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Monday, June 16, 2008

Who's Afraid of a Little Process?

If one peruses various of the comment threads to posts about the Supreme Court's decision last Thursday in Boumediene (see, for example, the comments to this post or to this one), one finds a similar criticism of Justice Kennedy's opinion repeatedly echoed in various places -- that "foreign enemy combatants" are not part of "We the People," and so therefore are undeserving of constitutional protections (including access to the writ of habeas corpus). I suspect that most -- if not all -- of the comments are actually by the same person, but whether they are or not is, ultimately, beside the point.

Instead, what has really gotten to me, and what I wanted to write about, is when/how we, as a legal community, forgot about the significance of process. The commenter(s) repeatedly assert(s) that it is "clear" that the detainees are bad guys, and that the process provided by the Military Commissions Act and the Detainee Treatment Act is more than adequate to assuage any fairness concerns.

The problem, as Kennedy's majority opinion recounts fairly forcefully, is that there is no meaningful chance to contest the government's allegations in the DTA/MCA process. Consider this passage, from page 61 of the opinion:

One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla’s contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner’s counsel, however, now represents the witness is available to be heard. If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals’ generous construction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner.

So here's my question: Whatever happened to the significance of process?

Why are so many of the critics of Boumediene "convinced" that the detainees are "evildoers," notwithstanding the well-documented defects in the process provided by the DTA and MCA? Haven't we learned the hard way, too many times, that arbitrary governmental decisions have an incredibly high risk of error? Perhaps most simply, what of Justice Frankfurter's famous maxim that ""the history of liberty has largely been the history of observance of procedural safeguards." Granted, many of the detainees were picked up by the U.S. military "on the battlefield," in the midst of combat operations against our soliders. But just as many weren't, including Boumediene himself. And it's important to keep that in mind...

I recognize, as I must, that reasonable people will disagree on the ultimate merits questions in these cases -- on whether individuals affiliated with al Qaeda can be held indefinitely, or potentially tried by military commissions, etc. But doesn't all of this depend on at least some faith that the individuals in question are in fact who the government says they are? If the answer is "yes," why be so upset at a Supreme Court decision giving the detainees a reasonable opportunity to contest that allegation? if the answer is "no," then what, other than the good graces of the Executive Branch, keeps us from being next?

Postscript: Apropos the above, and the importance of process to separate the innocent from the guilty, consider this McClatchy story posted today...

Posted by Steve Vladeck on June 16, 2008 at 12:21 AM in Blogging, Constitutional thoughts, Steve Vladeck | Permalink | Comments (16) | TrackBack

Sunday, June 15, 2008

The Roots of Canada's Recent Apology to Native Peoples in U.S. Tort Claims

The NYT reported last week that "The government of Canada formally apologized...to Native Canadians for forcing about 150,000 native children into government-financed residential schools where many suffered physical and sexual abuse." (Click here for full story.) All but a few of the 130 residential schools involved were operated under contract by religious denominations, including the Catholic, Anglican, and Presbyterian Churches.

This historic apology is part of a larger story of clergy sexual abuse in government-funded and church-operated residential institutions throughout Canada. Public concern in Canada over sexual abuse by clergy in residential schools became widespread with explosive revelations in 1989 of sexual abuse at the Mount Cashel orphanage operated by the Christian Brothers' religous order in Newfoundland. Concurrent church and government investigative commissions heard testimony from dozens of victims who described physical and sexual abuse at the hands of the superintendent, staff, and other residents over the course of more than two decades. The commissions also found evidence of collusion among church officials, law enforcement, and the press to cover-up abuse allegations in the late 1970s and 1980s. Subsequent government inquiries, criminal investigations, and civil lawsuits in the 1990s and 2000s uncovered similar abuse and cover-up at dozens of residential institutions for children throughout Canada.

Even before the revelations at Mount Cashel, however, the Canadian news media carried stories of U.S. litigation for clergy sexual abuse, notably claims in 1984 and 1985 against the Catholic Church for the sexual molestation of dozens of boys by Father Gilbert Gauthe in Louisianna. In response to this U.S. litigation, the Canadian Conference of Catholic Bishops first adopted guidelines for responding to abuse allegations in 1987. The Canadian public, exposed to media coverage of clergy sexual abuse litigation in the U.S. in the mid-1980s was more willing to believe the claims against Canadian clergy that began with the Mount Cashel affair. While it might be overstating the case to suggest that U.S. tort litigation played an essential role in Canada's coming to terms with clergy sexual abuse, it certainly primed the Canadian public and prompted Canadian Churches to begin addressing the problem.

I offer a fuller analysis of the influence of U.S. tort litigation on Canada's attempts to confront clergy sexual abuse in residential institutions (as well as similar attempts in Ireland), in Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard, 2008).

Posted by Tim Lytton on June 15, 2008 at 10:38 PM in Torts | Permalink | Comments (0) | TrackBack

Human trafficking in Florida

A few weeks back, William Finnegan had an outstanding piece of reportage in the New Yorker on the scourge of human trafficking. Most people don't know enough about the scope or intensity of this tragic trade in human flesh, so, if you haven't read the article yet, I want to draw your attention to it. Well-worth your while. Here's the link. And here's a link to an MP3 file of Finnegan talking about related matters.

The article addresses how the globalization of human trafficking occurs, with a focus on the efforts from those in states like Moldova. However for those of you interested in what the "counter-traffickers" do here in the US, and particularly in Florida, you might find this article from the Florida Bar News useful and interesting, which profiles the work done by the FSU's Center for the Advancement of Human Rights, and specifically the Center's head, Terry Coonan, and my wife, Wendi Adelson. This is a cause that has drawn wide and deep bipartisan support, and should continue to do so. The US is a magnet destination for traffickers and their victims and its reduction requires vigilance--from all of us.

Happy Father's Day.

Posted by Administrators on June 15, 2008 at 10:30 PM in Current Affairs | Permalink | Comments (0) | TrackBack

What I learned about blogging from Bill Bishop's book on polarization & geographic sorting

It is still early to be picking favorite books of 2008. But I think it unlikely that anything in the Non-Fiction/Popular Poli Sci category will beat Bill Bishop, The Big Sort: Why Clustering of Like-Minded America is Tearing Us Apart (Houghton Mifflin 2008). The essential theme of Bishop's book is that there has been a remarkable increase in county-level sorting based on ideology since 1965, and that this sorting is leading to polarized politics and culture. Aided by Robert Cushing, a Professor of Sociology and Statistics, Bishop has assembled a striking array of data showing that inter-county migration based on ideology has increased precipitously in the last 43 years: Republicans and Democrats are both seeking out counties where their preferred candidate is likely to win by a landslide (i.e., 20% or more). Liberals head for Travis County (Austin), TX; Washtenaw County (Ann Arbor), MI; San Francisco County, CA. Conservatives head for Lubbock, TX; Grand Rapids, MI; Orange County, CA; etc. Bishop also provides a powerful argument that, contrary to some recent claims by respectable political scientists (e.g., Morris Fiorina, Culture War? The Myth of a Polarized America), this geographic sorting has made Americans far more ideologically polarized than they were prior to the 1970s. Indeed, Bishop shows that we Americans are now ideologically segregated in our basic consumption choices -- the news shows we watch (Fox versus NPR), the beverages we drink (micro-brews versus, well, macro-brews), even the pets we own (yes, there is a significant correlation between owning a dog and being a resident of a Republican-landslide county).

There is much one could write about this remarkable and accessible book. Despite its being essentially a popularization of existing academic literature, The Big Sort may even eventually join the ranks of classics on local spatial economies -- a literature that has blossomed since Wallace Oates based an entire economic literature on Tiebout's now-classic A Pure Theory of Public Expenditures. Best of all, Bishop transcends his own identity as an Austin, Texas liberal by dispassionately -- even hilariously -- describing the paranoia of both Left and Right.

But I would like to focus on the book's relevance to (of all things) blogging, a topic that Bishop does not discuss. The Big Sort sheds light on a mystery (at least, to me) of this medium: viz., the touchiness of bloggers, Left and Right, and their willingness to invoke the alleged bad faith or stupidity of their opponents as an explanation for ordinary ideological disagreements. Here's the explanation that Bill Bishop might offer: Blogs allow geographically segregated groups to interact. According to Bishop, this sort of trans-county and trans-ideological interaction is unfamiliar to the participants. They predictably use the medium as a cathartic outlet to lambast unseen ideological opponents with whom they lack daily dealings.

Hence, the hyper-ventilated tone of blog comments on ideologically coded topics like free trade, habeas writs, or "hate speech" regulation. Judges who read Article I, section 9's protection of the habeas writ are not merely mistaken about the best reading of the law: They are corrupt, rent-seeking ideologues. Politicians who want to restrict "hate speech" are not merely misguided or over-zealous: They are the stooges of Left-wing commissars of political correctness. Advocates of tariff protection for American labor are not simply making a poor policy decision: They are xenophobic or economically illiterate. (I myself am a fairly doctrinaire free-trader -- but I was taken aback by the snide or strident tone of my fellow free-traders in response to one of my own posts).

(Of course, I am not exempt from deploying polarizing rhetoric. Sadly, my own ideology is the lonely one of being a booster for decentralization of various stripes -- in particular, localism and federalism. (Hence, my irate post on Riley v. Kennedy). I have yet to find a county where we decentralizers form a majority: When I do, I'll move there and contribute in my own little way to Bishop's Big Sort).

In such an atmosphere, one cannot write in a ironic vein on any topic on which the "Reds" or "Blues" have passionate feelings without inviting a cascade of savage -- indeed, sometimes apparently hate-filled -- invective. Of course, angry comments are harmless: It is not as if Sumner is being caned by Butler on the Senate floor. But one does detect an oddly similar level of intense hatred, even though the practical stakes are exactly zero. Moreover, there is an apparent eagerness to sniff out the author's hidden ideological agenda even when such an agenda is hard to imagine. For instance, if one hazards a guess that Canadian politicians and press will ultimately put the kibosh on over-enforcement of Canadian "hate speech" regulation, one must be a fan of censoring conservative speakers. (I was accused of harboring such a desire to see conservatives censored by the Canadian Human Rights Commission even though I described Canadian constitutional doctrines as "appalling" and Canadian bureaucrats as "petty Robespierres" and "thought police." Incidentally, I was a registered Republican until I moved to NYC, where such a party affiliation prevents one from voting in the only contest that counts -- the Democratic Primary -- and I am undoubtedly to the Right of most of my colleagues at NYU Law School).

What lesson should one take away from this ideologically over-charged atmosphere? If one had an earnest and reforming bent, one might use the geographically boundless blog to transcend ideological divisions that, according to Bishop, are increasingly mapping on to geography. If one wanted to undertake such a worthy mission, one would have to adopt an unctuously cautious tone, phrasing every statement in the most qualified subjunctive to avoid driving off Reds or Blues. One could imagine that a blog, run along these lines, might be a sort of United Nations, binding together Red and Blue counties

Sadly, I lack such a reformer's zeal, so I shall continue writing in my usual sloppy way, oblivious of the ideological land-mines that I explode as I blunder about. And if you, Gentle Reader, are moved to obscenity by what you take to be my hidden agenda, please feel free to let fly your most eloquent hyperbole. But pick up Bill Bishop's book after you relieve your desire to vent your ire. You might have a moment of shocking self-recognition -- but, in any case, you certainly will be in for a good read.

Posted by Rick Hills on June 15, 2008 at 03:52 PM in Books | Permalink | Comments (1) | TrackBack

Happy Fathers' Day

one of my favorite stories of fatherhood, from 100 Years of Solitude:

The children . . .  insisted that their father take them to see the overwhelming novelty of the sages of Memphis that was being advertised at the entrance of a tent that, according to what was said, had belonged to King Solomon. They insisted so much that José Arcadio Buendía paid the thirty reales and led them into the center of the tent, where there was a giant with a hairy torso and a shaved head, with a copper ring in his nose and a heavy iron chain on his ankle, watching over a pirate chest. When it was opened by the giant, the chest gave off a glacial exhalation. Inside there was only an enormous, transparent block with infinite internal needles in which the light of the sunset was broken up into colored stars. Disconcerted, knowing that the children were waiting for an immediate explanation, José Arcadio Buendía ventured a murmur:
“It’s the largest diamond in the world.”
“No,” the gypsy countered. “It’s ice.”
José Arcadio Buendía, without understanding, stretched out his hand toward the cake, but the giant moved it away. “Five reales more to touch it,” he said. José Arcadio Buendía paid them and put his hand on the ice and held it there for several minutes as his heart filled with fear and jubilation at the contact with mystery. Without knowing what to say, he paid ten reales more so that his sons could have that prodigious experience. Little José Arcadio refused to touch it. Aureliano, on the other hand, took a step forward and put his hand on it, withdrawing it immediately. “It’s boiling,” he exclaimed, startled.

Posted by Eduardo Penalver on June 15, 2008 at 01:15 PM | Permalink | Comments (0) | TrackBack

Say It Isn't So!!!

"Gay Couples Find Marriage Is a Mixed Bag," in Today's NYT.

Straight Couples Express Surprise, Shock.

Posted by Sam Kamin on June 15, 2008 at 11:35 AM | Permalink | Comments (0) | TrackBack

Saturday, June 14, 2008

Legitimate court-bashing versus illegitimate distortion

Senator Lindsey Graham reacted to the SCOTUS's decision in Boumediene by stating, "what happened yesterday was unprecedented. Americans are going to be shocked to find that that mastermind of 9/11, Khalid Sheikh Mohammed, now has the same legal standing as an American."

Does this statement cross the line separating reasonable expression of disagreement with SCOTUS and deliberate distortion of the facts? Given that Kennedy's opinion repeatedly acknowledges that non-citizens do not enjoy the same rights to the writ as citizens, it strikes me that Senator Graham's statement is baldly dishonest, even by the loose standards of elected politicians' trying to drive home a simple message. But maybe I am being too hard on the Senator?

Posted by Rick Hills on June 14, 2008 at 12:59 PM in Current Affairs | Permalink | Comments (9) | TrackBack

Sparing the Rod in Indiana: Reactions of a Parent and Jurisprude

I've been thinking about Mike Frisch's post over at Legal Profession Blog on the recent Indiana Supreme Court decision reversing a criminal conviction in the beating of a child.  Here's Mike's description of the case:

Images5 The defendant was the child's mother. He had stolen her clothes, taken the clothes to school, and lied when confronted. After taking two days to "ponder her options" they had a long conversation. When the child repeated the lies, mother had him remove his pants and "proceeded to strike him five to seven times with either a belt or an extension cord." Some blows landed on his arm and thigh as well as his buttocks. He went to the school nurse, who contacted protective services. The mother was arrested, charged and convicted at a bench trial.

The court held that the parental privilege defense is a "complete defense" that the State did not disprove beyond a reasonable doubt. The court considered the fact that the child was eleven years old and not a "first offender." The punishment was not "unnecessarily degrading" or disproportionate to the offense.

This case also got a lot of play at Volokh Conspiracy (post and comments), which outlines in more detail the legal test 0n parental privilege (Restatement Torts:  "A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education...."), and takes a sympathetic view of the ruling ("I'm not sure how helpful the test the court announces will be, but I'm not sure how the court could have done better.")

My reaction as a parent and jurisprude follows the jump.

Parent:  Despite my comically stereotypical performance of showing up at the Charlevoix Recycling Center in my Prius wearing an Obama t-shirt a few days ago, I'm no liberal when it comes to parenting.  First, I'm not a pacifist, so the mere idea of physical force is not the key here (one of my regrets is that I actually believed Colin Powell's assertions about WMD at the United Nations).  Second, I'm not perfect, and did on occasion use an open hand to smack a kid on the butt to get her or his attention early in my parenting career.  I cannot, however, imagine a circumstance in which as a matter of discipline I would use an object like a belt or a cord to strike a child.

I have come to feel fairly certain, however, that all forms of violence and abuse, physical, verbal, and emotional, are more about the parent's needs than those of the child.   If you can think clearly enough to make the violence or the abuse cold and dispassionate, then you ought to be able to think clearly enough to figure out something better.  And if it's not cold and dispassionate, it's more about the parent's anger and release than about discipline.

Jurisprude:  If Professor Volokh's sympathetic statement is about the court's treatment of the positive law, I guess, well, okay, it's a pretty loose test.  Nevertheless, the Hart-Fuller-Raz-Dworkin debate lives on.  Are you a hard positivist, who thinks this is wholly a descriptive exercise, and there's nothing here that should invoke issues of morality?  Are you a soft positivist who thinks perhaps this is a place where the positive law allows the judge to insert his or her moral views?  Traditional natural law proponent?  How about Dworkinian fit and justification, leading to a single correct answer (many of the commenters at Volokh would look at my comments here and beg to differ)?

My view:  law is a social institution and humanly constructed.  Wanting it to be morally sound doesn't make it so.   What it is is also inherently normative, that is, ought.  (I have written about the Kelsenian view of law's ought in the positive law.)  Trying to infuse law with a moral view, or justify a decision as the correct answer, is more often rationalization of an ought than description of an is.  We have a spectrum of moral views on this issue, ranging from "spare the rod" to "beat 'em with a stick."  I guess the positive law has done the best it can to accommodate those views, but acknowledging a parent's right to beat an eleven-year-old with an electrical cord would test the limit of my ability to separate my moral instincts from my view of the case.

Posted by Jeff Lipshaw on June 14, 2008 at 09:33 AM in Current Affairs | Permalink | Comments (4) | TrackBack

Friday, June 13, 2008

More on censorship, and freedom, in Canada

The Other Rick posted the other day on censorship, free speech, civility, liberalism, slippery slopes, and other things, setting off some interesting comments and reactions elsewhere.  For what it's worth, I think it's reasonable and welcome to question, now and again, if only to keep us sharp, the "my expressive liberty trumps your offense, dignity, etc., always and necessarily, because otherwise . . . McCarthy wins" sentiment that sometimes characterizes discussions in America about free speech.  Speech can harm, and we're kidding ourselves (a) if we think that our fairly libertarian free-speech stance is costless and (b) if we think there are not (at least) questions worth asking about whether those costs are distributed appropriately.

That said, I am not nearly so sanguine and cheery about what Rick calls our northern neighbors' "experiment" in censorship.  This editorial, which one of my Mirror of Justice colleagues posted the other day -- and which Rick also acknowledges in his post -- make me nervously skeptical about Rick's sense that free speech is "doing just fine up north."  With all due respect, it is not much comfort to me -- and I'm not sure why it should be much comfort to others who think the meaningful freedom of religion includes the freedom to, now and again, challenge currently-dominant values and norms -- to hear that "the Canadian who speaks with the usual Canadian circumspection and courtesy will . . . escape unscathed from the Commission’s thought police."

Now, if I thought that the end-game of Canada's "experiment" was just "politeness", maybe I'd be more comfortable waiting for the results.  My sense, though -- I have not, I admit, made a thorough study of this -- is that "politeness" is going to have substantive -- not merely "please" and "thank you" -- bite, and in a one-sided way.  Dan?  Paul?  Paul Shaffer?  Set us straight!

Posted by Rick Garnett on June 13, 2008 at 08:44 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

1. Is John McCain a Natural Born Citizen? 2. Goodbye (Especially to Cora, who Broke my Heart)

I have stayed longer than the usual Prawfs visit hoping to write a certain potentially fascinating (yet non-privacy invading or sensational) interview -based post, but for good and substantial reasons, it appears that it will not materialize.  Accordingly, I now sign off with gratitude and hoping that the following will not eliminate me from future consideration for another visit.

I am finishing a project which I hope Prawfs will mention in the near future.   The piece argues that  that under the Supreme Court's current views of the Constitution and the citizenship statutes, John McCain is not a natural born citizen.  It is not an airy-fairy theoretical claim, but based on plain vanilla application of established doctrine.  Thus, the year after Senator McCain was born, Frances Perkins, Secretary of Labor, then responsible for the Bureau of Immigration and Naturalization, explained that people in Senator McCain's position “are citizens in every sense except as a matter of law.”   That is, maybe such people should have been regarded as citizens.  But the law did not make them such, for reasons I explain.

Needless to say, almost everyone disagrees with this bottom line (even me, before I started looking in to it).   Here are blog posts by Althouse, Lindgren, Volokh and Kopel on Volokh,  Turley, Dorf, J. Rebekka Bonner on Balinization, Solum on Legal Theory Blog, The New York Times article, and the Washington Post article, the Senate press release after they passed a resolution saying he was a natural born citizen, and an opinion by Harvard Professor Laurence Tribe and former Solicitor General Theodore Olson.  Also, J. Rebekka Bonner's article on SSRN, and a Yale Law Journal note from 1988.

Thanks again to the Prawfs team for having me.

Posted by Marc Miller on June 13, 2008 at 06:29 PM in Housekeeping | Permalink | Comments (0) | TrackBack

Kozinski's Web Site Troubles

I'm home with a flu-like bug today, but I  thought it worth posting a quick link to this (for those who have not already read about it elsewhere): (HT TPM)

A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos.  Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, granted a 48-hour stay in the obscenity trial of a Hollywood adult filmmaker after the prosecutor requested time to explore "a potential conflict of interest concerning the court having a . . . sexually explicit website with similar material to what is on trial here."

In an interview Tuesday with The Times, Kozinski acknowledged posting sexual content on his website. Among the images on the site were a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. He defended some of the adult content as "funny" but conceded that other postings were inappropriate.  Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.

Kozinski's videos sound pretty tame to me, especially in comparison with the defendant's.  This seems like a desperate move by a prosecutor not too happy about being in front of a judge who is not likely to be sympathetic to obscenity prosecutions.  One of the great things about Kozinski is that he is not a hypocrite about these things.  As TPM notes:

In September 2001, Kozinski was a fierce opponent of any effort by Washington bureaucrats to monitor his computer, prompting Leonidas Ralph Mecham, the director of the Administrative Office of the Courts, to remark to the New York Times that "Kozinski had shown 'great interest in keeping pornography available to judges,' especially of what Mr. Mecham called 'the more homosexual and exotic varieties.'"

Judge Kozinski said Mr. Mecham's comment about ''homosexual'' Web sites appeared to refer to an incident in 1998 when one of his law clerks downloaded a Web site for a San Francisco gay bookstore and the Administrative Office complained. ''I don't think we need bureaucrats in Washington looking over our shoulders for this kind of thing,'' Judge Kozinski said.

Lessig has also weighed in with a well-taken defense of the judge:

His son set up a server to make it easy for friends and family to share stuff -- family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There's some ridiculous claim about "bestiality." But the video is not bestiality. It lives today on YouTube -- a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey's. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security -- everywhere -- is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people -- and publications -- should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.

Posted by Eduardo Penalver on June 13, 2008 at 01:27 PM | Permalink | Comments (5) | TrackBack

Jurisdiction, Merits, and the Detainee Cases

I have read Munaf, but not Boumediene in full, so for the moment I leave detailed commentary to others. I wanted to focus on a small aspect of the analysis in both cases: The Court finally seemed to separate the jurisdictional questions of whether a federal court can assert jurisdiction and consider a habeas petition from the substantive question of whether the petitioner is, in fact, in custody in violation of the Constitution and laws of the United States and is entitled to the relief sought (typically, release from custody).

This split is the essence of Munaf. The Court held that the district courts could assert jurisdiction (the basic, root power to hear, consider, and decide the issues in the case) over the petitions and decide whether or not to grant relief. It then decided that the petitions "do not state grounds upon which habeas relief can be granted" (slip at 15), clearly merits-based language. Similarly, as Marty has noted, Boumediene Court addressed only the issue of jurisdiction, concluding that Gitmo detainees could file and have the court consider habeas petitions, leaving for the lower courts to consider in the first instance what legal rights those detainees possess and whether they state a claim for relief.

Is this a big deal, since, at the end of the day, Munaf and Omar will be turned over to Iraqi authorities and possibly (likely?) tortured? Deborah Pearlstein thinks so and I would agree. The habeas debate has been another example of the inappropriate entanglement of jurisdiction and substantive merits, the separation of which has been an ongoing scholarly focus. Much of the debate and commentary about Gitmo and War-on-Terror detentions has failed to focus on the question of underlying constitutional and legal rights, focusing instead on the shorthand question of whether detainees are "entitled to habeas." But habeas simply is a form of jurisdictional grant, a power vested in the court to hear appropriate cases alleging detention in violation of the law and to grant appropriate relief in appropriate cases.

But habeas has no real content without the underlying substantive rights that protect individuals from detention. And habeas has no obvious limits without considering those underlying substantive rights. To say "detainees are not entitled to habeas" does not get us anywhere. The habeas power necessarily rests with a court (absent suspension) to hear cases of unlawful detention. Whether the writ (i.e., relief) should be granted depends only on whether the petitioner possesses an underlying substantive right that renders the detention unlawful.

Maybe this is formalism at work. And Steve may be right that it was odd, and perhaps unnecessary, for the Court to reach the merits as to either Munaf or Omar. But I am glad to see that, after these cases, the debate and commentary can focus on the appropriate question of legal rights and not on questions of jurisdiction.

Posted by Howard Wasserman on June 13, 2008 at 12:58 PM | Permalink | Comments (11) | TrackBack

Cardozo as Yoda

With all due deference to Rick Garnett's apt observation about Justice Kennedy, Justice Cardozo was doing Images Yoda-speak long before Yoda was a gleam in George Lucas' eye.  The fact that I'm in Michigan without access to my full Cardozo collection limits my examples, but how about these from the classic (and wrong) majority opinion on fiduciary duties in Meinhard v. Salmon:

No answer is it to say that the chance would have been of little value even if seasonably offered.

Little profit will come from a dissection of the precedents. None precisely similar is cited in the briefs of counsel. What is similar in many, or so it seems to us, is the animating principle. . . . Certain at least it is that a “man obtaining his locus standi, and his opportunity for making such arrangements, by the position he occupies as a partner, is bound by his obligation to his copartners in such dealings not to separate his interest from theirs, but, if he acquires any benefit, to communicate it to them.”

Conduct subject to that reproach does not receive from equity a healing benediction.

Perhaps in common usage to be found a clue is: "They are not without their force if conduct is to be judged by the common standards of competitors."  Indeed, see one can from classic statement of the law this is that even when not in Yoda-speak, Judge Cardozo only one verb-positioning away was:

Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned toImages2 undermine the rule of undivided loyalty by the “disintegrating erosion” of particular exceptions.

Speaking of which, is it just me, or was Justice Cardozo reincarnated as Conan O'Brien?

Posted by Jeff Lipshaw on June 13, 2008 at 12:21 PM in Odd World | Permalink | Comments (4) | TrackBack

Munaf's Mixed Bag: FARRA, the Rule of Non-Inquiry, and the Significance of Belbacha

So, I had been holding off writing about the "other" major Supreme Court decision yesterday in Munaf v. Geren, both because Boumediene understandably came first, and because there are layers of nuance to Munaf (even though it's unanimous) that aren't shared by the much longer, much more divided decision in the Guantanamo cases...

Ultimately, I think Munaf is a bit of a mixed bag. The jurisdictional analysis strikes me as somewhat superficial, though ultimately reaching the correct result. As I've explained elsewhere, I think it is difficult to distinguish Hirota on citizenship grounds (even though that's one of the Chief Justice's two bases for distinction); and I also think it's largely indistinguishable on the chain-of-command argument (unless one really thinks General MacArthur was not answerable to his superiors, an ironic conclusion given the classic charge against the IMTFE that it was more an American institution than a truly international one). But an amicus brief I co-authored set out the doctrinal argument for how Hirota might otherwise be sidestepped, and whether they relied upon it or not, the Court certainly seemed to reach the same conclusion.

The more interesting--and more complicated--part of Munaf has to do with the Court's odd decision(s) on the merits of the two cases, odd both because of its substance, which I'll discuss below the fold, and because the Court didn't even need to reach the merits--Omar came up on a preliminary injunction; Munaf came up from lower courts that dismissed for lack of jurisdiction without reaching the merits... But, reach the merits the majority did, and so the question is, what are we to make of its conclusion that neither petitioner has stated a viable claim?

The answer is trickier than it looks. Consider the cogent comments of Deborah Pearlstein:

The detainees' key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The court concludes that this claim is "of concern," but that it is primarily up to Congress and the executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the court decides it is in no position to challenge that determination

Souter, Ginsburg, and Breyer concur separately in an attempt to limit the scope of the decision—emphasizing that the court is reserving judgment on whether the outcome would be the same in the "extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway." But given the briefing the court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it's a little hard to imagine just what kind of exceptional circumstances they have in mind.

Deborah is right, of course, that the majority used fairly unconvincing language to explain why this is a matter "of concern," but nevertheless not one that is judicially cognizable (under what's usually referred to as the "rule of non-inquiry"). But there's another passage from the Chief Justice's opinion that I found striking. I won't quote it in full here (it's quite long), but it's the spillover passage on pages 25 and 26, along with all of footnote 6.

The gist of the Chief's point in this passage is that the petitioners might have a claim under the "FARR" (Foreign Affairs Reform and Restructuring) Act, but that they had failed to properly raise it below. (FARRA, enacted in 1998, implements the United States' obligations under the UN Convention Against Torture and Other Forms of Cruel, Inhuman, and Degrading Treatment, or "CAT".) [For a short discussion in the context of immigration law, see this old comment of mine, especially pp. 2009-10.] The Chief Justice's footnote raises the two major questions about whether the petitioners would have claims under FARRA, but the Court clearly reserves its answer thereto.

Which brings me to the D.C. Circuit's March decision in Belbacha v. Bush. The court remanded to the district court a FARRA claim by a Guantanamo detainee seeking to enjoin his transfer to Algeria on the ground that he credibly fears being tortured if transferred. Belbacha, then, is the merits issue that Munaf left undecided. Can an individual held as a non-immigration detainee use FARRA, and its implementation of Article 3 of CAT, to prevent his transfer either (a) to another country, as in Belbacha; or (b) from U.S. to Iraqi custody while in Iraq, as in Omar and Munaf?

The answer may ultimately be no (see, for example, this Fourth Circuit decision from last year, holding that FARRA isn't enforceable outside of the immigration context). It may ultimately be yes (which I think it is). The critical point for me, though, is that whatever the answer is, it does not follow from the Supreme Court's decision yesterday in Munaf.

Posted by Steve Vladeck on June 13, 2008 at 11:15 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Fourth Annual Conglomerate Junior Scholars Workshop

The folks over at the Glom are hosting their fourth annual Conglomerate Junior Scholars Workshop for untenured law professors or candidates entering the law teaching market this fall. The submission deadline for completed papers is June 30, 2008.  Here's some additional info from Christine Hurt:

The Conglomerate has now hosted this workshop for the past three summers, and we have come to believe that the workshop provides a great service of matching junior authors with more senior experts in their field and also with other readers inside and outside of the academy.

The Junior Scholars Workshop will be live online around July 28, 2008, with allowance for the schedules of our commentators. We will host one or two papers each week, with the paper and solicited comments posted the morning the paper is showcased. We anticipate hosting no more than five papers to ensure reader participation and attention for the duration of the workshop.

The workshop is a terrific opportunity for junior scholars to get detailed feedback from experienced commentators.  It's a lot of work, and Christine and her fellow bloggers are to be commended for the time, energy, and insight they put into it.

Let Christine know if you'd like to present a paper or serve as a commentator.

Posted by Matt Bodie on June 13, 2008 at 09:01 AM in Blogging, Corporate | Permalink | Comments (0) | TrackBack

Thursday, June 12, 2008

The Court Limits the "Class of One"

Monday's Supreme Court decision in Enquist v. Oregon Dept of Agriculture appears to be on its way to being overshadowed, at least in terms of blogosphere commentary, by today's decision in Boumediene.   (One notable exception is Deborah Hellman's post on Balkinization.)  But the case deserves at least a little commentary, as it raises a couple of important issues about equal protection and constitutional rights more generally.

In 2002 Ms. Enquist brought an equal protection claim after being fired from her state job.  In addition to alleging gender, race and national origin discrimination, she also alleged that she was fired for vindictive and malicious reasons, and thus suffered a violation of her equal protection rights under the "class of one" theory the Court embraced in the 2000 case of Olech v. Village of Willowbrook.  As it turned out, the jury rejected her more conventional equal protection claims, but ruled for her on the class of one claim.  The Ninth Circuit, going againt every other circuit to have decided the issue, reversed the jury's verdict, holding that class of one claims could not be brought in context of government employment. 

The Supreme Court, splitting 6-3 with Roberts writing for the conservatives plus Breyer, affirmed the dismissal.  In doing so he had to deal with Olech, a very short, cryptic opinion that appeared to open the door to equal protection claims anytime government imposed a burden on one person that it did not impose on other allegedly similarly-situated persons, even if the burden was not based on a particular basis such as race or gender.  (Here is my own brief read on Olech from last year.) How the Court did so raises some interesting questions about equal protection and the future of the class of one theory.

First, Roberts read Olech as resting on the existence of "a clear standard against which departures, even for a single plaintiff, could be readily assessed."  He explained that in Olech the government's insistence on extracing a 33-foot easement from the homeowner as a condition of putting in a utility hookup deviated from its usual insistence on only a 15-foot easement.  Thus, in Olech there was a clear standard -- a hookup requires a 15 foot easement -- from which the government deviated.  That clear standard gave the courts a hook upon which it could hang its investigation into whether government had a rational basis for the bigger demand on the Olechs.  According to Roberts, such a hook was missing in Enquist -- and indeed, is missing in all employment cases, where decisions were based on what he called "individualized" and "subjective" assessments.  Such assessments, he said, included matters such as the employee's personality and her the quality of her working relationships with her colleagues.  Employment decisions, by turning on factors unique to the burdened party, simply did not fit conventional equal protection review.

So far so reasonable.  But then Roberts throws in an example that seems not quite apposite.  He hypothesizes a traffic cop posted on a highway where a lot of drivers speed.  Clearly, he says, if the cop chose who to ticket based on, say, race, then the ticketed motorist would have an equal protection claim.  But he also notes -- again quite reasonably -- that a decision to ticket based on no discernible or articulable reason would not give rise to an equal protection claim.

This example doesn't seem relevant to Ms. Enquist's claim.  She's claiming that she was terminated, not because someone had to be terminated and she just happened to be the unlucky person (facts that would in fact parallel the traffic cop hypo), but because her supervisor had long had it in for her.  And the jury agreed that she had been the victim of a malicious, vindictive termination.

The Court's reasoning matters, it seems to me, because the path it took does more than shut the door not just on equal protection claims based on irrational government decisionmaking (such as where, given the individualized or subjective nature of the decision, the cop or the employer can't explain why it chose A for the burden rather than B, or can't give a rational explanation).  It also cuts off claims, like Ms. Enquist's, grounded on allegations that government acted because of animus, which I'll shorthand as simple dislike of the person untethered to any justifications that government should be allowed to offer for harming people.  It seems to me, at least intuitively, that the guarantee of equal protection should extend to cases where government brings down its hammer on someone because a bureaucrat or law enforcement officer simply wants to hurt him.  I've touched on this before in a general discusion of equal protection and discussed it in more detail in the context of Olech.  In addition to prohibiting certain classifications, it seems that equal protection ought also to prohibit the ultimate singling out, the placing of an individual in a class of one, at least when there is simply no other remotely plausible explanation for the decision.  (I would suggest this level of deference to the government because of the obvious fact that government singles people out all the time, and a would-be plaintiff should therefore be held to a high burden in order to succeed on an equal protection claim.)

This post is already way too long, so I'll close.  There's more to the opinion -- in particular the importance of the fact that it was a workplace case -- that I will discuss in future posts.  I will also speculate about the practical impact of Enquist.  But for now I would be curious if my reading of the equal protection analysis strikes other people as plausible or simply too foreign to the clause's traditional concern with characteristic-based classification as to be plausible under modern doctrine. 

Posted by Bill Araiza on June 12, 2008 at 08:47 PM | Permalink | Comments (0) | TrackBack

Is It "Green" to be Anti-Immigration?

The first section of Wednesday’s New York Times included a half-page advertisement, sponsored by America’s Leadership Team for Long Range Population-Immigration-Resource Planning (and also supported by the American Immigration Control Foundation, Californians for Population Stabilization, the Federation for American Immigration Reform, NumbersUSA, and the Social Contract Press), arguing for stricter immigration controls in order to prevent “further degradation of American’s natural treasures.” The advert shows a picture of a bulldozer with the caption “One of America’s Best Selling Vehicles.” A paragraph then follows connecting immigration to environmental plunder:

Bulldozer sales in American have been booming. Road builders need them to level rolling hills into concrete interchanges and bypasses. Developers need them to turn farmland into housing developments and shopping malls. You can find big earthmoving equipment throughout America, turning our most picturesque land into suburban sprawl, while adding to some of the worst traffic problems in the world. But traffic is just one of the problems facing America as a result of poulation [sic] growth wildly out of control. Schools and emergency rooms are bursting at the seams, and the public infrastructure is under great stress. Property taxes are on the rise. Yet the bulldozers keep on coming, ripping up some of the most beautiful farms and forests in the world and turning them into concrete and asphalt suburbs. But with U.S. census projections indicating our population will explode from 300 million today to 400 million in thirty years and 600 million before 2100, bulldozer sales should keep on booming. Unless we take action today. The Pew Hispanic Research Center projects 82% of the country’s massive population increase, between 2005 and 2050, will result from immigration. And with every new U.S. resident, whether from births or immigration, comes further degradation of America’s natural treasures. There’s not much we can do to reclaim the hundreds of millions of acres already destroyed. But we can do something about what’s left. Visit our websites to find out how you can help.

My first reaction was that this was obvious and spurious political greenwashing. A little Internet snooping, however, revealed that questions about the impact of immigration on the environment have generated some relatively serious debate, as evidenced by an internal struggle in the Sierra Club over whether to adopt immigration reform as a platform (Wikipedia’s Sierra Club entry has a concise summary under “Immigration controversy”).

Recognizing that there are many claims relating to immigration and the environment (changes in consumption, availability of water resources, etc.), I’d like to focus on the advert’s contention that immigration is to blame for loss of land to development. With numerous caveats (I’m not an expert in land use (although I welcome more considered reactions from my colleagues who are) and I have not researched this issue beyond a bit of Internet and Westlaw surfing), I’ll offer two very preliminary reactions.

First, it seems to me that there are many more likely culprits than immigrant-fueled population growth with respect to loss of land to development, most obviously dysfunction in our environmental and land use policies. Eduardo Penalver has recently posted about how decentralization of land use authority encourages sprawl. Another source of dysfunction is the artificial division drawn between (primarily federal) environmental policy and (primarily local) land use control. Although it is widely recognized that land use decisions affect everything from species survival to air and water quality, with a few exceptions (the Coastal Zone Management Act, wetlands regulation under the Clean Water Act, some iterations of Sections 7 and 9 of the Endangered Species Act, etc.) the major federal environmental statutes do not directly regulate land use. More localities are becoming sophisticated about incorporating environmental considerations into land use decisions (supported in particular by the work of John Nolon at Pace University) and localities can sometimes use (federal, state or local) environmental impact review processes as roadblocks to damaging development. However, local land use planning to protect the environment in many cases remains limited by restrictive delegations of authority from state governments, a paucity of local resources, countervailing (non-environmental) values, and other factors.

Second, it may well be that there are lengthy and considered examinations of the claim that immigration is a significant contributor to land loss in the U.S. that my admittedly cursory and limited search missed. If so, that’s great (and please share them). If not, then I would encourage land-use scholars not to let political ticklishness dissuade them from addressing this claim head on. Undergirded as it is by the common sense notion that, all other things being equal, more people equals greater impact (indeed, population control – as distinct from immigration – is a frequently espoused environmental principle), this is precisely the kind of claim that could take hold even if ultimately disproved by more critical examination.

Posted by Katrina Kuh on June 12, 2008 at 07:24 PM | Permalink | Comments (0) | TrackBack

More Boumediene: What About Military Commissions?

This will be my second (and last) pointer to the OJ's Insta-Symposium on Boumediene, but I wanted to briefly flag my second post, on what the decision means for the military commissions currently underway and the eponymous Military Commissions Act of 2006.

Later tonight, I'll post my thoughts on Munaf, which (thankfully) relegates Hirota back into the historical ether from whence it came, while simultaneously taking an awfully stilted view of the rather serious possibility that a U.S. citizen might be tortured in Iraqi custody...

Posted by Steve Vladeck on June 12, 2008 at 06:28 PM in Blogging, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

A contemporary Antigone story?

Over in Michigan, there's a story developing about a father who was arrested for harboring a fugitive: his son.

It's a choice that no parent would want to make. Kelley Thomas' 23-year-old son, Kelly Carter, escaped from a Georgia jail in April and shortly thereafter allegedly showed up at his dad's doorstep on E. Lorado Avenue. Now, Thomas has been charged with harboring a felon. What's a parent to do? It's a difficult question, even to Genesee County Prosecutor David Leyton.

"The fact that he's the father was discussed by my staff, and we will take that into consideration as the case progresses," Leyton said. "It's hard to turn your back on your own flesh and blood." ... The Genesee County Sheriff's Department and the U.S. Marshals Service raided the house on May 30 and police say they found Carter hiding in the bottom cabinet of an armoire at his father's house. Thomas, 45, told police that he didn't know his son had escaped from jail. Their cases are still pending. Thomas could face four years in prison. Carter had been in the Treutlen County Jail in Soperten, Ga. for a probation violation for assault and cocaine sales.

This story, and the reader comments on it that follow,  raise the question of whether states should extend what Ethan, Jennifer Collins and I have called "family ties benefits" in the criminal justice system. (The newspaper article refers to  the law review article I wrote with Jennifer and Ethan, which will form  part of our  forthcoming book with Oxford on criminal justice and the family.) Some analysis after the jump.

As I mentioned to the reporter, at the time of our study, we saw about 18 states that give either sentencing discounts (4) or prosecutorial exemptions (14) to family members who harbor fugitives. In the article, we explain our reasons for thinking that such "freebies" are wrong-headed: primarily, they create more likelihood of Type II errors (where wrongdoers escape condign punishment), discriminate against those without family networks to offer refuge, and increase the likelihood of successful crime networks. That we think harboring fugitives is wrongful, even if parents do it for their children, of course, is consistent with relatively low sentences. Four years incarceration--what the father in this story faces--is pretty steep to my mind.

Of course, in this particular case, if the father can convincingly show that he didn't realize his son was a fugitive, then that should also be a basis for exculpation. It does seem a bit fishy, though, that the son was found hiding in the armoire of the father's house and that the father wouldn't know that his son had not completed his sentence. According to this story, "[t]he father, Kelley Thomas, allegedly told police he had heard a rumor that his son had escaped from jail but claimed he never asked him about it."

But those are facts for a jury to decide and there may be other circumstances at play here. Interesting case. And probably more frequently occurring than one would think. After all, families are often the ones criminals, like the rest of us, reach out to first.

Posted by Administrators on June 12, 2008 at 06:19 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (2) | TrackBack

Who's Afraid of Habeas Corpus?

This morning brings the long-awaited Supreme Court opinion on the availability of habeas corpus to the foreign detainees being held at Guantanamo Bay.  Though the result was probably predictable ever since the Court abruptly changed its mind and granted the case last year, it still tingles the senses to read a bold, liberty-affirming opinion from Justice Kennedy issued over the sharp (and, in one case, bombastic) dissents of four of his colleagues.

The opinions are dense--and like all the other war-on-terror opinions--will take years to fully digest.  For now, I want to broach one question raised by today's opinion:  if, as all the Justices seem to either agree or assume, the detainees are entitled to some sort of serious yet limited procedure to test their confinement, why all the posturing and screaming?  Put differently, why does the writ of habeas corpus scare the conservative Justices so much?

I'm curious what other people have to say, but my initial speculation is that answer is more cultural and political than legal.  It seems to me that, in ways that would have been hard to predict, the battle over the availability of the ancient writ has become the touchstone in a debate about who we are as a people and how we should respond to acts of unspeakable barbarity.

Many in the current administration took 9-11 as a signal that our traditional ways of dealing with security threats and criminal atrocities were insufficient for the complex threat posed by modern terrorism.   In the new post-9-11 era, our most basic institutional settlements, legal rules, and norms of behavior were back on the table, subject either to renegotiation or unilateral executive abandonment. Those who took the contrary view were labeled as naive and politically vilified. 

The major war-on-terror cases to have reached the Supreme Court have all raised different legal issues, but they have all shared a striking thematic similarity:  in each case, the Court has rejected the claim that the post-9-11 world is a legal tabula rasa.  Instead, the Court has consistently held that preexisting treaties, statutes, and Constitutional understandings continue to govern.

In that context, it is not surprising that the legal battles have increasingly focused on the availability of habeas corpus.  In no small measure, the question whether individuals detained as suspected terrorists may pursue relief through the ancient writ or must instead rely upon new streamlined procedures drawn up in the throws of the current criss has come to stand in for the broader question of whether we must fundamentally change who we are as a society to respond to the threat of terrorism.

While others might find it foolish, I find the Court's course in these cases noble.  Having said that, I totally understand why today's decision riles the blood of Justice Scalia (and embitters his less hotblooded colleagues on the right).  While legally the decision will probably have limited consequences, culturally and politically it is a stinging rebuke to the Bush Administration's view of the post-9-11 world.

Posted by amsiegel on June 12, 2008 at 03:41 PM in Constitutional thoughts, Current Affairs | Permalink | Comments (6) | TrackBack

Justice Kennedy as Yoda

I'll leave it to Steve and others to do the interpretation-and-translation heavy lifting of today's decision in Boumediene.  My question is, what to make of this sentence from Justice Kennedy's opinion:

Remote in time it may be; irrelevant to the present it is not.

Did the Justice run his draft though this Yoda-speak generator?

Posted by Rick Garnett on June 12, 2008 at 03:23 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Another Opinio Juris "Insta-Symposium," and My Contribution Thereto

Over at the OJ, there's another "Insta-Symposium" unfolding over today's somewhat important (ha!) decision in Boumediene. My own contribution thereto--on habeas corpus and error correction--is up here.

I also hope to have more to say later about the Iraqi cases, which were also decided today in a result I would never have predicted. But for now, must finish reading...

Posted by Steve Vladeck on June 12, 2008 at 02:24 PM in Blogging, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

An Exercise in Judgment

Further to Bill Henderson's comments on judgment (and the difficulties in teaching it), I went back to an article I wrote on the subject and pulled out the following hypothetical:

The company has two valuable and high-potential employees, Jack and Stephanie.  They are managing the critical launch of the company’s newest product, one upon which the future of the company rides.

An internal audit reveals that the two have been using Jack’s company credit card to purchase personal items that have no conceivable connection to the company (a new DVD recorder, for example).  The human resources manager confronts Jack, who admits that his personal finances had gotten out of control, that it was a bad mistake, but he was desperate, and at some point, intended to repay it. Jack says that he told Stephanie what he was doing, learned that she also was in bad financial straits, and lent the card to her.  Jack is terminated for cause immediately and escorted out of the building, and does not contest the termination.

The human resources manager then confronts Stephanie.  Stephanie first admits that she used the card, then claims later that she did not, and that Jack purchased the items for her, without her knowing the source of the funds.  Over the next two days, as the manager investigates the situation, Stephanie consults with a lawyer, who insists that the company does not have a basis for a termination with cause.  In order to get the matter behind him, the manager agrees that Stephanie will be allowed to sign a routine separation agreement and mutual release, and to receive two weeks’ severance pay, half of the amount to which she would have been entitled under the company policy.

Friends of Jack complain that concessions made to Stephanie are not right, and that there has been unfair and unequal treatment of the two: if Jack was terminated for cause, Stephanie should have been as well.

Was it either illegal or wrong for the manager to treat Jack and Stephanie differently?   I am more interested in the wrong than the illegal (as I cannot think of any reason why it would be). 

Note Bill Henderson's observation that "it is just damn hard to define judgment in a way that is objectively defensible."  Is objective evaluation of this judgment even possible?  If not, how do we evaluate it?  Respond to Jack's friends?

Posted by Jeff Lipshaw on June 12, 2008 at 02:10 PM in Workplace Law | Permalink | Comments (0) | TrackBack

Yahoo's "Unconscionable" Employee Severance Plan

The press continues to give Carl Icahn a big platform for his ongoing pronouncements about Yahoo.  Here, for example, Icahn claims that Yahoo shares are worth $34.75.  I'm not a negotiation expert, but it seems to me that putting out a public price will only weaken both Yahoo and Icahn in the negotiations.  You also have to love this Icahn quote: "Microsoft and Yahoo! are sort of a marriage made in heaven, even though they sort of hate each other.  Some marriages are good when they hate each other."  I've said this before, but I think the press should be a little more skeptical of Icahn's machinations, given how his Time Warner proxy battle ended up.  (This piece, at least, pokes a little fun.)

Icahn also expressed his outrage about the Yahoo employee severance plan that recently came to light. Calling the plan "unconscionable" and "reprehensible," Icahn said the plan was "a complete, total ... I don't want to use bad words ... a travesty. The very people Microsoft wants to keep, it will make it easier for them to leave."  Um, this may be news to Icahn, but the point of the plan is not to let Microsoft keep Yahoo employees -- it's to help Yahoo keep Yahoo employees in the face of a potential takeover.

I'm being a bit glib.  Icahn's view roughly correlates in tone, if not in volume, with the CW about the Yahoo plan.  The plan has been characterized as a just another creative poison pill that has nothing really to do with employees and everything to do with keeping out Microsoft.  Forbes has even deconstructed the Yahoo Q&A to employees about the plan, interspersing its own skeptical commentary.

Here's what's suspicious about the plan:

  • It was apparently adopted in response to the Microsoft offer.
  • It was apparently adopted in secret.
  • Yahoo's efforts to make it seem like a genuine, employee-oriented plan now look disingenuous.

However, I think beneath the cynicism there is potential for this plan and plans like it.  Other companies could use this plan as a starting point for more beneficial opportunities down the road.

Here is what is good about the plan:

  • It does address a genuine concern: employee retention in the face of a potential buyout.  In the case of Yahoo, there's a double whammy.  In most buyouts, employees fear that they might lose their jobs, and thus are more likely to jump to another company before the buyout takes place.  (And a buyout might end up not even happening.)  In Yahoo's case, however, if the employees actually keep their jobs, they will then be working for Microsoft.  (Known in some circles as "the Borg.")  So Yahoo might end up losing a bunch of employees who fear that a buyout might happen -- even if it never happens.
  • Thus, the plan is designed to protect employees against the possibility of a Microsoft buyout.  They will get severance if they lose their jobs or if their job responsibilities change.  This gives the employees more power -- they have some degree of control over whether they want to keep working or instead get a severance.  (It's almost akin to a "no-trade" clause in pro sports.)  Of course, this makes the plan more expensive for any buyer, but it's not gratuitous.  It's based on a legitimate employee concern: losing out post-merger by having to do a substantially different (and less desirable) job and not being able to get the severance package.
  • The plan applies to all employees.  Some have criticized this part of the plan as "nuts."  But I think it's a welcome signal that all of a company's employees have meaningful contributions to add.  Why shouldn't a company seek to retain all of its employees?  I think this plan is a welcome change from the notion that only top-level executives add value to a company.

I hope this plan is just a starting point for plans like this in the future.  There is an opportunity for employee-oriented companies (like Southwest and Budweiser, perhaps?) to create a plan like this that might be more genuinely oriented towards employee interests.  In addition, I think there's an opportunity for creative unions (such as SEIU) to seize on these plans as a win-win for employees, management, and long-term shareholders.

It will be interesting to see how pension funds such as CalPERS respond to the Yahoo severance plan.  I hope that instead of seeing it as an anti-shareholder scheme, they will focus on its positive attributes as a way of protecting their companies' "employee capital."  Hopefully there will be more to come on this.

Posted by Matt Bodie on June 12, 2008 at 01:30 PM in Corporate | Permalink | Comments (0) | TrackBack

Should Ronald Dworkin dislike foreign law just as much as Justice Scalia?

As the NY Times notes, the United States is an outlier when it comes to free speech. As I noted in an earlier post, we Yanks are weirdly out of step with most of the world on birthright citizenship (i.e., we have it, and most of other industrialized democracies don't). Of course, we are out of step with many European democracies on the exclusionary rule, administrative law (e.g., government in the sunshine, freedom-of-information, and other devices for lay participation in bureaucratic decision-making), class actions, civil jury trials, contingent fees, widespread use of plebiscites in local and state policy-making, and a host of other legal practices.

When a nation is such an oddball on so many issues, differing from other countries with a similar economic and democratic culture, then it is time to step back and take stock. Why are we such legal outliers?

One possibility is suggested by John Kingdon in his book, America the Unusual. Kingdon, a noted political scientist famous for his studies of the actual motives and incentives of members of Congress, provides a panoramic survey of U.S. political and legal culture, concluding that the citizenry of the United States is deeply anti-statist. This anti-statism springs, in turn, from an anti-elitism that European democracies do not share -- a distrust of the sorts of unelected policy-making experts that staff the permanent bureaucracy. Thus, American anti-statism is not necessarily libertarian hostility to redistribution of wealth: Americans are comfortable, for instance, with a tort system that is far more redistributive than European tort systems. Rather, the American attitude is that full-time bureaucratic specialists cannot be trusted with power.

Suppose that Kingdon is correct as a purely descriptive matter (and, by the way, Kingdon's position is not normative: He deplores Americans' knee-jerk anti-statism). If one is committed to a sort of Dworkinian theory of legal integrity in which particular legal decisions are integrated to "fit" as well as possible with pre-existing conventions, then does the desire to achieve such "fit" suggest that we weird Americans really ought to be suspicious of foreign law? There is, after all, a high probability that such law will be in tension with our long-held and widespread legal commitments to Kingdon-style anti-statism.

In other words, should Ronald Dworkin dislike foreign law just as much as Justice Scalia?

Posted by Rick Hills on June 12, 2008 at 09:05 AM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

More on Lawyers and Entrepreneurs

In comments to my last post about Bill Henderson and the ISBA small firm workshop, Hillel Levin and "PA" pose questions about what you can teach in a law school classroom.

"Law and entrepreneurship" is a nice place to explore what you can reduce to process capable of being replicated, much less taught.  Over at Conglomerate, it happens Gordon Smith reported in a few days ago from a conference in Madison entitled "Technology Entrepreneurship and Institutions," which University of Wisconsin INSITE Executive Director (and Professor) Anne Miner kicked off by asserting "there is no secret sauce" to entrepreneurship. 

This has macro and micro implications, and hers appears to concern the former.  Certainly the last two places I lived (Ann Arbor and Indianapolis) had the usual government plus industry plus university triads seeking to turn those communities into Silicon Valley-like hotbeds of entrepreneurial development.  Josh Lerner at MIT has commented on the foolishness of letting politics, rather than the merit of the business, dictate the disbursement of governmental or other seed money.  Entrepreneurial communities are clusters, and even if wanting it to be so could make it so, then you have to concentrate the effort in, say, Indianapolis, and not give into the desire of Fort Wayne, Evansville, Gary, and Muncie to get in on the gravy train. Wanting it to be so doesn't make it so, and Professor Miner's observation seems wise to me.  There is a lot of serendipity in the creation of new industrial centers, whether it's Silicon Valley in the 1980s, or Detroit at the turn of the 20th century.

My particular interest is in the micro view, particularly the exploration of my intuition that private law (versus other norms or the "rule of law") is not a particularly powerful force in entrepreneurship (as I observed in the thought piece Why the Law of Entrepreneurship Barely Matters).   Or to put it another way, not only is there no macro secret sauce, there's not much micro secret sauce either, at least for lawyers.

I've been intrigued by some empirical data on this subject, particularly that gathered by Professor Saras Sarasvathy at Virginia's Darden School about what she thinks might be the derivable and teachable micro secret sauce, at least for the entrepreneurs, and more follows the jump.

Professor Sarasvathy wrote a paper called "What Makes Entrepreneurs Entrepreneurial?" based on research she undertook with thirty successful entrepreneurs (their companies ranged from $30 million to $6.5 billion in sales), giving them each an identical seventeen-page business problem to solve. Her conclusion was that there was a teachable set of principles involved:

This set of principles, when put together, rested on a coherent logic that clearly established the existence of a distinct form of rationality that we have all long recognized intuitively as “entrepreneurial”. For reasons that will become clear in the next section, I have termed this type of rationality “effectual reasoning”.

* * *
The word “effectual” is the inverse of “causal”. In general, in MBA programs across the world, students are taught causal or predictive reasoning – in every functional area of business. Causal rationality begins with a pre-determined goal and a given set of means, and seeks to identify the optimal – fastest, cheapest, most efficient, etc. – alternative to achieve the given goal. The make-vs.-buy decision in production, or choosing the target market with the highest potential return in marketing, or picking a portfolio with the lowest risk in finance, or even hiring the best person for the job in human resources management, are all examples of problems of causal reasoning. A more interesting variation of causal reasoning involves the creation of additional alternatives to achieve the given goal. This form of creative causal reasoning is often used in strategic thinking.

Effectual reasoning, however, does not begin with a specific goal. Instead, it begins with a given set of means and allows goals to emerge contingently over time from the varied imagination and diverse aspirations of the founders and the people they interact with. While causal thinkers are like great generals seeking to conquer fertile lands (Genghis Khan conquering two thirds of the known world), effectual thinkers are like explorers setting out on voyages into uncharted waters (Columbus discovering the new world). It is important to point out though that the same person can use both causal and effectual reasoning at different times depending on what the circumstances call for. In fact, the best entrepreneurs are capable of
both and do use both modes well. But they prefer effectual reasoning over causal reasoning in the early stages of a new venture, and arguably, most entrepreneurs do not transition well into latter stages requiring more causal reasoning.

If what MBAs normally do is causal reasoning, then what lawyers do is causal reasoning par excellence.  This particular comparison struck home:    "While causal reasoning urges the exploitation of pre-existing knowledge and prediction, effectual reasoning stresses the leveraging of contingencies."  In short, the usual business lawyer's job is to use past circumstances to predict and minimize the risk in a contingent future; the entrepreneur views that very contingency as stock in trade.  Again, to plug a piece of my work:  Contingency and Contracts:  A Philosophy of Complex Business Transactions, 54 DePaul L. Rev. 1077 (2005).

What is intriguing about this theory is how it further divorces law from the creative process.  In the "Why...?" essay, I speculate that entrepreneurs simply have a different orientation to rule-following practice than lawyers.  Professor Sarasvathy is suggesting it's more than that:  causal and effectual reasoners aren't even processing the same data. 

Posted by Jeff Lipshaw on June 12, 2008 at 08:46 AM in Corporate | Permalink | Comments (2) | TrackBack

What’s wrong with a little censorship, eh?

As the front page of this morning's New York Times suggests, the Canadians are famously more tolerant of restrictions on speech -- in particular, regulation of “hate speech” -- than we Yankees. An American law prof, steeped in First Amendment doctrine, is tempted to react indignantly to such censorship. (For an example of Gene Volokh’s attacks on the Canadian Human Rights Commission’s burdens on free speech, see here and here).

But I suggest that we legal scholars ought to be grateful to our neighbors to the north. Whatever its merits as good policy, the Canadian experience with censorship provides a natural experiment that legal scholars ought to welcome as an opportunity to test some popular hypotheses concerning freedom of expression. (I confess that my tolerantly cosmopolitan attitude in this respect might influenced by the Canadian origins of my co-bloggers, Dan Markel and Paul Horwitz). In particular --

(1) To what extent has the Canadian experience confirmed or disconfirmed the “slippery slope” hypothesis popular in First Amendment doctrine and scholarship – i.e., the idea that officials (whether judicial, bureaucratic, or elected) will be unable to draw desirable lines between "good" and "bad" censorship?

(2) To what extent has the Canadian experience confirmed or disconfirmed the “chilling effect” – i.e., the idea that vague restrictions on speech will deter speakers from engaging in speech that is protected from those restrictions?

I do not have any answers to these questions: I hazard only a few ill-educated guesses on the questions above, in hopes of provoking some research tips or insights from others better informed than I. But just to provoke you across the jump, my tentative thought is that free speech is probably doing fine in Canada, despite the Canadian Supreme Court’s tolerance for censorship that would make most Americans blanch. If so, perhaps much of our First Amendment doctrine is based on an army of First Amendment scarecrows that, in reality, amount to little more a spooky parade of horribles in the law school classroom or judicial opinion.

But, first, here is a quick summary of Canada's experience with hate speech, recited to with the aim of showing how spectacularly Canadian doctrine differs from American doctrine concerning free expression.

Under section 13 of the Canadian Human Rights Act, S.C. 1976-1977, c. 33, "(1) [i]t is a discriminatory practice for a person … to communicate telephonically or to cause to be so communicated … by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination." Section 2 lists several prohibited grounds including religion, race, and national origin. Complaints are heard before a “human rights tribunal” – a specialized administrative body – that hears complaints referred by the “human rights commission.” The federal courts of Canada hear appeals from the tribunal’s decisions.

The Canadian Supreme Court has been famously willing to construe narrowly section 2 of the Canadian Charter of Rights and Freedoms so as to permit allow the Commission to enforce section 13 against persons who engage in speech that almost certainly would be protected in the united States by the First Amendment. In Canada v. Taylor [1990] 3 S.C.R. 892, for instance, the Court upheld a cease-and-desist order (as well as criminal contempt sanctions when the Party disregarded the order) against the Western Guard Party for spreading an anti-Semitic message via a recorded telephone message. Rejecting the American tendency to cabin restrictions on speech with allegedly clear categories like "fighting words," the Taylor Court freely admitted that the Commission's sanctions burdened freedom of expression but upheld the sanctions anyway, as a reasonably proportional method for "promoti[ng] equal opportunity unhindered by discriminatory practices based on, inter alia, race or religion."

By Americans’ standards, Taylor shows an extraordinarily casual attitude towards freedom of expression. The Taylor Court brushed aside worries about slippery slopes by quoting some dictionaries and concluding that “the phrase ‘hatred or contempt’ [is] sufficiently precise and narrow to limit its impact to those expressive activities which are repugnant to Parliament's objective of promoting equality and tolerance in society.” The Taylor Court also rejected any effort to qualify the scope of the statute by requiring proof of an intent to express contempt towards a group or even to infer a defense of truth. Thus, in theory, the reasoning of the Court would permit the Human Rights Tribunal to issue a cease-and-desist order against an accurate scholarly publication that recited accurate facts about a protected group (e.g., crime rate, poverty rate, etc) that had a likelihood of inducing others to feel contempt for that group, even if the intent of the author was innocent of any desire to induce such effects. Although Taylor was handed down in 1990, the Canadian AG’s recent brief defending the Human Rights Act seems to indicate that the decision remains good law in Canada. Download canadian_ag_brief_on_hate_speech_law.pdf

Why was Taylor so casual about protecting freedom of expression? Chief Justice Dickson quoted from one of his earlier opinions in which he declared that “hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged.” Of course, the persuasiveness of this declaration hinges on the definition of “hate speech,” which the Taylor Court managed to expand to encompass a potentially enormous range of speech. Taylor added an additional reason: “[T]he commitment of the international community to eradicate discrimination extends to the prohibition of the dissemination of ideas based on racial or religious superiority.”

From an American lawyer’s relatively libertarian normative point of view, Taylor is appalling. From the point of view of scholarly investigation, however, Taylor is delightful: It provides a near-perfect natural experiment by which to determine whether robust judicial protection is necessary to protect freedom of expression from chilling effects on slippery slopes. It has been eighteen years: What are the results of this experiment? Is it chilly on those slippery Canadian slopes?

Not being an expert on Canadian jurisprudence and politics, I do not know. But here are some exceedingly casual observations, offered to spark more informed discussion from others.

(1) The Canadian Human Rights Commission has slipped very far down the slope indeed. As Exhibit A, consider the Commission's investigation of MacLean's magazine for publishing an excerpt from Mark Steyn’s book, America Alone.

Steyn is a well-known American journalist whose chapter argued that the population of Islamic fundamentalists is growing rapidly in Europe and that such growth could pose a threat to freedom of expression and religious belief in Europe, because the demographic group places a lower value on liberal principles than non-fundamentalists. Steyn’s week-long hearing before the Human Rights Tribunal began on June 4th. Although no ruling has yet been handed down to my knowledge, some onlookers are already outraged by the process.

(2) The Canadian political elite has not slipped down the slope much at all. The Steyn investigation has inspired outrage not only from Americans like Gene Volokh but also the mainstream Canadian press and prominent politicians (see here and here ). It seems probable that, were the Commission to sanction Steyn, its jurisdiction would be curtailed by the Court or the legislature or both.

(3) Has there been a lot of “chilling” on these variably slippery slopes? It is unlikely that any substantial publisher would be frightened of the Human Rights Tribunal, simply because the sanctions available under sections 53 and 54 of the Human Rights Act are so trivial: The Tribunal can issue cease-and-desist orders, fines of up to $10,000 for willful violations, and compensation of up to $20,000. The Act does not give the prevailing respondent any legal fees, and at least one target of the Commission's investigations has claimed he incurred $100,000 in attorneys fees fighting the Commission.

But it is hard to believe that any substantial publisher (e.g., a university, a newspaper, a major publishing house) would be “chilled” by 100k in attorneys’ fees into caving to an unjust cease-and-desist order. Indeed, Taylor took the nature of these sanctions into account when upholding the law, contrasting them with criminal sanctions that would be more confined by the Canadian Charter of Rights and Freedoms.

In short, my guess – it is only the most casual of guesses – is that freedom of expression is doing just fine up north, despite the indifference of Canada’s formal constitutional law doctrine to issues of critical importance to American law. I doubt that any speaker with any minimally serious academic or journalistic heft has been “chilled” by the Commission’s admittedly goofy bureaucratic shenanigans. Moreover, I doubt that the political elites will allow the Commission to burden any speech that elite opinion deems to be within the pale of ordinary journalism or academic practice. Assuming arguendo that some petty Robespierres staffing the HRT dearly wish to prosecute and intimidate conservative speakers, Conservative MPs and the press more generally would not let them get away with it. (Incidentally, it seems likely that any fines imposed by the Tribunal on Steyn will be dwarfed by the value of the free publicity and resulting book sales that Steyn will win as a result of the hearing: The tribunal’s jurisdiction does not extend to print media, leaving the profit from paper communication unaffected by its ruling).

This is not to say that marginal speakers have not been deterred. The proverbial street corner ranter; the pamphleteer with cranky, angry screeds about immigrants, the radio shock jock; even the priest who delivers an anti-gay sermon, all are liable for a cease-and-desist order – maybe even a few thousand dollars in fines -- if they use telecommunications to transmit their message. (For a list of investigations and prosecutions, see here ) But the Canadian who speaks with the usual Canadian circumspection and courtesy will, I’m guessing, escape unscathed from the Commission’s thought police.

In short, I am guessing – again, it just a guess – that the whole regulatory structure of the Tribunal/Commission does little more than force speakers to observe Canadian norms of politeness. Judging from the behavior of my Canadian friends like Dan Markel, these are pretty strict norms. (Take note, O invective-spouting commentator: if you want to get by Dan’s censorious hand and lambast my posts, you had better be subtle and Canadian about it).

But is it such a terrible thing that a society enforce strict norms of civility in speech if essentially no information or substantive argument is lost as a result? Shed for a moment, your Yankee libertarian prejudices and consider: Would the loss of (say) Don Imus’ vulgar radio patter be a terrible defeat for liberal society? Perhaps it would, under some theory similar to Robert Post’s that toleration of extremist speech helps validate the sense that democratic government is truly consensual. But I cannot help but think that such theories are ingenious but unverified – that they are compelling to us Yankees mostly as a result of our own culturally libertarian prejudices rather than solely because of the inherent force of the evidence and argument.

This is not to say that we Americans should adopt the Canadians' approach to freedom of expression: the success of that approach (assuming arguendo that it has been successful) is the result of an elite political culture that we might lack in here the States -- a political culture that guards freedom of expression (albeit of an elitist sort) much more effectively than any judicial doctrine. I say only that, if one were to ask me to provide a powerfully persuasive account that the Canadians have got the balance between civility and free expression wrong, I’d have to confess: I’d be at a loss for words.

Posted by Rick Hills on June 12, 2008 at 07:08 AM in Constitutional thoughts | Permalink | Comments (16) | TrackBack

Summer Reading Recommendation - Alan Furst's The Spies of Warsaw

I still run out and buy the new John LeCarre as soon as it hits the bookstores, even though nothing he has written since the end of the Cold War has measured up to the George Smiley era.  Tinker, Tailor, Soldier, Spy may be my all-time favorite book, and Smiley's People isn't far behind.  He just was a lot better when his target was intelligence agencies, and not the vast global corporate conspiracy.  I'm hoping that the rise of Russian nationalism under Putin will inspire one last great spy novel from him.  (I tried to send him an e-mail suggesting that, but his website didn't have a working contact link.)

Spies_of_warsaw_2 In the meantime, my "pre-order" author is Alan Furst, who has written a series of ten novels, beginning with Night Soldiers, all of which are set between 1933 and 1945 in Europe, and all of which involve a hero in the secret world.  There is a formula going on here, but it is very, very well done.  One recurring motif is that something always happens in his "Brasserie Heininger" in Paris, which is modeled on the real Bofinger near the Bastille (unmistakably described in the books, if you've been there).

The newest entrant in the series is The Spies of Warsaw, which I just finished.  If you like historical fiction, European cities, espionage stories, and a nice break from whatever else you're doing, I recommend it.

Posted by Jeff Lipshaw on June 12, 2008 at 07:07 AM in Books | Permalink | Comments (3) | TrackBack

Wednesday, June 11, 2008

The Nanny Classroom

Perhaps, as a resident of New York City, I’m particularly sensitive to nanny-ism characterizations in light of the nanny-label bludgeoning that our fearless Mayor (otherwise known as Nanny Bloomberg) has endured in the wake of NYC’s smoking ban, the Opportunity NYC program, and, most recently, mandatory restaurant calorie count displays and the transfat ban. (Side bar: The McDonald’s chocolate triple thick shake has 1160 calories??) But in reflecting on my first year of teaching, I’m struck by how frequently I found myself torn between nanny impulses (to institute class policies that force students to refrain from using the Internet during class, do the reading, participate in class discussion, etc.) and self-imposed nanny backlash (these are adult graduate students who should either already have self-discipline or develop it before entering the professional world).

Since all true dilemmas in law deserve a balancing test, here’s one to consider when contemplating a nanny-type classroom policy: The greater (1) the discrepancy between professorial and student knowledge regarding the benefits/harms of the behavior being contemplated for management and (2) the potential for those benefits/harms to accrue to other students, the more appropriate the implementation of a classroom policy to manage the behavior. The aggregate of factors one and two should then be weighed against the costs of enforcing the policy.

The first factor (discrepancy in knowledge) recognizes that as professors we sometimes have a much better understanding of why behaviors are good or bad for students. For example, with respect to class participation, we have the experience to know that even the student dedicated to a big firm corporate law career (and therefore sitting in the back row and justifying the failure to participate with the oft-heard rationalization of “I’ll never have to speak in court”) will be asked to give oral reports and analysis to colleagues and clients, run conference calls, and generally be capable of clear and calm public speaking. With respect to the second factor, we professors are also acutely aware that good class discussion helps all students; thus, failure to participate can negatively impact not only the non-participating student but also his or her peers.

With respect to the third factor (costs of enforcement), I mean not administrative costs (record keeping and the like) but costs in the sense of what the policy and its enforcement communicate about expectations and professionalism. In the context of class participation, cold calling (or some version thereof) can communicate an expectation of preparedness and professionalism. So even if the rationale for cold calling stems from a nanny impulse (it will be good for you to participate and do the reading and without cold calling you might not), it isn’t overtly “nanny” in tone and doesn’t subvert a professional atmosphere. A counter example with respect to enforcement is recreational use of the Internet during class. I have yet to discover a way to effectively enforce a policy against in-class Internet use that isn’t so heavy-handedly Nanny State as to undermine a professional atmosphere and potentially outweigh the benefits of preventing recreational Internet use. (Considered and rejected: trolling the classroom playing “I spy” for errant screens, having my assistant peep through a window at the back of the classroom to spot noncompliance, the “freeze, hands in the air” gotcha game, the Internet “jammer” (illegal), turning off the Internet all together (not an option at my school).) So next year what I may do instead is give up on enforcing a no-Internet policy and instead try to minimize factor one (by spending some time explaining to my students in detail why in-class, recreational Internet use is not in their best interest) and factor two (by enforcing a robust participation scheme to blunt the negative impact of Internet use on classroom discussion).

So here is the first tentative outing of a new prof’s “test” for when to intercede with classroom policies designed to make students do what we (think we) know is best for them. I’m off to Starbucks to grab a grande skim latte (130 calories) and avoid at all costs the apple fritter (490 calories).

Posted by Katrina Kuh on June 11, 2008 at 07:10 AM in Teaching Law | Permalink | Comments (12) | TrackBack

Henderson on Solo and Small Firm Practice

Over at Legal Profession Blog (my home base), Bill Henderson gives his impressions of the solo and small firm practice meeting of the Indiana State Bar Association.

Here's a sample of Bill's take on the relationship of law school education to the "touchstones" of small firm practice:

Indeed, with the large tilt in law schools toward professors with large law firm experience--and virtually all as associates rather than equity partners--it is likely that we law professors undervalue the importance of commonsense and practical judgment in building a successful career.  (How many of us could meet a payroll twice a month?  What a daunting prospect!) Law schools supposedly teach students how to think like a lawyer, but this often takes the form of an appellate lawyer who manipulates the law under a fixed set of facts--with the most proficient having a shot at becoming a law professor. But in my observation, this is a extremely truncated view of how lawyers add value to clients and ultimately earn a living.

As Larry Solum says, check it out!

Posted by Jeff Lipshaw on June 11, 2008 at 07:06 AM in Blogging | Permalink | Comments (3) | TrackBack

Tuesday, June 10, 2008

A darn good footnote

Care of one of my students, I was treated to this delight in In re Richard Willis King, 2006 WL 581256 (Bkrtcy. W.D. Tex.) (Order Denying Motion for Incomprehensibility):

The court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible.FN1

FN1 Or, in the words of the competition judge to Adam Sandler's title character in the movie, “Billy Madison,” after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

Posted by Ethan Leib on June 10, 2008 at 06:39 PM in Odd World | Permalink | Comments (4) | TrackBack

Oil Prices and Sprawl

Back in December, I wrote an op-ed for the Washington Post suggesting that rising oil prices might be having an impact on Americans' taste for exurban homes.  At the time, the data in support of this thesis was still very anecdotal.   In the six months since then, more data has been gathered, and it points in the direction one would expect.  The housing crisis, while severe, is not being experienced the same way by all homeowners.  Owners of homes near urban centers and accessible to public transit are finding that their homes are holding their values pretty well.  On the other hand, the largest declines in property values are being experienced in more far-flung developments, where the only way to get anything done is to hop into the car.

This makes good sense.  In the debate over sprawl, proponents of the status quo have argued that suburban development has delivered for American homeowners a lot of home for very little money.  Setting aside questions of taste and focusing on square footage, there's a great deal of truth to this. But when you factor in the cost of transportation, the issue becomes far more complex.  Housing that provides owners with no alternative to the private car is more expensive than it at first appears.  That cost remained largely out of view when gas was $1.50 per gallon, but with gas prices nearly tripling over the past five years, and threatening to continue to increase for the foreseeable future, that hidden cost has jumped out into the foreground.  (The average American family of four consumes roughly 1500 gallons of fuel per year, so, barring a shift to more fuel-efficient vehicles, every $1 rise in gas prices costs about $1500 per year, per family.)  The people at the Center for Neighborhood Technology have put together a great interactive map that allows you to compare the cost of housing in different parts of various metropolitan areas with the cost of housing+transportation.  The (predictable) consequence is that, when you factor in transportation, housing far from urban centers becomes much more expensive, and in many cases more expensive than housing in or near downtown.

In addition to causing people to sell (or to refuse to buy) housing in the exurbs, high gas prices are causing other behavioral changes as well.  People are driving less by reducing the number of trips they take (e.g., by combining their tasks into as few round trips as possible) or consuming less gasoline by switching to more fuel-efficient cars.  But (at the moment) gas prices are rising faster than car-makers can increase efficiency, and not everyone can afford to purchase a new car, so shifts in land use patterns promise to remain a vital coping strategy for cash-pressed families struggling with high gas prices.

This is interesