the top of the ski lift with a jump at the end of the slope). Even if the slope is just as good (or bad) a place to be as the peak, one should stay off those slippery slopes to avoid sliding into a place that is worse than both the peak or the slope – the bottom. To capture the metaphor, therefore, one needs to identify arguments in which a move from peak (P) to slope (S) is attacked despite the apparent harmlessness of S because, once one re-locates to S, one will be inexorably sent to the bottom (B), where S is closer to, but more desirable than, B.

With this definition in mind (which differs from Gene’s in one respect that I’ll clarify after the jump), here’s my taxonomy of legitimate slippery slope arguments:

(1) The Calculated Creep: A vague rule is proposed with desirable applications – but the opponent states that (a) the relevant decision-maker will deviously exploit the vagueness to extend the rule in undesirable ways and (b) no one can come up with a well-crafted amendment to arrest the creep towards the undesirable applications.

(2) The Subtle Sorites: A rule is proposed with desirable applications that requires judgments of matters of degree – that’s the "sorites" -- but the opponent of the rule states that (a) the well-intentioned decision-maker will be unable to determine when the rule has been taken too far and (b) no one can come up with a well-crafted amendment to arrest the creep towards the undesirable applications.

(3) The Recondite Reductio: A rule is proposed that has a rationale with both desirable and undesirable implications – but the opponent states that (a) the well-intentioned decision-maker will not likely distinguish the desirable implications from the “absurdum” and (b) no one can come up with a well-crafted amendment to prevent the absurdum.

Here’s an illustration of all three modes of argument.

Rick: I loathe protests against University's admittedly dumb decisions about honorary degree awardees at festive celebrations of communal unity like graduation ceremonies. These ceremonies should be a DMZ free of the usual political fracas.

Brian: Really? You’d even look askance at a protest of David Duke, the KKK guy?

Rick: Well, uh, I guess that I’d approve of protests against handing out degrees to truly bigoted knuckleheads with no genuine achievement like Duke.

Brian: Great! We’re all going to go to Wash. U. to protest Phyllis Schlafly’s getting a degree. Wanna come? She’s said a lot of mean things about feminism, immigrants, gays, and (gasp) natural selection. Alan Wolfe panned her biography. Get in the van.

Rick: Schlafly?! Gee – she’s sort of close to the line, isn’t she? I mean is she truly a Bigoted Knucklehead? I only want to protest true BKs, for sake of preserving that festive communal atmosphere, etc. Half of the Republicans in the House have probably said all of the dumb things that Schlafly has said. She has not put on a white robe with a pointy top or marched around with swastika like Duke, right? And, unlike Duke, she has a JD and has been one of the most effective political organizers in the 1970s and 1980s – important enough to earn a laudatory biography published by Princeton Press, even if some reviewer that you cite panned it.

Brian: Those are all terrible, rotten, really bad arguments! You just said that you’d allow protests against Duke – and the differences between Duke and Schlafly are just matters of degree (the subtle sorites/calculated creep), so protesting Schlafly follows directly from your own premises (the recondite reductio).

Rick: OK. I’ve had enough. We need a bright-line social norm condemning all graduation protests of honorary degree awardees. The President and Board of an accredited college would never approve a true BK like David Duke, and, once we condone and approve protests against folks like Schlafly, we will be drawn into protests against any person with controversial views and dubious intellectual eminence. It is a slippery slope….

Brian: You are a knucklehead.

Rick: You’re intolerant.

(Just for the record: Brian never called me a knucklehead, I did hint that he might be intolerant, and nothing he wrote about me even came close to crossing any “civility” line. Moreover, his smacking me on his blog earned me envy from all of my Philosophy prawf buddies who said that they had always wanted to be smacked on the biggest philosophy blog in the biz. So thanks, Brian).

In my little dialogue above, “Rick” properly invoked the Slippery Slope. But opponents of same-sex marriage cannot do so. There is no sorites: Same-sex marriage is itself a bright-line category that does not include polygamy, etc. Moreover, the rationale for same-sex marriage is that same-sex couples are indistinguishable from heterosexual couples, except that they cannot procreate with each other. Hard to see any recondite reductio there that will ineluctably draw us into polygamous, polyandrous, bestial, or other couplings.

Gene Volokh has a broader definition of “slippery slope” arguments and thus reaches a different conclusion about the applicability of such arguments to same-sex marriage. He defines slippery slope arguments in his '03 piece to “cover[] all situations where decision A, which you might find appealing, ends up materially increasing the probability that others will bring about decision B, which you oppose.” He urges that it does not matter “whether or not you think that A and B are on a continuum where B is in some sense more of A, a condition that would in any event be hard to define precisely.”

I think that Gene’s broad definition loses the essence of the metaphor. His definition, for instance, would apply to any opposition to a “killer amendment” based on the strategic fear that the amendment, even if inherently desirable, would defeat one’s most preferred position. The locus classicus of such amendments is Representative Howard Smith’s proposal to add gender to Title VII – a move intended to defeat the prohibition on racial discrimination and opposed as such by many liberals who approved of bans on gender- and race- discrimination, because they believed that the amendment would doom the latter. It would be an odd use of language, I think, to object to Smith’s amendment on the ground that it would create a slippery slope towards no prohibition on racial discrimination – but Gene’s definition of slippery slope arguments would allow just such an inappropriate use of the phrase.

In short, the essence of the slippery slope is the inability to come up with an amendment that will constrain decision-makers, either because language or the decision-makers are imperfect. Schauer’s account captures this essence better than Gene’s – although Gene’s article has truly wonderful illustrations on how multi-peaked preferences might scare a legislator silly. But that’s a story for another post.

Posted by Rick Hills on May 28, 2008 at 06:27 AM in Legal Theory | Permalink | Comments (7) | TrackBack

Retributive Damages, Privacy and Procedural Safeguards

Greetings from gorgeous Vancouver, where I'm camped out for the next month at the extraordinarily lovely and temperate surroundings of Green College at UBC.  When not teaching comparative sentencing law and policy to a group of wonderful students this coming month, I'll be working on a couple writing projects: among them, the book on family ties and criminal justice, and the first two installments of my retributive damages trilogy.

Today, I was working on Implementing Retributive Damages, the second of the trilogy, and I've been mulling over the need for procedural safeguards in the context of punitive damages. One puzzle got me thinking, about which I thought I'd invite some conversation. Here's the issue after the jump. Let me know what you think.

In an article published more than a dozen years ago, Professors Marc Galanter and David Luban argued that criminal defendants need additional procedural safeguards because of “two concerns — about the centralized power of the state and about state abuse of prisons and physical violence.” Because Galanter and Luban believe that neither concern is implicated by punitive damages – actions for punitive damages are brought by private parties who cannot obtain relief in the form of physically restrictive punishment – there is no need for increased procedural safeguards. I take issue with this conclusion in the article because it seems to me that both of these reasons are insufficiently defended. Here I want to ventilate part of that critique by focusing here on the first reason; what follows is still quite tentative so please take it in the spirit of a trial balloon rather than a conclusion of my well-considered views.

Specifically, I want to focus on the idea that the centralized power of the state as such is a reason to extend procedural safeguards to defendants. It seems to me that safeguards are necessary largely to reduce Type I errors where we either mistakenly punish someone or overpunish them compared to comparable offenders. That is, when we are punishing someone, the reason we want procedural safeguards is not to curb the centralized power of the state as such, but because of our desire to make sure that any such power is properly exercised against a particular person or entity.

One way of making this argument is by analogy to the realm of privacy intrusions. Let me explain. To my mind, a person's well-being is impaired when he suffers a setback to his interests, e.g., when the privacy of his (mis)conduct is revealed through either private or public agents. If a private investigator for a plaintiff comes rummaging (with no notice or temporary authorization through my garage,) I am still reasonably upset or resentful. I can imagine I may reasonably be even more upset when the government is the intruder instead of a private investigator for a third party—after all, the government purports to act in my name. But to the extent my choice is to shield something from exposure to public view, the legitimacy of the interest I have in keeping that information private doesn’t hinge -- does it? -- simply on whether the intruder wears the government’s badge.  [Do people have different views about this than I do? If so, why?]

Similarly, in the context of punitive damages designed to advance the public's interest in retributive justice through the use of retributive damages (for now, think of this simply as a fine, the basis of which is instigated through civil suits launched by private parties), we each, ex ante, have an interest in ensuring that the government strikes the right balance between type I and type II errors. Procedural safeguards are the primary way to reduce type I errors, and to some extent type II errors having to do with underpunishment relative to comparable offenders. From the defendant's perspective, he should want procedural safeguards to avoid the mistaken assignation of condemnation and the accompanying hard treatment, regardless of whether the person whose detection of the underlying wrong is the sovereign (public prosecutors) or private plaintiffs. In other words, a person subject to a retributive condemnation has no reason to think fewer safeguards are desirable since in both cases (privately launched or publicly launched suit), the state is making the adjudication involving condemnation and imposing the punishment.

The procedural safeguards, then, are necessary because the state has power to do things that we worry about to people, not simply because the state has power. In the context of retributive damages, the state has the power, through its courts, to enforce deprivations of property or reputation, and thus the concerns that motivate procedural safeguards in the criminal context arise, though to a lesser extent, when retributive damages are at issue. To the extent retributive damages can plausibly be said to be an intermediate sanction on the register of severity of condemnation (whether in the intensity of available punishments or the collateral consequences one might face), it would call for an intermediate level of protection against its wrongful imposition. Thus, actions involving retributive damages should exhibit more concern for Type I error reduction than is warranted in suits involving mere compensatory damages but less concern for Type I error reduction than is warranted in criminal prosecutions of defendants. Precisely how to draw that line is something I'll leave for another day.

Back to the privacy issue. There's not really much gained here by way of the analogy I suppose, but the point I think I'm making here is that just as we want protections against unwarranted intrusions against our privacy so too do we want sufficient protections against unjust imposition of punishments; and it seems to me that the scope of the protections we want does not really turn on who is the source of intrusion so much as the nature of the intrusion itself. Galanter and Luban seem to be making the contrary claim; if that's right, I can't really understand why.

Posted by Administrators on May 28, 2008 at 12:41 AM in Article Spotlight, Dan Markel, Retributive Damages | Permalink | Comments (0) | TrackBack

Tuesday, May 27, 2008

Deed Restrictions

I was in Houston earlier this weekend and through the steamy air (and between BBQ and Bluebell), I saw some signs that made my tired legal eyes pop.  Some Houston neighborhoods have signs with the name of the neighborhood in the median of the major thoroughfares when one enters the neighborhood.  The signs for several neighborhoods also announced "DEED RESTRICTIONS ENFORCED."  Could this mean what I fear it means?!!  What sort of restrictions are being enforced?  No blacks?  No Jews?  No Mexicans?  No Irish?  No Catholics?  Or is this just about maybe, uh, private building restrictions?

I assumed the worst until a Google search brought me to this Houston municipal webpage.  It seems that because Houston does not have any zoning, the city takes an interest in enforcing deed restrictions to effect zoning.  So maybe this is the city's way of announcing that it is doing backdoor zoning.  It's a very weird way of choose-your-own-adventure government, but maybe it fits with the Texas libertarian ethos. 

Still, even if the signs really do refer to zoning issues, I wonder if the signs might still be a problem because of the way anyone not familiar with Houston land use issues would perceive them.  If I were moving to Houston, I would immediately rule out living in any neighborhood with a "Deed Restrictions Enforced" sign because I would think that it was a "restricted" neighborhood where I was not welcome. 

Given the history of deed restrictions to effect racial segregation, Houston municipal signs seem very troubling to me.  The closest analogy I can think of is a Southern diner with two lines roped off, one of which is labeled "Whites Only," to designate it as a line for cholesterol conscious people who want egg whites, not yolks.  But there's no state action there (maybe a government run cafeteria?) 

Why announce public enforcement of private zoning restrictions in an oblique way on neighborhood signs, but only in some neighborhoods?  It'd be really easy for someone to get the wrong message--that is, if it really is the wrong message. 

Posted by Adam Levitin on May 27, 2008 at 11:38 PM in Constitutional thoughts, Property | Permalink | Comments (18) | TrackBack

Magnum Opus

Kent Greenawalt, my teacher and mentor, has just published the second and final volume of his magisterial study, Religion and the Constitution.  Volume One focused on Free Exercise issues; Volume Two focuses on Establishment Clause issues.  It is a characteristically Greenawaltian work: careful, nuanced, rich, attentive to particulars, and generous in spirit.  I hope law review editors are paying attention and getting ready to commission reviews of the two-volume set, which will be one of the standard works in the field for years to come.  Get your copy hot off the presses here, and don't dally about picking up the first volume either.   

Posted by Paul Horwitz on May 27, 2008 at 06:30 PM in Books | Permalink | Comments (0) | TrackBack

Watch What We Do, Not What We Say

In case you missed it, last week the Ninth Circuit reversed a trial court's dismissal of a constitutional challenge to the military's Don't Ask, Don't Tell policy.  The decision, in a case involving an Air Force major's suspension from duty because of her sexual relationship with another woman, is a fascinating read for any number of reasons, but I'll just flag a couple for now. 

The first concerns the Ninth Circuit's approach to resolving the vexing question of what level of scrutiny the Supreme Court now requires -- as a matter of substantive due process -- of government actions that punish same-sex sexual behavior.  Because Justice Kennedy's majority opinion in Lawrence works very hard to avoid identifying the appropriate standard, the Ninth Circuit essentially threw up its hands, declining the parties' invitation "to pick through Lawrence with a fine-tooth comb and to give credence to the particular turns of phrase used by the Supreme Court that best support their claims."   Instead, the panel chose to "analyze Lawrence by considering what the Court actually did, rather than by dissecting isolated pieces of text."  It concluded that the Lawrence Court applied heightened, and not rational-basis, scrutiny -- even though the Court did not tell us that that's what it was doing.  But apparently reluctant to go so far as to apply strict scrutiny absent an explicit go-ahead from the Court, the panel majority borrowed a rigorous-but-not-quite-strict form of heightened scrutiny from the Court's decision in Sell v. United States, which addressed the proposed forcible administration of anti-psychotic drugs to a mentally ill defendant to render that defendant competent for trial.  (Dissenting Judge Canby would have applied strict scrutiny.)

Second, on the equal protection front, the plaintiff's litigation strategy included the argument that the military's policy violates equal protection because it requires the automatic discharge of servicemembers who engage in same-sex sexual behavior on the grounds that such activity may be offensive to some members of military units, while failing to require the mandatory discharge of those engaging in other sorts of behavior -- such as child molestation -- that unit members find objectionable.   The panel majority upheld the trial court's dismissal of the equal protection claim under rational-basis.  But as dissenting Judge Canby -- who would have applied strict scrutiny to the equal protection claim as well -- noted, "it would accomplish too little to establish that persons availing themselves of their constitutional right to intimate homosexual relations should be treated at least as well as child molesters."  This reminded me of last week's terrific colloquy between Heather Gerken and Kenji Yoshino on Balkinization and Convictions that debated whether future gay rights litigation should lead with equal protection or liberty arguments.  While both strategies have their pros and cons, Judge Canby's observation highlights one particular limitation of an equal protection approach in that it simply requires that certain groups be treated equally:  equally well OR equally badly.

Posted by Helen Norton on May 27, 2008 at 03:42 PM | Permalink | Comments (0) | TrackBack

Two-hour v. One-hour Class Blocks

When I attended law school, all the four-hour courses were taught in two separate two-hour blocks.  At UC Davis, we primarily teach four-hour courses in four one-hour classes, although we can request longer classes.  Do any professors have thoughts on whether two two-hour classes are pedagogically different/better than four one-hour classes?  I'd also be interested in hearing from any students out there - do you prefer multiple class hours in a row, or is better to spread it out?

Posted by Carlton Larson on May 27, 2008 at 02:11 PM in Teaching Law | Permalink | Comments (11) | TrackBack

Are law schools like Hawaii?

... Or other island ecosystems where weird species thrive, isolated from predators that would otherwise exterminate them?

The thought occurs to me because I have encountered repeatedly in the law reviews the statement that it is a fallacy to derive an 'ought' sentence from an 'is' sentence -- citing (who else) David Hume. There is a post-Hume literature out there on the relationship between "is" and "ought" statements, and the notion that one can adequately establish that facts and norms are independent of each other by citing Hume's famous passage from the Treatise is almost as odd as the notion that one could establish that the universe is filled with ether by citing Isaac Newton.

But my perplexity vanishes when I realize that I live in an isolated eco-system where the invasive species of modern philosophy has made but modest inroads. So the local fauna can subsist on David Hume, blithely unaffected by contemporary literature (see, e.g., Hilary Putnam) suggesting that the alleged gulf between 'is' and 'ought' statements is nonsense. It is like dwelling on the Big Island before the mongoose arrived, surrounded by fat, happy Nene Geese waddling about, free from the anxiety of the faster, sharper predators dwelling a few hundred yards away across the campus.

Being a fat, happy Nene Goose myself, I am relieved and gratified by this idyllic existence. But surely our days are numbered?

Posted by Rick Hills on May 27, 2008 at 12:40 PM | Permalink | Comments (5) | TrackBack

Employee Primacy at Southwest

Swapa_finalcolor_web3c1_2 On Saturday Joe Nocera had a nice column on the retirement of Herb Kelleher, long-time chief at Southwest Airlines.  The fest came at Southwest's annual meeting, which overflowed with shareholders and employees expressing their admiration for the departing chairman.  The Southwest pilot's union even thanked Kelleher in a USA Today ad.

Given these displays of admiration from employees, particularly in the contentious airline industry, one might expect Kelleher to be a fan of Southwest employees.  In fact, he gives them the credit for the success of the company:

Over the years, whenever reporters would ask him the secret to Southwest’s success, Mr. Kelleher had a stock response. “You have to treat your employees like customers,” he told Fortune in 2001. “When you treat them right, then they will treat your outside customers right. That has been a powerful competitive weapon for us.” As he stepped away from the company this week, his line didn’t change.

“We’ve never had layoffs,” he told me the day before the annual meeting, sitting on the couch of the single messiest executive office I’ve ever seen. “We could have made more money if we furloughed people. But we don’t do that. And we honor them constantly. Our people know that if they are sick, we will take care of them. If there are occasions or grief or joy, we will be there with them. They know that we value them as people, not just cogs in a machine.”

Can that really be the reason Southwest is still making money while its competitors are bleeding red ink? Can it really be that simple?

Of course, it's probably not that simple.  Nocera notes other potential keys to Southwest's success: it got its start by operating out of Love Field in Dallas and operated as a new kind of carrier; it expanded during the great bull markets in the 1980s and 1990s; and it recently made savvy fuel hedges that save the company about 60% off its oil costs.  Undergirding these successes, however, was a constant philosophy of the importance of employees.

Of course, critics of an employee-centric approach will point to United Airlines, which had much less success during a period of actual employee ownership.  The United ESOP has a complicated story, but it must nevertheless be recognized as an instance of failed employee ownership.  But that failure should be contrasted with successes like Southwest.  Although Southwest has never been employee-owned, Nocera notes that during its growth years, "[m]uch of [the Southwest] stock was in the hands of employees, because Mr. Kelleher believed in handing out stock options liberally."

The notion that "employees are important" is one of those Successories-type sayings that seems to have little meaning.  But Southwest shows that the saying can be operationalized into a business approach that provides a competitive advantage.   "Employee primacy" has yet to be developed into a competing theory of corporate law.  But perhaps  Southwest will be a useful example in our efforts to better understand the dynamics and potential of the corporation.

Posted by Matt Bodie on May 27, 2008 at 11:13 AM in Corporate | Permalink | Comments (0) | TrackBack

Monday, May 26, 2008

An Open Letter to ExpressO: Improving Law Review Submissions through Authors' Electronic Commitment to Accept the First Offer

Paul Caron collected some recent blog posts, including mine, discussing law review submission reform.  His Cincinnati colleague Lin Bai offered an interesting solution to the circus of mass submission and expedites: As compromise between the circus and the single-submission system common in other disciplines, authors can submit to as many journals as they like, but should be expected to accept the first offer.  That would make authors more selective about submissions, because if you really want your piece to appear in one of 20 or 30 journals, you can only submit to those journals.  It would also motivate journals to read such pieces, because they would know that they actually had a chance to publish all pieces submitted under this system.   Al Brophy commented on Lin's post that journals are unlikely to agree to such a policy.  But I wonder if it could be done through the action of authors, not journals, via ExpressO.

I assume it would be technically simple to add to the ExpressO submission system an option committing the author to accept the first offer.  This information would be sent with the article and cover letter to the journals.   Journals, in turn, could accept such a piece on line, and all the other journals informed that it was no longer available.  Perhaps the journals would also be told the number of other journals to which a particular paper had been submitted; if five, they would pay more attention than if fifty.

One of ExpressO's advantages is the many journals using its service, so ExpressO would not want to do anything that would drive off law reviews.  But it is hard to see why journals would  object to being told that the authors of particular pieces will accept the first offer.  Journals would not have to prioritize review of such pieces.  They might appreciate not having to waste time reviewing articles they have no chance of getting--as they do now under the current system when a higher ranked journal has made an offer on a piece, and the author has not had the courtesy to withdraw it from venues no longer in play. 

ExpressO might also be disinclined to do it for financial reasons.  It probably loves mass submission to scores of journals the author is using as expedite fodder, because it charges per journal submission.   But if communicating this information were advantageous to the authors, who of course pay the fees, ExpressO might be willing to offer this additional service for an additional flat fee or for a higher per-journal charge.

How would this play out for authors?  Of course, ExpressO is not blind, and therefore while this system is certain to save some work, it would continue to advantage "name" authors.   But elite authors can, and do, play this game with journals now.   If an article comes in on the letterhead of a top school, I'll bet it gets read, and if the letter contains a commitment to accept the first offer, I'll bet it gets taken into account.  If a cover letter from an author from a  low-ranked school says they will take the first offer, I'll bet most journals will  not read the cover letter to learn about the offer.   In addition, the really elite journals are unlikely to put a submission from the legal-research-and-writing person from Wyoming (see fn. 4) at the top of the pile, even at the risk of losing it.  So this system does not eliminate the advantages of elite law profs, or the difficulty of placing articles in elite journals.  But it might increase the chance of getting read at some great journals just outside the very top ones.

The Duke Law Journal did this a few years back.   Authors could submit to Duke and four other journals, and Duke committed to getting back to you quickly, on condition that you accept the first offer.  I don't know why they stopped.  (Please comment if you know).   Perhaps there was some kind of cheating, they accepted papers weaker than those selected through the regular process, or too few authors did it to make it worthwhile.    None of those things suggests that a broad-based, transparent process run through ExpressO is doomed to failure.

Posted by Marc Miller on May 26, 2008 at 07:13 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Why We Fight

As today's Memorial Day, I thought it would be the right time to honor someone who gave her life for democracy almost 60 years ago.  Milada Horakova was a Czech freedom fighter, democratic MP and campaigner for women's rights, who battled against both the Nazis and the Communists.  On June 27th, 1950, she was hanged by the Communists on trumped-up charges of treason and espionage, despite appeals for clemency from world figures including Winston Churchill and Albert Einstein.

A new opera in the Czech Republic shines the spotlight on Horakova's show trial, using her own words decrying the brutalist regimes of facists and dictators:

"I have declared to the State Police that I remain faithful to my convictions, and that the reason I remain faithful to them is because I adhere to the ideas, the opinions and the beliefs of those who are figures of authority to me. And among them are two people who remain the most important figures to me, two people who made an enormous impression on me throughout my life. Those people are Tomáš Garrigue Masaryk and Edvard Beneš. And I want to say something to those who were also inspired by those two men when forming their own convictions and their own ideas. I want to say this: no-one in this country should be made to die for their beliefs. And no-one should go to prison for them."

On this day, especially, we should remember Milada Horakova, along with all the Americans who gave their lives to preserve democracy and our way of life.

(Cross-posted on The Faculty Lounge).

Posted by Laura I Appleman on May 26, 2008 at 03:04 PM | Permalink | Comments (0) | TrackBack

Weekend Trivia Challenge – The Biggest Law School

Prawfs Trivia ChallengeWhich law school has the largest total enrollment of J.D. students, including both part-time and full-time?

Cooley_logoThomas M. Cooley Law School
in Lansing, Grand Rapids, and Auburn Hills, Michigan

Other law schools aren’t even close. In 2006, Cooley had 3,252 J.D. students.1 That was the most recent number I could find. According to Cooley’s current statistics, they have 3,723 total students enrolled, which includes LL.M. students in the Intellectual Property and Taxation programs.2

The list of the top 10 schools in total J.D. enrollment, as of 2006, can be found here.

Bonus question: What school has the most full-time J.D. students (per U.S. News and World Report)?

Highlight this paragraph to see the hidden white text for the answer3: Harvard Law School


Posted by Eric E. Johnson on May 26, 2008 at 02:35 PM in Games | Permalink | Comments (1) | TrackBack

An Academic Manifesto From A "Courageous" Scholar

In response to my self-congratulatory post below, Brian Leiter adds a very thoughtful comment extending our ongoing discussion on the blog about civility, the search for truth, and so on.  It's worth reading.  Since my reply on the comments was running long, and since it's a nice opportunity to talk more broadly about the role and duty of academics, let me put up my reply as a post.

Brian, I appreciate the preface, and value the sincerity of the compliments with which you begin your response, precisely because of the critical comments that follow in their wake.  I don't think you throw around compliments where you don't think they belong -- it would, indeed, be antithetical to the argument you advance -- so when I get one from you I appreciate it.
Let me say that I suspect we agree about far more than we disagree about here.  I agree that civility can come at the cost of sincere and forceful argument about things that matter.  I think getting to the heart of a disagreement is at the heart of useful discussion, and said so recently in a little dialogue with Orin on this site.  To do so requires speaking clearly and sometimes bluntly.  Although I tend to have relatively few strongly held views, and given my particular and somewhat peculiar (but not unknown; see, e.g., Sandy Levinson) role as someone who is deeply interested in law and religion and sympathetic to religious individuals and communities but who doesn't himself come from a religious perspective, I am often cast in the role of a proceduralist or mediator who wants to explore common ground.  But we cannot usefully do that by ignoring or pretending away bedrock disagreements.  Rather, the better we can identify those disagreements the better we can both reach common ground on some shared premises while starkly revealing the places where agreement is impossible.  Given this approach and my own priors, I often am a kind of "on-the-one-hand, on-the-other," walk-a-mile-in-the-other's-shoes type of writer.  But that is my nature and I don't think it's the only way to go.  To the contrary, precisely because it is my nature I respect and admire those people who have and argue strong "convictions" and "arguments."  By calling them that, I don't mean to belittle them or to say they are not true; you would not make them if you didn't think they were true, and you support them by arguments.  I am just saying generally that I agree that the truth is the truth and that it is important to argue for it and not let civility stand in the way of doing so; precisely because I tend to make few truth-claims, I value those who do and often find arguments with them productive and valuable.  I wish more people were willing to state their views bluntly and boldly, although also while meeting minimal criteria for sound argument.

All of this is tied to our common sense of the underlying importance of meaningful discussion, rather than blather, in the academy.  Civility can be a form of blather, although it's important to note that it isn't necessarily so in every case.  And a willingness to either back away from arguments, or to ignore what one thinks is simply the truth or simply a bad argument and not label either of them as such, or to flatter where flattery isn't called for, can indeed detract from serious argument.  You know I strongly believe -- and have thought about it more and more as I become interested in the law of academic freedom, and for that matter as I approach my own tenure determination -- that academics have taken on a role that they must honor, that they must be steadfast in arguing what they believe to be true, in backing up those arguments, and in sweeping away poor argument. 

You are forgiving about, without necessarily excusing, some of the reasons why people sometimes fall short of that standard.  I have publicly been less forgiving.  I see evidence all too often that there are junior faculty members out there whose pre-tenure activities are geared toward avoiding controversy, not saying what they believe to be true, and otherwise calculating their moves, whether as scholars or members of the university community, with tenure in mind.  Don't offend so-and-so; do flatter so-and-so; make sure you cite your own faculty; don't write on controversial topics; at one time, if not still, don't write about race if you are a member of a racial minority, and so on; and perhaps in some cases, if you write from a religious perspective, try not to show it: all of these are the kinds of advice that people regularly receive pre-tenure. 

I understand why and how it happens.  I might add that in my view one of the biggest influences on such behavior is often the pernicious influence of senior faculty members who ought to be inculcating better values in their junior colleagues but instead are counseling them to do what they need to do to win tenure.  By no means is this universal among either junior or senior colleagues, but it is too common for comfort.  If the core academic value is the search for truth without concern for fear or favor, then strategizing in this way is poor training for a sound future as an academic.  There are good reasons to be humble and careful as a junior faculty member, whether as scholar or colleague; one doesn't know everything yet, and one should therefore make one's claims carefully and humbly.  But that is about recognizing your limitations, not acting strategically with tenure in mind.  I had thought that tenure should be a reward for those people who have demonstrated not only that they meet the criteria for tenure, but who also have demonstrated that they will write whatever they need to write, and make whatever arguments they believe are best, without regard for consequences and even in the absence of tenure.  Thus I have written, keeping in mind always that one must meet the standards of one's field, that it is the folks who act as if tenure were irrelevant who most deserve tenure, and conversely that the folks who lack courage before tenure give us no special reason that they will use their tenure in any meaningful way once they get it; to the contrary, those are the people who, onec they become senior, may well internalize those strategic decisions, demand flattery and silence from juniors, and otherwise contribute to poor values in the academy. 

[Totally parenthetically, when I was at the new law profs conference a few years back, someone put up his hand and said, doubtless without sufficient backing data, that the faculty he was joining was full of reactionary fools, and he wanted to know how he could fight the power structure there -- without endangering his tenure chances.  Profiles in courage indeed!  I have long hoped to get a chance to speak at one of the new law prof conferences precisely because I want to share this anecdote, against which much of my own career so far has been a horrified reaction.]

So I think we agree about much.  There should be "less anxiety about civility, and more anxiety about truth, sensible argument, and intellectual integrity."  We must value truth first and foremost.  We must, within disciplinary standards, have the presence of mind and force of will to say what is right and what is wrong, what is good argument and what is bad argument.  Civility should not serve as a brake on our doing so, or it becomes something other than civility; it becomes servility.  "Here I stand, I can do no other," or "Still it moves," should be the watchwords of the academic, not "It's a beautiful day in the neighborhood."

None of this is to say that one can't be blunt and fierce in defense of the truth and civil.  Sometimes those two may be in tension, but more often, I think, they are not, and sometimes one can actually serve the other.  There is a difference between annihilating an argument, step by step and sentence by sentence, until nothing remains of the opposing argument, and disparaging a person.  There is a difference between saying, as I recently did of Phyllis Schlafly's JLPP piece, that not one sentence of it is either honest or valuable, which I think is true and eminently supported by the article itself, and saying she is an idiot.  I am not terribly interested in whether she is an idiot, I fear making such judgments lightly in a fallen world of which I am one more fallen remnant, and in any event even a stopped clock can be right twice a day; I am interested in whether her argument is wrong.  Because there is room for common ground in argument, as well as productive disagreement on fundamentals, I try to avoid incivility because I think it ultimately detracts from the useful truth-searching discussion one could have in such circumstances rather than engaging in simple fireworks.  Finally, there is another reason I value civility: the Learned Hand-ian spirit of liberty in which I am not always sure I am right, which leads me to want to make modest claims carefully and in a spirit of charity towards others.  That does not mean disclaiming those convictions that I do hold as bedrock truths, or ignoring what I think to be simply wrong or worse; even when you remind yourself that you could be wrong, you must still speak out on those issues about which you think you are right.  But it does mean I try to enter the fray from something of a spirit of humility.

These remarks aren't targeted at you or your writings in general; they are simply a response to what you have said in the comment I am responding to here.  I'm not accusing you of incivility in any particular case; not for fear of offending, I hope, but because I don't want to get side-tracked.  I'm saying that I think it is possible to be civil and still be blunt about the truth and about identifying good and bad arguments.  I also think that this is more often than not both an instrumentally valuable approach, in that it can lead to further discussion of a useful nature rather than shutting off what could be a productive discussion too early, and also an intrinsically good form of argument for academics, even for those of us who agree finally that the most important thing is the search for truth, not making nice with each other or engaging in meaningless flattery.  I don't know that you disagree with me about any of this.  I think we might disagree on what constitutes civility or incivility, or on what constitutes "productive" and "unproductive" incivility.  That's fine with me.  I still think we agree on much more than we disagree about here, at least in principle.

One last word by way of personal privilege.  Being Canadian, I am just a little dry in my sense of humor.  In reprinting Dan's remark I didn't mean to suggest that I am actually the god-king the description evoked.  (I'm not saying I'm not; I decline to say whether I think I am or not.)  Like the second half of the title of this very post, it was primarily by way of gently poking fun of myself.  I'm not really the kind of guy who would seriously draw attention to his own glowing press notices.  Although, fallen creature that I am, I am susceptible to flattery, I try not to take it that seriously, and if I did it would far more likely have to do with my great physical attractiveness, and the fact that I possess the power to read men's minds, than with my academic acumen.  I had thought that was clear from the post, but I'll certainly reiterate it here.

I was serious about the tattoo, though.               

Posted by Paul Horwitz on May 26, 2008 at 11:14 AM in Life of Law Schools, Paul Horwitz, Teaching Law | Permalink | Comments (4) | TrackBack

Saturday, May 24, 2008

Is Obama Good for the Jews?

As Official Guest Jew (and understudy for the PrawfsBlawg Hofjude), let me take Dan's bait and opine on whether Obama is good for the Jews.  Comments will be closed for this post for obvious reasons. 

                The split American Floridian Jews on Obama reflects a larger generational divide among American Jews over where Israel falls within their political thought. For older American Jews (and I’m not sure where the cut-off lies), Israel is a leading question in American national electoral politics. For many younger American Jews, Israel is simply not that important. There’s a lot that could be said on why this generational difference exists. It is hard to discuss this in anything other than generalities, so I want to make clear that there are plenty of exceptions, e.g., religious Jews and the surprisingly large demographic of Israeli-Americans.

                Overall, I think the divide relates to American Jews’ changing sense of security and belonging in America and how Israel is refracted through that shifting lens. I say this as a positive statement of how things are, rather than as a judgment on them.  The more comfortable American Jews feel in America, the more uncomfortable they are, if not with Israeli policies, than with Israel’s international image. Younger American Jews have no experience of antisemitism. They don’t know Henry Ford and Father Coughlin or deed restrictions or university quotas or neo-Nazis marching on Skokie or the antisemitism of the militant left.  At most they’ve seen some snippets of black antisemitism from Farrakhan and Leonard Jeffries and co. and heard rumors that the Porcellian, Bones, and Ivy will only take a few token deracinated Yidlekh. Maybe they remember James Baker saying “Fuck the Jews." But these aren’t attacks experienced first hand. Instead, they are experienced through the media.

                To see the change, consider this: fifty years ago white shoe law firms would scarcely look at Jews for associates, much less partners (maybe for real estate departments), and they wouldn’t touch “Jewish” practices like bankruptcy. Now the managing partner of Cravath, the whitest of the white shoes, is a Jew. That’s all a good thing, but it makes Israel and Zionism much less salient concerns for many younger American Jews—their identity is not being defined for them by their Jewishness, so they are not as concerned about Jewish pride symbols or the necessity of a Jewish state in which they could ultimately take refuge.  This is why the older, established Jewish community is desperate to increase young American Jews' engagement with Israel--witness programs like Project Birthright, which tries to foster a connection by sending young American Jews on a short guided vacation of Israel.

So what does all of this mean about Barack Obama? Or put another way, is Obama good for the Jews? 

                It is a pretty pointless question to ask, if Israel policy is the metric of "good for the Jews," meaning good for the Jews qua Jews.  American Middle East policy will remain fundamentally the same regardless of who is in the White house (I am hardly alone in claiming this--I believe either/both Marty Peretz and Leon Wieselthier, lehavdil, argued this fairly recently in the New Republic, but couldn't find a link). A two-state solution and a negotiated land-for-peace deal are core American policies that transcend administrations. There might be some variation in style and on the margins, but the essential position is fixed. (For that matter, changes in Israeli administration are not particularly meaningful on the Arab-Israel question. Whether Labor, Kadima, or Likud is leading the government, Israeli policy still operates within the same parameters.)

Voting for any of [Obama, McCain, Clinton] on the basis of Israel policy makes little sense to me, as I don’t think there is any fundamental difference in their policies—the differences among them are not about the sort of details that get worked out by the President, but by career State Department officials.  At most there are stylistic differences not substantive ones. To my mind the differences among them are akin to those between the Clinton and Obama healthcare plans--details that get worked out in Congressional conference committee. 

                Of course, this is, arguably the very problem with US Middle East policy—an unceasing commitment from successive administrations to trying the same old unsuccessful methods in the hope that they will somehow produce different results. The treaties between Egypt and Jordan and Israel are seen as the models, rather than as each reflecting sui generis conditions. 

                Still, as someone who teaches secured credit, I know quite well that style (or form) can be substance.  But the truth is no amount of American coaxing, wheedling, cajoling, or bullying will matter unless both Israel and its Arab neighbors are really looking to work out a deal.  Other than at the very margins, the US cannot change the sides' willingness to pay/accept and their evaluation of the alternatives to a deal. If they do not both want to cut a deal, then the signals sent out by the US administration are meaningless other than as an excuse or a club with which to blame the other side.

              Unfortunately, most American Jews do not hold such an apathetic view of US Middle East policy. Some are apathetic about the issue in general, but for those who care, every little variation is treated as if it were of fundamental significance. The forest gets lost for the trees. I don’t think there is anything that can be done about this.  There are reasons to be concerned about how all of the candidates would perform overall as president and, perhaps more importantly, who they would appoint to handle the details.  But none of this is really about good/bad for the Jews qua Jews.  It's about larger questions about the direction of American society.  The issues up for debate in this election simply don't include Israel.

              In a world where everything is good for the Jews or bad for the Jews, it is hard to admit that some things don't really matter a lot for the Jews.  It would make all the tsedreyte alte kakers in Boca feel too unimportant.   

Posted by Adam Levitin on May 24, 2008 at 01:00 AM | Permalink | Comments (0) | TrackBack

Friday, May 23, 2008

If You Say So....

I won't weigh in on the continuing debate in the comments to another post here on whether it is possible to be blunt and unyielding in defense of what one considers the truth, or at least sound argument, and against falsity and unsound argument, without being uncivil, and on where the line between civil and uncivil discourse lies in academic debate.  I just want to concede, albeit reluctantly and modestly, a point that Dan Markel makes in a comment.  It is true: I am "courageous, pointed and yet overwhelmingly polite."  (He also says the same thing about Rick Garnett, but whatever.  Enough about him.) 

In fact, I like the observation so much that I would have it tattooed across my chest, if Jewish law did not forbid it.  It certainly has immediately entered my continually updated short-list of potential epitaphs for my tombstone, where it is now #3 with a bullet.  I will also pass the news along to my wife, who will be surprised and gratified to hear it.

Incidentally, if you replace the phrase "overwhelmingly polite" with "Canadian," it still works.     

Posted by Paul Horwitz on May 23, 2008 at 05:17 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Electioneering in the Wild West

So Tuesday was an exciting day for

Oregon—the MSM actually focused their flickering and fickle attentions on our Democratic primary. Obama’s win was a surprise to no one—but here are some more subtle points that were lost in the general coverage:

  1. It’s pronounced Or-i-GUN, not Or-e-gone.* There’s nothing that marks you as a sissified Easterner more than mispronouncing the state name. I’m talking to you, Chris Matthews! 
  1. How cool is it that our new Attorney General is a lawprof?! Congratulations to Lewis and Clark’s John Kroger, who won despite televised smear ads muttering about his very recent     admission to the Oregon bar.
  1. All of Oregon’s ballots are mail-ins; there are no voting booths or polling places. This may be the way of the future, but it does take a little of the fun away. I miss that satisfying clunk of the lever in old-fashioned voting booths. On the other hand, you don’t have to worry about rain depressing turnout, a real issue in the Pacific Northwest. 
  1. This being Oregon, where quirkiness is prized, there are still serious pockets of Ron Paul     supporters. For some reason they feel the best way to support their candidate is to march up and down themain thoroughfare, waving signs and ringing bells. Perhaps they’re trying to collect gold? I wouldn’t be surprised if Ron Paul got a few percentage points in November through a write-in campaign.
  1. Finally, it’s only appropriate that Portland, home to a substantial microbrewing culture, has just elected none other than Sam Adams as its new mayor. As a new Portland resident, I’ll drink to that!

*nb:  Another oft-mispronounced word, Willamette (as in the Valley, the wine, and the law school) rhymes with “dammit.” We’re thinking of making it part of our official motto….

(cross posted at The Faculty Lounge)

Posted by Laura I Appleman on May 23, 2008 at 02:41 PM | Permalink | Comments (0) | TrackBack

Professor Johnson Responds to the Flames

070829n4965f012__0xanx1I write this post for two reasons. First, I derive enormous satisfaction from referring to myself in the third-person as “Professor.”

But second, and more importantly, my guest stint here on PrawfsBlawg has garnered me an intense amount of flaming from the PrawfsBlawg readership. I feel I must respond.

My most controversial post yet, clearly, was America is the Best Place to be a Law Professor.

One might have thought the label "thesis of the day" at the beginning of the post conveyed my personal level of subscription to the opinions expressed therein. Moreover, one might have thought the image of an American flag literally waiving over the post warned of some tongue-in-cheek narrative ahead (clothing what, I thought, was an interesting question to ponder about how jurisdiction affects our scholarly lives).

In that post, I made the following comment about judge-made law in the United States: “Meritocracy triumphs.” My declaration made some uncomfortable.

“That is a hilarious line, I hope intentionally so.” one person commented.

Hmmm. Well, I was told by one close confident of mine1 that this statement was “such transparent absurdity, no warning label need be affixed.”2 Nonetheless, I’m going to stand by my statement. Get into the law library and read for yourself. Over four million cases. Another 200,000 every year. Not one wrong yet.

K102781_sI think it is important for me to point out that many of the negative comments to this post were made by people who are, quite obviously, foreign. Let me just say that I did not intend to offend our overseas colleagues. To be quite candid, I was not even aware that our internets worked in other countries. I know better now. But if someone can tell me how to post to the America-only internet, I have do have some additional things to say …

Let me put it this way: If PrawfsBlawg readers don’t learn how to take my dry sense of humor, then I will never tell you about my plan to amend the constitution to throw out all case law so that we can start the 2010s precedent-free. And that goes double for my support of making territorial expansion America’s number one priority in the years ahead. (Hint: I think we can take Greenland. Based on what I’ve seen on the Discovery Channel, it’s very poorly defended.)

So let's move on to just one other of my many trouble-stirring entries. My Weekend Trivia Challenge asked readers which law-review article was the most cited in history, at least according to a 1996 study, which was the most recent I could find.

A reader, identifying him or herself only as “Captain Obvious,” flamed me thusly:

Why did you just publish 12-year old news? Wh[y] not update the article? Then you'd have something original and relevant.

Here's my reply:

It was a trivia question. Not a news item.

Yours truly,

Admiral Obvious

Before I go, let me just note one more thing. I googled it, and I am apparently the first person to string together the three-word phrase “flamed me thusly.”

Go me.

That’s so awesome, I think I’ll use it as my new WEP encryption key. So any PrawfsBlawg readers who want to park themselves outside my house and use my wireless to download terabytes worth of copyrighted songs without getting an RIAA subpoena at their front door, have at it.

1 Me.

2 I like how my friend, instead of saying “is necessary,” says “need be affixed.” It sounds so centuries-ago, wig-on-head lawyerly. I really need to work on adding more of that into my speech.

Posted by Eric E. Johnson on May 23, 2008 at 11:50 AM in Blogging | Permalink | Comments (2) | TrackBack

"People of color" as pernicious phrase

At the risk of being gratuitously provocative, it occurs to me that the phrase "people of color" might be pernicious and misleading. Given that the suggestion will probably inspire ire among some readers, I make it tentatively. (Contrary to some academics, I regard pugilistic exchange at workshops and on blogs not as a sign of intellectual toughness but only as a symptom of over-compensating machismo. Real philosophers -- Socrates, for instance -- never play the tough guy with their opponents: they leave the eristic stuff for sophists like Thrasymachus).

So take what follows in the spirit intended -- as an effort to speculate rather than pick a fight.

Here's the news event that inspires my worry: Recent reports of South Africans' lynching, raping, and mudering foreigners -- mostly Zimbabweans but also Mozambicans and others -- in Johannesburg and Cape Town. There is nothing surprising about xenophobia when unemployment and crime are both high, as they are in South Africa. But, combined with Mbeki's bizarre refusal to condemn Mugabe's incipient theft of an election in Zimbabwe, this outbreak of violence suggests to me that the concept of "people of color" is a concept used by elites to create a racialized elite unity that has very little purchase among the laity. Mbeki's loyalty to Mugabe is based, it is often said, on the desire to maintain unity among former freedom fighters (and perhaps reenforce Mbeki's own claims to govern as a veteran of a liberation struggle). But this desire has not inspired any real sense of trans-African unity: It has become instead merely a talking point to keep a corrupt leader in power.

Generalizing from this observation, it occurs to me that "people of color" is what Vonnegut called a "granfalloon" -- a category that is intended to, but in reality does not, inspire real unity among the people to whom it applies. (Vonnegut uses the example of "Hoosier" to illustrate his term). Elites use the term -- in defiance of reality among non-elites -- to create a sense of racialized unity against a common enemy, in the manner of Carl Schmitt's "concept of the political." (There can be no "people of color" without some "colorless people": "Tell me who your enemy is, and I will tell you who you are," as Schmitt would say).

The problem with a concept of racialized unity is that, among non-elites, the concept tends to fracture on more parochial lines. Just as there is no trans-African unity among ordinary Zimbabweans and South Africans, despite Mbeki's rhetoric about a common anti-Imperialist struggle, there also is no political unity among ordinary African-Americans, ordinary Mexican-Americans, ordinary Korean-Americans, etc., despite elite rhetoric about a racial coalition composed of "people of color." Instead, these groups often have racialized unities of their own, defined by mutual hostility towards each other (most famously, perhaps, in the strife between Korean shopkeepers and their mostly Black customers in Los Angeles).

Hannah Arendt once denounced the notion of the "Third World" as an empty concept. She was roundly criticized -- but, as usual, turned out to be correct. I think that the concept of "people of color" is equally empty -- and, to the extent that it encourages race thinking among the laity, much more pernicious. Purchasing cheap camaraderie with the notion of racialized unity might be playing with fire: It may be that, having encouraged "people of color" to think of themselves as a political group against "the colorless," it is hard to put on the brakes when sub-grouping of POC -- Blacks, Mexican-Americans, etc -- define themselves as political entities against their putative allies.

Whether there is such a trickle-down effect from elite racialized rhetoric to lay belief, I do not know. But such an effect seems non-trivially possible and, if present, unequivocally harmful. Hence, my worry about POC talk.

Posted by Rick Hills on May 23, 2008 at 10:06 AM | Permalink | Comments (5) | TrackBack

"Extremist" as weasel word

I'd like to invite you all to join my so-far unsuccessful campaign against the use of the term "extremist," when used as a term of opprobrium. The term, so used, is the epitome of a "weasel word" -- a word that allows its users to conceal their need to define their moral terms and thereby (like the lithe little predator that gives its name to the phrase) slip past their opponents' defenses.

The problem with the term is that it subtly substitutes intensity for direction, inviting the audience to believe that the moral failing of the "extremist" is in the intensity with which he or she holds a belief and not the belief itself. Take the all-too common phrase (it got 126,000 results on a Google search), "Muslim extremist." The phrase as used makes it seem as if the problem with someone who commits violent acts in the name of Islam is that their beliefs or actions are simply taken "to extremes" -- as if a moderate amount of violence, religious intolerance, anti-semitism, censorship, or oppression of women would be acceptable. But moderation in vice is still vice: Someone who (for instance) violates others' rights to physical safety does not become acceptable because he or she does so with moderation -- say, by tripping them in dark alleys or tying their shoelaces together rather than setting off car bombs. Likewise, extremism in virtue does not thereby become less virtuous: No one disapproved of Mother Teresa or Albert Schweitzer because they took altruism to extremes.

Why the prevalence of the term when it manifestly is so inadequate for the purposes with which it is used? Here's a hypothesis: It allows the user to avoid having to take a moral position on the substantive merits of an issue, substituting instead a bland call for moderation. In this respect, "extremist" is the cousin of equally obnoxious adjective, "progressive" -- a term that also uses an empty spatial metaphor to avoid definition of aims. To say that one is "progressive" or pursues "progress" is to say exactly nothing while appearing to take a stand. (Towards what are you trying to progress? A disease can be "progressive": Absent a definition and justification of goals, pursuit of "progress" -- that is, forward motion -- is not pursuit of any definite goal whatsoever).

Likewise, attacking a person or movement because they are "outside the mainstream" or "extremist" is a weaselly evasion of the duty to take a stand. Explain why "the mainstream" is beneficial or the poles on the spectrum are undesirable.

In sum, I exhort you all to join me in ferreting out these insufferable weasel words. When it comes to linguistic precision (or animal metaphors, for that matter), there is nothing wrong with going to extremes.

Posted by Rick Hills on May 23, 2008 at 08:03 AM | Permalink | Comments (8) | TrackBack

Obama, the Jews of Florida, and this Jew in Florida

Apropos the increased chatter that Hillary may serve as BHO's veep and my friend Jodi Kantor's piece in today's Times on Obama's quest to calm the rattled nerves of Florida's Jewish Democratic population, I thought I'd register the following conundrum of ambivalence, which I wonder if others share, regardless of their demographic.  Jodi, who was a 1L at HLS for a semester back in the day, and who had the same fellowship in Israel the year after me, finds anecdotal evidence to support the view that many of Florida's alter kockers are skittish about Obama's worldview (and in particular Israel's place in it), while the younger generation of Jewish Floridians is enthusiastically behind him.* 

Anyway, if these anecdotes dug up by Jodi are indicative of real trends, I guess I've hit middle age at 35 and thus live in some kind of liminal time-space warp here in Florida.  On the one hand, I'm relentlessly inspired by Obama (and many of his supporters) and the exuberant and potentially transformative times his presidency may augur, both in the US and abroad. On the other hand, I am more than a bit anxious about various things.  Put aside the character judgment non-issue with Pastor Wright, or whether he's got passion for a secure Israel in his kishkes and that this promises to be a Philip Roth-refracted presidency. Consider instead: is someone with his relatively thin experience in an executive position, his "softish" view of foreign affairs generally, and his failure to show unflinching leadership on embracing universal health care, gay marriage, and robust free trade, the right choice for the challenges ahead?

The Dems among you can put aside any fears of actual influence since I remain a disenfranchised Canadian here. Still, I harbor these reservations. And despite these reservations, I look at the other candidates: Clinton and McCain, to my mind, give me some kind of inchoate reason to prefer their patently more hawkish worldviews on foreign policy and national security, but they otherwise have their equal or deeper flaws.  Neither of them for example has embraced gay marriage qua gay marriage. Neither has real executive experience. (And to the extent Hillary wants credit for proximity to the glory of the Clinton years, she must take some of the blame associated with its foreign policy blunders too.) Meanwhile McCain looks like a simpleton on economics.  If these were the choices only a few years ago, Obama would be a truly easy choice. But as the Democratic primary season winds down now, in a time of peril upon peril, I anticipate wanting to give, against the euphoric tides, only two and a half cheers for Barack Obama as he ascends the podium in Denver in late August, and God willing, a different podium, in DC, in January.

*I leave aside for now the question of whether the article was "good for the Jews." Maybe Adam Levitin will chime in with his thoughts. In the meantime, Happy Lag Ba'Omer.

Posted by Administrators on May 23, 2008 at 12:00 AM in Current Affairs | Permalink | Comments (8) | TrackBack

Thursday, May 22, 2008

Tolerating Intolerance at Civic Events

Brian Leiter has recently become quite over-wrought over my skepticism concerning protests against Washington University’s decision awarding an honorary degree to Phyllis Schlafly. The issue seems not to require quite the indignant tirade to which he treats us – but I confess to being easy-going to a fault about politics. In any case, the spat seems to be a dead horse.

But the Leiter-Hills spat suggests a larger and much more interesting question to which I now turn. To what extent is it boorish to protest intolerance at ordinary civic events? To what extent is it a civic duty to do so?

In any society, there are some issues about which we can agree to disagree. On these issues, we hold our tongues and smile for the cameras at ceremonies celebrating civic unity and institutional loyalty – for instance, graduation ceremonies – even though we might dislike the views of people who receive civic honors or think that they do not deserve the attention. There are other issues, however, that justify our disrupting even apolitical civic events with politicizing protests (for instance, turning one’s back on a degree recipient), even though such conduct is ordinarily unseemly.

Just to clarify this basic distinction (and incidentally advertise a certain filial pride), take the following case. Carla Hills, my mother, is receiving an honorary law degree from Yale University on Monday (She received the real version back in ’58). She is being awarded this degree for her accomplishments as a cabinet officer in two Republican administrations. One of those accomplishments was negotiating the NAFTA treaty – a treaty that many now denounce. They are surely entitled to their opinion about NAFTA, and my mother surely has no legal entitlement to an honorary degree. But if anti-NAFTA protestors were to turn their back on my mother as she received her degree because they disapproved of NAFTA, I would (I think rightly) brand such protestors as immature and intolerant boors. And it would be preposterous for them to respond that their demonstration did not exhibit intolerance on the ground that no one has any right to an honorary degree. Everyone is entitled to civil behavior during public ceremonies absent a good reason for a protest. Contrary to Leiter, it is intolerant to politicize civic occasions without good cause, even if one believes that the honoree does not deserve the honor.

But why exactly is there not any good cause to protest against Carla Hills’ receiving an honorary law degree from Yale, even if one sincerely believes that NAFTA was a travesty? Because NAFTA is surely an issue the merits of which there can be reasonable disagreement. Politicizing apolitical ceremonial occasions because one has strong beliefs about matters of reasonable disagreement is simply a faux pas, a gauche and puerile act of misplaced indignation. Save it for the Saturday morning talk shows, the Senate floor, the campaign trail, etc. Not for a graduation ceremony.

But what if the honoree is a genuine bigot – that is, someone who has offended a basic norm of equality about which there can be no reasonable disagreement? David Duke or Mahmoud Ahmadinejad (for instance) would strike me as such a person. Honoring such a one would justify a protest, because the university’s decision to honor such a person would itself be a disruption of an ordinary civic occasion by placing some imprimatur on intolerable – not merely incorrect or even silly – beliefs.

Here’s the rub: Not every form of intolerance can justify the politicization of civic events celebrating unity. After all, politics largely consists of different forms of intolerance. Greenpeace is rude about the officers of many for-profit corporations. The Hemlock Society is scornful about those who oppose physician-assisted suicide. Students for Justice in Palestine (SJP) have nasty things to say about many Zionists, who return the compliment. PETA loathes scientists who test drugs on animals; scientists often brand PETA as a bunch of Luddite loonies. Fundamentalist Christians say intolerant things about people who engage in premarital sex; secular types like Christopher Hitchens say nasty things in return about Fundamentalist Christians; and the Pope has been known to say intolerant things about gay and lesbian sexuality.

If there is to be a protest at civic events every time a person is honored who has said intolerant things about his or her political enemies, then the notion of agreeing to disagree will disintegrate. So I ask again: Do we have a good theory about which forms of intolerance are tolerable and which, intolerable bigotry?

I think that the question is especially difficult when social mores are shifting, such that an older generation might adhere to norms now viewed by youngsters like myself as outside the pale. (Recall that the widely admired Justice Harlan listed homosexuality as obviously a form of immoral conduct that states were entitled to ban in his poe v Ullman dissent). Do we give grandfathers’ now-obsolete prejudices the benefit of a social “grandfathers’ clause”? Or are we to protest indignantly every time a university honors an aging Goldwater Conservative, simply because the beliefs of such conservatives (e.g, opposition to the ’64 Civil Rights Act, extreme paranoia about communists in our midst, etc) now strike many today as outside the pale?

Posted by Rick Hills on May 22, 2008 at 08:48 PM in Current Affairs | Permalink | Comments (32) | TrackBack

What was Dale DuTremble thinking?

I recently received a copy of a letter from a prosecutor -- Dale L. DuTremble, the City Prosecutor for North Charleston, South Carolina -- addressed to the victim of an alleged crime. The allegations involved an assault, and DuTremble sent the letter to both of the women involved, explaining why he would not prosecute the case.

Some of his reasons are pretty straightforward and we see these all the time:  "there are no independent witnesses to this alleged assault" and "there are no reported injuries." But then the letter takes a bizarre -- I would even say petty and abusive -- turn. 

I also have learned that neither of you have a green card and are in this country illegally. I further have been advised that it will cost the City of North Charleston a great deal of money to hire an interpreter whose qualifications meet the requirements of both sides in this dispute. I have no intention of asking the City of North Charleston to spend any money at all for two grown women who, despite being in this country illegally, cannot observe the basic courtesy expected of both citizens and guests of this country. This includes the courtesy of obeying the law. I have decided to refer both of your names to ICE; more specifically, to the office of Detention and Removal, in Atlanta, Georgia, with a request that they begin deportation proceedings immediately. Once deported to your country, you will be free to fight with each other on a daily basis, and since you both speak Spanish, you will be right at home in the court system of your native land.

A copy of the letter appears at this link: Download sc_prosecutor_letter_immigration_2008.pdf . I have to wonder if language this insulting and inappropriate from a public official is genuine. I have no reason to believe the document is a hoax, but I suppose that is possible.

Assuming this is an authentic document, however, I'm part scandalized and part curious. I will not rehearse for you all the familiar arguments about the value of strong and cooperative relationships between a community and the police and prosecutors that serve them, and how that might apply in communities with large Latino populations, where a number of residents arrived in the country illegally. My curiosity focuses on this question: What did the prosecutor believe he was accomplishing by sending this letter? Was this letter just the result of a barroom dare among attorneys socializing after work? Did he anticipate that a copy of the letter would circulate to create predictable effects in the community, or did he say it just to make himself feel better?  How often does he write insulting letters to the victims of alleged crimes?

It's enough to drive a law professor to write about prosecutorial accountability.

Posted by Ronald Wright on May 22, 2008 at 05:50 PM in Criminal Law | Permalink | Comments (4) | TrackBack

Bloggers' Happy Hour at LSA, Montreal

Once again, Prawfs & Concurring Opinions bloggers are joining forces for the good cause of conference bar drinks. The venue is the Hilton's indoor bar (I believe it is Le Belvédère) Friday at 9:30.

Feel free to announce this on other blogs and please make sure to introduce yourselves, I am terrible with names and faces in large conferences... A Bientot.

Posted by Orly Lobel on May 22, 2008 at 05:49 PM | Permalink | Comments (0) | TrackBack

OK, OK -- More on Schlafly

The posts below by Howard and  Rick both add interesting observations to the discussion about l'affaire Schlafly.  Let me add a couple of observations of my own. 

1) Rick hastens to assume that the objection to Schlafly is based on the view that her opinions are beyond the pale.  Maybe so; I conclude below that there is some evidence to support this.  But note Howard's addition to the conversation in the comments section of his post, which suggests that at least some of the objections stemmed from the view, not that Schlafly's politics are wrong, but that she is a demagogue and an anti-intellectual, and that she is careless in her public arguments.  That seems to me a sound reason to object to a university's choice of speaker.

2) Some of the commenters to Howard's post do make substantive rather than qualitative judgments about Schlafly, and argue that universities do stand positively for particular values, including cosmopolitanism and non-discrimination.  I would rather say that some universities stand for particular values; that in some cases those values are clearly and strongly substantive in nature; that those values may include non-discrimination and cosmopolitanism and like values, but that they may also include more particular viewpoints, including religious viewpoints -- say, being anti-abortion; that many universities at least purport not to stand for particular substantive values other than that of truth-seeking, and rest rather on a largely proceduralist sense of academic values, although that procedural view can certainly fold in, or be made to fold in, a number of substantive values, such as non-discrimination, on the grounds that they conduce to truth-seeking; and that, in a diverse and pluralistic society, and at least provided that some minimal criteria for what constitutes a "university" are met, there is a good deal of room for a diversity of approaches to the academic mission.  That means that if Wash U, or some other school, wants to say that its substantive values as a university preclude -- or, conversely, demand -- inviting Schlafly as a guest, it is free to do so.  I don't think Wash U itself does take either of those positions, although some of its faculty clearly want it to adopt the former view.

3) There is a cost associated, however, with taking a particular view of one's institution's academic mission, and that is the cost of living consistently with that mission.  So if a university opposes (or supports) Schlafly on substantive grounds and believes that universities ought to take particular substantive views (whether liberal or conservative, secular or religious, and so on), then it must try to live by those values, think through their implications, accept criticism when it fails to do so, accept criticism precisely because it is living by its perceived values, and so on.  Similarly, if one takes a purely proceduralist view of the university mission, one must live by that model too.

I doubt that everyone involved in the Wash U controversy has thought through these issues especially clearly or thoroughly, although surely some have.  My own suspicion is that while some of the faculty there do take a thorough-going view that Schlafly violates the "substantive" values of the university, many would adopt a broader view of the university as a neutral truth-seeking organization, in which case it becomes harder to justify excluding Schlafly.

But it is consistent to believe that universities should not generally honor hacks and lousy thinkers and writers by inviting them to deliver a keynote address on a special occasion.  And I think there is at least a reasonable basis for concluding that Schlafly fits that bill.  Those in doubt may consult Schlafly's recent piece, "The Morality of First Amendment Jurisprudence," which is available here and was published in the JLPP.  I remember wanting to blog about it when it first came out because every sentence was so sententious, every argument so poor, that it seemed to me to fit Mary McCarthy's famous put-down of Lillian Hellman -- that every word she wrote was a lie, including "a" and "the."  I would gladly disqualify Schlafly from addressing a university on a major occasion simply by virtue of the utter intellectual poverty of this piece alone.  (Her recent piece in Northwestern, by contrast, is unobjectionable, although also unexceptional in just about every way.)

So there is room for even someone who doesn't think universities ought to champion particular substantive values to exclude Schlafly by virtue of her just being a lousy thinker and writer, regardless of what one thinks about her substantive views.  I personally think universities would benefit from a no-hacks-at-graduation rule; for all I know, Rick agrees with me on this.  The problem, of course, is that universities, administration and students alike, often delight in inviting hacks and lousy thinkers to speak at graduations -- because they are famous, or funny, or powerful, or rich, or what have you. Which leaves the question Rick and Howard were getting at: do people object to Schlafly because she's a hack, in which case we should police the university gates against hacks more rigorously regardless of the ideology of the hack in question?  Or are the objections to Schlafly, although sometimes camouflaged as objections based on her being a lousy thinker, really substantive objections to her politics, in which case the use of the no-hack argument in her particular case can be accused of being disingenuous?   

Posted by Paul Horwitz on May 22, 2008 at 12:52 PM in Culture | Permalink | Comments (14) | TrackBack

The paradox of academic intolerance?

Brian Leiter's anger at Phyllis Schlafly's getting an honorary degree  from Washington University, her alma mater, perplexes me.  At first glance, I am inclined to believe that Leiter's position is a product of academic intolerance for viewpoints not prevalent in the academy but widespread in the population at large.  There is a certain delicious irony about such intolerance, given the academic conceit that profs stand above parochial prejudice.

But I could be mistaken on this score:  Maybe Schlafly's views are really beyond the pale, even if one adopted a stance of tolerance for matters about which reasonable people can disagree. 

The difficulty in resolving the question is that Leiter's invective against Schlafly is too general to be helpful on this score:  He calls her a "bigot," "parochial," "ignoramus," etc -- but those are epithets, not arguments.  They are, of course, applicable to all of us, in some measure.  (For instance, I am (a) an ignoramus about theoretical physics, (b) a bigot in my inveterate hostility towards any musical by French composer Claude-Michel Schönberg, and (c) parochial compared to many of my colleagues who are polylingual (alas, I speak only English fluently) and are always walzing off to some conference or teaching junket at Bellagio or Dubai or Singapore).

To my knowledge, Schlafly's specific positions and activities are that Schlafly (a) was adamantly anti-Communist and "anti-global" (whatever that means) during the 1950s, running for Congress on that platform; (b) opposed the ERA in the late 1970s; (c) believes that life as a full-time mother who accepts her husband's leadership in marriage is more socially responsible and fulfilling for women than life as a woman working outside the home (making her own choices to act as an author and activist and perennial candidate for Congress obviously ironic); and (d) has conservative views on sexuality and marriage -- being against premarital sex, abortion; etc. 

Which of these views places Schlafly beyond the academic pale?

I suppose that (c) comes close to an unacceptably subordinating position, at least to the extent that she recommends that wives obey their husbands. But even this view has a consent-based justification: To my knowledge, she urges that wives voluntarily accept their husband's leadership, not that the State impose such leadership on them. I certainly would not want my two daughters to accept such a marital bargain, and I have struck exactly the opposite deal in my own marriage where my spouse most definitely calls the shots. But I guess that this view of marriage still falls within a version of consent-based liberalism; It does not call for the subordination of one group to another as does, say, white supremacy, anti-semitism, etc. So I guess that I do not see how it is bigoted in any specific (i.e., non-epithet) sense of the term.

Schlafly's sexual conservatism -- (d) above -- has led her to condemn same-sex intercourse as immoral. That comes closest in my mind to a bigoted position, because it could be part of a larger belief that gay and lesbian people belong to an inferior caste or class. Such sexual conservatism is also consistent, however, with a less subordinating belief that everyone has, but should restrain, their homoerotic inclinations out of some notion that only reproductive sex is morally worthy or acceptable -- a view that is not inherently subordinating (although it strikes me as silly). Is Schlafly's rejection of same-sex sexual-romantic relationships the key belief that disqualifies her? Apparently 41% of the population share this view (see Gallup poll results) It seems odd to me to brand almost half of one's fellow citizens as ignorant bigots, even if one believes (as I do) that they are mistaken in their beliefs.

In short, without using epithets, can anyone explain to me precisely which view disqualifies Schlafly for an honorary degree from her alma mater?

Posted by Rick Hills on May 22, 2008 at 12:04 PM in Current Affairs | Permalink | Comments (18) | TrackBack

If not Schlafly, then who?

Washington University in St. Louis awarded an honorary degree to Phyllis Schlafly last week, a choice that sparked outrage among faculty and alumni and calls for the university to rescind the invitation, which it declined to do. Brian Leiter covered the controversy in detail. Ultimately, Schlafly got her degree and a number of students and faculty stood and turned their backs when she was introduced. Brian Leiter wrote about the controversy here, here, here, here, and here.

The arguments against the university honoring her always were carefully framed in seemingly neutral terms. It was not about disagreement with her political views (especially her opposition to the Equal Rights Amendment). It was about her anti-intellectualism, her history of demagoguery and name-calling instead of engaging with her opponents, her opposition to and criticism of rational political and scientific discourse, her opposition to scientific inquiry. It was about her views of women as intellectually inferior to men and thus unfit for the university environment, her opposition to the principles of judicial independence, and her history of bigotry against gays and lesbians, immigrants, women, feminists, and librals. And Schlafly did not help herself by insulting the faculty and students who objected to her as "a bunch of losers" who need to "get a life" and suggesting that the students who turned their backs were not mature enough to be graduating college, comments showing a disrespect for public discussion and for what was a thoughtful, non-disruptive, and meaningful act of symbolic counter-speech)

But many of the objections to Schlafly cannot easily be disentangled from her substantive political views. Her views about the intellectual capacity of women are entwined with political views about the role of women in society and relations between men and women and related issues such as domestic violence. What many label as bigotry against gays and lesbians relates to a political view about homosexuality. At least some of her opposition to science ties back to her political opposition to teaching evolution and support for creationism. Now, I object to and disagree with every one of these political positions, as do many students, faculty, and others. But the controversy was, purportedly, not about her political views.

So here are three related questions:

1) If not Schlafly, then who? What pundit/commentator/activist from the far-religious-right wing social conservatism would be acceptable? What person who holds similar views to Schlafly about the role of women, about creationism v. evolution, about gay rights, etc., would not be similarly objectionable as a recipient of an honorary degree?

2) Does this somehow become about politics and viewpoints? Is it that some political and social views simply are beyond the pale for a university environment? Is it that these positions are inherently anti-intellectual and dismissive of reasoned debate, thus inappropriate for academic recognition through an honorary degree? Maybe so. But if so, then let's say that and let's conduct the debate about honorary degrees for people such as Schlafly on those explicit terms.

3) Is there anyone on the political left who could be objected to as similarly anti-intellectual or as engaged in demagoguery rather than rational discourse? Dinner companions the other night (both Wash. U. professors, not in law) suggested Michael Moore. I am not sure--anyone else?

Posted by Howard Wasserman on May 22, 2008 at 08:19 AM in Life of Law Schools | Permalink | Comments (14) | TrackBack

Levitin's Law of USB Flash Drives

I’d like to propose a variation on Murphy’s Law for USB flash drives: a flash drive will always be inserted into a USB port upside down on the first attempt.

I follow scientific naming conventions for any new species I discover to a punctillio of an honor the most sensitive. No autoeponymy for me when a new beetle or squid crosses my path. But, to my knowledge there is no such modesty required for rules of life, so I am claiming this as Levitin's Law of USB Flash Drives, planting my flag on this (apparently) terra nova. Now when you insert a USB flash drive upside down, you can groan about Levitin's Law.

What does this possibly have to do with law teaching? Well, just try using a flash drive when making a presentation, and you'll see.

Really, I don’t know why USB ports are designed with a distinct top and bottom, but this strikes me as one of the great failures of modern technology.

Posted by Adam Levitin on May 22, 2008 at 12:01 AM in Information and Technology | Permalink | Comments (4) | TrackBack

Wednesday, May 21, 2008

Classroom Laptop Use and Final Exams

I've long been convinced that my students would do better in law school if they left their laptops at home and came to class with a pencil and notebook.  I took notes the old-fashioned way in law school and have no regrets about the results.

But when it came time for final exams, I dragged out the laptop.  I liked the clean, typed version of the answer and the ease of editing by cutting and pasting.   And of course I could type much more quickly than I could handwrite, even if the laptop seemed rather uncomfortable and unfamiliar.  As a professor, I'm equally a fan of typed exams, finding them much easier to read than the handwritten ones.  

So a question for those professors who have advocated banning laptops in class: Do you also support banning laptops for the writing of final exams?  Is there a principled distinction between classroom laptop usage and final exam usage?  Many of the reasons I like to read typed final exams are the same reasons advanced by my students to support laptops in class.  I worry that it's a bit presumptuous of me to say they're wrong about class notes, when I clearly prefer the laptop product on final exams.

Posted by Carlton Larson on May 21, 2008 at 04:42 PM in Life of Law Schools | Permalink | Comments (16) | TrackBack

Jeff Toobin and "Extremism"

According to Jeffrey Toobin, in this much-remarked (though, in my view, underwhelming) New Yorker essay, Sen. McCain's May 6 speech on judges and the judiciary, and the facts that he "has long touted his opposition to Roe" and "has voted for every one of Bush’s judicial appointments", show that he is "getting his advice on the Court from the most extreme elements of the conservative movement."

I would have thought it was obvious and uncontroversial -- i.e., not "most extreme" -- that it is possible -- I've seen it done! -- for decent, thoughtful, informed people to believe that Roe was wrongly decided, that those of President Bush's judicial nominees who have been confirmed should have been confirmed, and that, generally speaking, it is a good thing to have federal judges and Justices who approach their work more or less in the way that Chief Justice Roberts and Justice Alito approach theirs.  (It is, of course, just as obvious to me that such people can and do think otherwise.)  No?  (Disclosure:  I'm on -- I confess! -- Sen. McCain's "judicial advisory committee", though I have yet to be asked by the Senator for any "advice", extremist or otherwise.)

Posted by Rick Garnett on May 21, 2008 at 11:46 AM in Constitutional thoughts | Permalink | Comments (19) | TrackBack

Same sex marriage and the "parade of tolerables"...

Rick's correct to note the general point on slippery slopes below, but I think his application of the point doesn't translate. Let me offer a couple quibbles re: the fine-grained legal theory. To get us to reach a conceptual ledge, Rick writes: Public nudity is, well, publicly visible; bestiality does not foster emotionally important human sociability; polygamy thrives on subordination of women; and so forth.

I recognize that Rick is being somewhat quick here, so I take it with a grain of salt, but consider:
a) public nudity may be no more shocking to us now than inter-racial coupling was to some communities in the past. And so the public aspect of public nudity is not really a conceptual ledge if what predicates opposition to it is merely aesthetic offense, no different in kind to the revulsion that racists had when they saw whites kissing blacks in public, or more recently, gays kissing each other in public.

Here the slope really is slippery--of course, its slipperiness is based on how pliable the social norms are. It might well be that the norms will be stickier here because of expectations of tangible harms. Maybe public nudity is opposed because it will cause rubbernecking and car accidents. But as society becomes more naked, less rubber-necking occurs. There's a dynamic loosening of the norm. In this vein, it's worth thinking of how some traditional societies view the allure of even fully-clothed women not wearing burkas or hijabs (or shaytels...). In those societies, if citizens wore what my students at FSU wear to class, it would be cause for commotion. Here and today, it barely registers.

b) the bestiality issue cannot rest on the ledge of failing to "foster" "emotionally important human sociability." First, that might suggest a reason not to have pets more generally. 

Second, it suggests that a person couldn't have sexual relations with a dog that are as emotionally meaningless as some of the hookups that occur in stripclubs, streetcorners, and bushes in the park. One might be a loving son and brother and husband, and still seek quick anonymous sex elsewhere. No necessary tension between human sociability capacities and quick sex with Trixie the sheep. (Think Woody Allen.)Bestiality to my mind is a concern because we can't think of animals as consenting meaningfully...  and it's the inherent coerciveness that seems problematic.  But if that logic does the work, it should also suggest a principle of vegetarianism because animals also don't consent to their slaughter.

c) polygamy is complex, as you know; much more so than just thriving on the subordination of women. One need only look at a) the existence of polyandry across time and space (which is admittedly less prevalent than polygny), and b) the fact that polygamy activists make their claims on several grounds including: i) it actually increases women's opportunities in the workplace vis-a-vis childcare responsibilities, and ii) it respects women's and men's liberty interests in polyamorous relations.

So only bestiality really rests upon a "conceptual ledge." The public nudity and polygamy examples are just aspects of social norms subject to the normative force of the liberty-advancing principles that supervened on miscegenation laws and now prohibitions against SSM. Let the slope slip against objections of "ickiness" -- at least as it relates to the use of the criminal law in a diverse liberal society.

Btw, there was a good post on Volokh.com recently by Dale Carpenter trying to draw the distinctions between SSM and polygamy.**  But color me unpersuaded. Dale links to this post by John Corvino, a philosopher interested in trying to stave off the slippery slope. It strikes me that Corvino's answer is missing the force of the liberty arguments at the heart of private ordering, and when SSM opponents adduce the parade of "horribles" there is no danger to those of us who believe it's really just a parade of "wonderfuls" or more plausibly, a parade of "tolerables."

**I can't link to it b/c for some reason the volokh.com site is not responding.

Posted by Administrators on May 21, 2008 at 10:35 AM in Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (4) | TrackBack

The slippery slope to endless "slippery slope" rhetoric

The California Supreme Court's recent decision on gay marriage has predictably revived that old perennial favorite of arguments against substantive due process arguments for sexual privacy -- the "slippery slope."

You know the drill: If courts strike down x law regulating sexual conduct, then it will be logically impossible to avoid striking down y, z, a, b, and c laws. That latter set usually involves references to laws prohibiting bestiality, polygamy, and public nudity. But Justice Scalia, warming to his theme in his Lawrence v Evans dissent, added invalidation of laws against "masturbation" to the usual series (539 U.S. 558, 590). (I did a double take when I saw that new marcher in the parade of horribles: Since when did any states have laws against masturbation?)

The obvious response to the "slippery slope" is the "conceptual ledge": There are lots of natural resting places for the mind, if one only bothers to look for some fine-grained moral/legal theory. Public nudity is, well, publicly visible; bestiality does not foster emotionally important human sociability; polygamy thrives on subordination of women; and so forth. Of course, such theories require courts/legislatures to pick and choose on the aspects of human sexuality that they think are worth protecting from the law and those that are not -- but that's hardly news.

So why do patently unconvincing slippery slope arguments grow like black mold in a leaky attic every time a court makes a decision about sexuality? I think that we've used slippery slope arguments so carelessly that we are losing our intellectual capacity to draw fine-grained conceptual distinctions. Once one starts invoking the essential similarity of one thing to another, one can't stop: The temptation to assert foolishly that logical consistency requires elision of any distinction not crudely cut with a meat cleaver becomes an addictive habit. (E.g., "You think animals have rights? Why don't you let them vote?" "You think invading Iraq was a good idea? Why not China?" And so forth).

Maybe we should just swear off "slippery slope" arguments entirely to avoid sliding into such conceptual incoherence. After all, once you start, you can't stop: It's a slippery slope....

Posted by Rick Hills on May 21, 2008 at 08:56 AM in Constitutional thoughts | Permalink | Comments (8) | TrackBack

More on the Free Speech Protection Act

Yesterday, I wrote about the personal-jurisdiction issues with the Free Speech Protection Act of 2008, proposed federal legislation that would create a cause of action to stop U.S. enforcement of a foreign defamation judgment where the speech at issue would be protected from liability by the First Amendment. The bills provide for personal jurisdiction in the United States based solely on a foreign individual filing a foreign defamation action against a U.S. resident, an effort to get around the jurisdictional problems that past U.S. persons have had trying to avoid U.S. enforcement of foreign judgments.

The innovative substantive development in the federal legislation is to allow plaintiffs under the new law (defamation defendants in the foreign action) to seek not only declaratory and injunctive relief from domestic enforcement of the foreign judgment (which they could do under current law), but also to seek damages. First, the bill establishes a classic "clawback" provision, under which the U.S. person can recover damages in the amount of the foreign judgment and costs and fees incurred in defending it. Second, it allows for damages for harms suffered as a result of the adverse judgment, such as lost opportunities to publish. Third, and most dramatically, the bill provides for an award of treble damages if the jury determines "by a preponderance of the evidence that the person or entity bringing the foreign lawsuit at issue intentionally engaged in a scheme to suppress rights under the first amendment to the Constitution of the United States by discouraging publishers or other media not to publish."

Now, I am pretty close to a First Amendment absolutist. And I think English defamation law (and much European free-speech law generally) is too pro-plaintiff and chilling of free speech. But I have some problems with this legislation.

First, clawback provisions are generally problematic. The essence of the claim is that the substantive law of Jurisdiction A makes it a civil wrong that the substantive law of Jurisdiction B makes some conduct actionable. And Jurisdiction A guarantees as a remedy whatever an individual was found liable for as a tortious act under the law of Jurisdiction B. It also shows some amount of disrespect for the law of other sovereign nations--not only will we not recognize your judgments, but we will make your judgments into actionable wrongs, because of our disagreement with your substantive law. Much has been made in Congress, in the courts, and in the scholarly discussion about how foreign law must not be allowed to interfere with U.S. domestic law. But a clawback provision does something very similar--it tries to influence foreign law by essentially making foreign law civilly actionable as a matter of U.S. domestic law.

Second, it is recognized that filing a civil action is protected to some degree under the First Amendment's Petition Clause. The damages provision undermines that right, by making the foreign plaintiff liable for pursuing remedies that relevant substantive law makes available. This is admittedly indirect; I am not sure that the right to petition for redress of grievances includes foreign persons petitioning foreign governments (courts). But there is something fundamental about the ability pursue civil litigation that should not form the basis for civil liability.

Third, the treble damages provision, which allows for treble damages if the foreign plaintiff "intentionally engaged in a scheme to suppress rights under the first amendment," is particularly problematic. But another way to describe a person engaging in a "scheme to suppress rights" is a person availing himself of the substantive defamation law of a forum. After all, the goal of all defamation law is to get the defendant to stop publishing statements that harm the plaintiff's reputation. And a smart plaintiff will choose the forum with more-favorable substantive law. Thus, the goal of all defamation law can, at some level, be understood as a scheme to suppress First Amendment rights, particularly where the plaintiff seeks out a foreign forum with substantive defamation law that is less speech-protective than the First Amendment regime. So this language either is meaningless or it arguably covers any situation in which a foreign plaintiff goes into a foreign forum (rather than a U.S. forum) on a claim that is meritorious under foreign law but would fail under the First Amendment. Perhaps the bill aims only at those who use foreign law for something like SLAPP suits--but the language seems broader than that.

Fourth, the bill is arguably under-inclusive. If Congress is truly concerned with the chilling effect that less-speech-protective Europe law has on U.S. speech, it should not stop with defamation law, but should provide protection from all European laws that potentially abridge expression that would be protected under the First Amendment. Consider Yahoo! v. LICRA, the Ninth Circuit case dealing with the enforceability of First-Amendment violative foreign judgments. Yahoo! was sued in France not for defamation, but for providing access to Nazi paraphernalia and other materials (such as Mein Kampf) that violated the more-speech-restrictive French hate speech laws, but that would be protected by the First Amendment. If the idea of the federal cause of action is to protect U.S. speakers from foreign judgments imposed for protected speech in the United States, Yahoo! needs the insulation of a damages claim just as much as a defamation defendant. So, too, might a future domestic publisher or author who runs afoul of some future European hate-speech regulation that prohibits, or example, cartoons criticizing radical Islam.

Again, none of this is to defend English defamation law or other European laws that implicate free-speech concerns. I am with many scholars in believing that much European law is too restrictive on speech and not committed to (what I view as) appropriately broad free-speech protections. But the essence of sovereignty is the power to decide the substantive legal rules to which those within its jurisdiction are bound. Federal law is free to decline to enforce the judgments of other sovereigns that are inconsistent with fundamental U.S. law. But it goes an extra, inappropriate, step to turn foreign law into a violation of U.S. law.

Posted by Howard Wasserman on May 21, 2008 at 08:20 AM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Tuesday, May 20, 2008

Currency and the Blind

Can you tell a $1 bill apart from a $20 bill with your eyes closed? For that matter, can you even be sure it is in fact a bill? If you're vision-impaired it can be difficult or impossible to distinguish US paper currency of different denominations. Unlike just about every other Western country, all of our bills are the same size, same color (excluding some recent changes to keep the North Korean government's counterfeiters at bay), and same texture. The inability to distinguish between paper currency denominations makes the vision-impaired extremely vulnerable in cash transactions; they can easily tender too much money or receive too little change. Prof. Otis Stephens at UT College of Law explained this poignantly: I cannot emphasize enough the feelings of insecurity and vulnerability which I experience whenever I engage in currency transactions, due to my inability to distinguish between denominations.”

The American Council of the Blind sued and won in district court over the Treasury's objections to the cost and bother of having to change the currency. Now the D.C. Circuit has upheld the district court. Treasury may yet appeal, but money might look and feel very different in coming years.

Frankly, as someone who is not vision impaired, more easily distinguishable bills will make me feel much more comfortable dealing with cash--I won't having that nagging worry that I handed the cabbie a $20 instead of a $10.

Curiously, the dissent seemed particularly concerned with the impact on third-parties, like vending machine makers, if the currency were changed. That strikes me as quite strange--isn't this a problem every time the currency is updated. I know there are still plenty of machines that won't take the new $20s. This just strikes me as a known risk of being in the vending machine business. My own interest in this is from the payments side; disability law is not my field. I'm curious if in a disability law case like this brought against the government the court is supposed to consider third-party externalities.

Posted by Adam Levitin on May 20, 2008 at 10:53 PM in Constitutional thoughts | Permalink | Comments (6) | TrackBack

Mais Oui: Law and Society 2008, Montreal

Ever the francophile, I am particularly excited about this year's LSA meeting, May 28 to June 1, Quebec, Canada. As the meeting is outside the United States (that happens often;  last year it was in Berlin), this will be a joint meeting, this time with the Canadian Law and Society Association.

Two meetings ago I posted Unsolicited Advice on How to Have a Successful LSA Experience (and other oversized conferences). I think the list of is still relevant but please add your thoughts and ideas.

In the past few years, we co-organized with concurring opinions a bloggers’ happy hour at these meetings, much like their AALS counterparts. This year, I haven’t heard of many from our blogging community who are attending the meeting (blame Canada?). I actually think that the Law and Society Association Annual Meetings are a must, at least once every few years, for anyone in the legal academy. I believe it is the largest interdisciplinary international annual meeting, bringing together people from law, economics, sociology, philosophy, psychology, polical sci, anthropology and also many other disciplines such as urban planning and architecture, design, information schools…

Alors, are our readers attending? shall we plan post-reception drinks?

One thing to point out is that as often with these huge conferences, alot of the action is in the conferences-within-the-conference. For example, my natural home these days is the Regulation and Governance Collaborative Research Network (organized by Cary Conglianese (Penn) and John Braithwaite (ANU). Cary puts together the R&G whole program planned for those days on the CRN website hosted by the Penn Institute on Regulation which he chairs.

Posted by Orly Lobel on May 20, 2008 at 10:34 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack

Personal Jurisdiction and the Free Speech Protection Act

Identical companion bills have been introduced in the House (H.R. 5814) and Senate (S. 2977), both entitled the Free Speech Protection Act of 2008. The bills aim to eliminate "libel tourism," where foreign plaintiffs obtain foreign (usually European) defamation judgments against U.S. authors and speakers, in cases where the speech at issue would be protected under New York Times and the First Amendment. The concern, as the introductions make clear, is that the threat of foreign litigation will have a chilling effect on First Amendment activities in the United States. The bill creates a federal cause of action for the U.S. speaker to sue the foreign plaintiff to prevent enforcement of the foreign judgment and to recover damages, unless the United States court determines that the speech at issue would have constituted actionable defamation under the First Amendment. New York recently enacted its own Libel Terrorism Protection Act that does the same thing as to New York persons. (H/T: First Amendment Law Prof Blog and First Amendment Center).

Solely as to stopping enforcement of the foreign judgment, none of this is entirely necessary. Under current law, the U.S. speaker (foreign defendant/judgment debtor) could assert the First Amendment as a defense to a domestic enforcement action. Alternatively (and more commonly), the U.S. speaker could file a pre-enforcement action against the foreign plaintiff (judgment creditor) for a declaratory judgment establishing that the foreign judgment is unenforceable under the First Amendment and for an injunction prohibiting domestic enforcement of the foreign judgment.

But the bills seek to correct several problems that speakers have encountered in trying to raise First Amendment defenses to enforcement in the United States. The first, and the real driving force behind the enactments, is personal jurisdiction.

The New York law is a fairly direct response to Ehrenfeld v. Mahfouz in New York. Ehrenfeld is the author of Funding Evil: How Terrorism is Financed--And How to Stop It, which alleges that a number of people, including Mahfouz, a Saudi banker, financed Al Qaeda and other terrorist groups. Mahfouz won a defamation default judgment against Ehrenfeld in England (whose libel laws are notoriously pro-plaintiff). Ehrenfeld then filed a pre-enforcement action in federal court in New York, but it ultimately was dismissed for lack of personal jurisdiction, when the New York Court of Appeals, on certification from the Second Circuit, decided that its Long Arm Statute did not reach Mahfouz, whose contacts with New York were limited to sending letters and other documents from the English litigation (the complaint, the court order).

The new state law amends New York's Long Arm Statute to allow for personal jurisdiction over a foreign person who obtains a foreign defamation judgment, in a declaratory judgment action challenging the constitutional enforceability of the foreign judgment, if the article was published in New York and the speaker (the foreign defendant/domestic plaintiff) is amenable to New York jurisdiction and has property or assets in New York. The proposed federal laws are similar, providing for jurisdiction within the United States as a whole over any person who files a foreign lawsuit against "a United States person," where the United States person has assets in the United States against which the foreign plaintiff might execute the judgment.

But in trying to accord speakers additional protection, the proposals raise some interesting and open issues relating to due process and personal jurisdiction. The jurisdiction granted by the federal and state legislation only is constitutional under the "effects test" of Calder v. Jones, which requires that a defendant direct conduct at a state, intending to cause effects in that state, where some (if not the brunt of) harm will be felt in that state. But it is not clear that Calder is satisfied solely by filing a lawsuit against a resident of a state (or the United States as a whole), with no other contacts with, or conduct directed at, the forum.

Of course, in most cases, the foreign plaintiff will do more than simply sue the forum resident for defamation; he likely will send papers, letters, and other correspondence relating to the foreign lawsuit to the forum resident. In Ehrenfeld, for example, Mahfouz sent multiple cease-and-desist letters to New York, served court papers on her in New York (the complaint, the final court order), and sent multiple correspondence relating to the foreign lawsuit. But it is an open question whether that is enough. Lower courts are split on whether the effects-test conduct must be tortious or whether contacts such as sending lawful letters and legal documents is sufficient; the en banc Ninth Circuit, in the most high-profile case of this kind, has said conduct need not be tortious and legal correspondence is sufficient. The Second Circuit did not reach the issue in Ehrenfeld.

A lot of commentators (especially internet and IP scholars, where the test most often rears its head) criticize the effects test because of its potential breadth and reach. And the situations addressed in these laws would expand that test even further, by permitting jurisdiction over an absent defendant based only on a few or one instances of perfectly lawful, and constitutionally protected, conduct--filing a civil lawsuit. This will be an interesting test of just what effects entail for due process purposes--and maybe a new opportunity for the Supreme Court to take a personal jurisdiction case, something it has not done since 1990.

Posted by Howard Wasserman on May 20, 2008 at 03:37 PM in Law and Politics | Permalink | Comments (1) | TrackBack

Justice Scalia's One-Way Ratchet: Congress and Federal Habeas Jurisdiction

I've just posted to SSRN a draft of a new (and short) essay that is to be published later this summer by The Green Bag. The essay, titled "The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia," tries to shed light on a missing piece of the ever-ongoing debate concerning Congress's power over the habeas corpus jurisdiction of the Article III courts.

To spoil some of the fun, the essay's central argument is that statutes such as the Military Commissions Act are constitutionally problematic entirely because there are no other courts in which detainees may otherwise bring habeas petitions. Ex parte Bollman arguably prevents detainees from going straight to the Supreme Court, and Tarble's Case, for better or worse, prevents detainees from pressing their claims in state courts. None of that, of course, is new.

But it's an obscure provision of the D.C. Code (section 16-1901(b)), and not a Supreme Court decision, that closes off the last possible escape valve -- the D.C. Superior Court. As the essay explains, the D.C. Superior Court would otherwise likely have the authority to issue a common-law writ of habeas corpus against a federal officer, which would vitiate any Suspension Clause-based challenges to statutes such as the MCA. In other words, what makes the constitutional question so tricky when Congress attempts to constrain the habeas jurisdiction of the Article III courts is that Congress already has constrained the jurisdiction of the one court that would otherwise be open...

In his dissent in St. Cyr, Justice Scalia suggested that Congress's power over federal habeas jurisdiction was necessarily plenary: "If . . . the writ could not be suspended within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet.” As the essay concludes, such a statement is absolutely true, but thoroughly incomplete. The ratchet results only from the fact that Congress has itself already precluded access to the common-law writ in the D.C. local courts.

Posted by Steve Vladeck on May 20, 2008 at 03:21 PM in Article Spotlight, Constitutional thoughts, Current Affairs, Peer-Reviewed Journals, Steve Vladeck | Permalink | Comments (0) | TrackBack

Obama, McCain, and the Farm Bill

David Brooks has a nice op-ed on McCain's courageous opposition to the Farm Bill and Obama's disappointing support for it.

I admire both candidates, but I think that Brooks is absolutely right: McCain just scored big against Obama in the race to win the LaFollette award for political courage (see my earlier May 14th post on this topic). Obama's supporters ought to doff their cap to McCain for opposing the inexcusable even at the risk of several swing states (e.g., Wisconsin, Minnesota, Ohio, and Michigan, which have large and powerful farmer blocs). Unlike NAFTA, the war in Iraq, or other ideologically controversial issues, this farm bill is really, uncontroversially, egregiously bad, whether you sit on the Left or Right.

Posted by Rick Hills on May 20, 2008 at 03:11 PM in Current Affairs | Permalink | Comments (0) | TrackBack

NYC, and the little notes at the end of the exam

I'm back in the Hassee now after a great trip to NYC for the New Voices in Legal Theory workshop, generously sponsored by Cardozo and organized by Ekow Yankah. I had the chance to meet for the first time a cluster of really interesting and sharp people (David Tabachnick, Vic Todros, Danny Priel, and Leo Zaibert) and to reconnect with a gaggle of other scoundrels and savages (e.g., Rob Kar (congrats on the recent tenure vote!), Adam Kolber, John Mikhail, Ekow, Eric Miller, Vera Bergelson, Ken Ehrenberg, and Kevin Kordana).  Many thanks to Ekow and Cardozo for putting this together. After the jump, I offer a few recommendations/cautions based on the weekend's extracurricular activities.

But before I get to that, I've got a pile of exams still looking at me jealously. As I've been grading, two things have given me grist for a blog post. First, has anyone come across some priceless or at least worthwhile phrases that have stuck out while earning this semester's salary? I came across the "Cans of Construction" several times, which assuredly takes pole position. I'll clearly have to be better at enunciating next year.

Second, how do prawfs react to the inevitable notes at the end of the exam that say: "Dear Professor, I really loved your class and hope you have a great summer. Thank you for challenging us!"  Should we take them as sincere or ... psy-ops? Apropos Jack's investigative journalism escapade with the YLJ's quasi-anon policy--and the concern that certain info biases the decisionmakers--I think these notes mess with my head in a similar way, making it difficult to give these exams the low grades they sometimes warrant. But since I didn't announce a policy of "no bribery through flattery" earlier, I can't bring myself to penalize it now--regardless of their potential insincerity. Any coping strategies? (Besides: Get over it!)

What to seek: chocolate chunk cookies at Levain Bakery (74th near Amsterdam); fava hummus and falafel at the Hummus Place (Amsterdam near 74th); salmon burgers at Blue Water Grill; anything at Le Pain Quotidien (many locations); the WaZa Waffle at Norma's (the exalted brunch emporium at the Parker Meridien; home of the 1000$ lobster/caviar frittata); and the fries at Vynl (9th Ave in Hell's Kitchen); drinks at the Grotto on the Lower East Side.

What to avoid: the play November on Broadway--despite Nathan Lane's exuberant performance, it's a bit of a let-down from David Mamet; not much more than a sharper-than-average 90 minute sit-com; the creative but no less odd tasting butternut squash wontons at Vinyl.

Posted by Administrators on May 20, 2008 at 12:37 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack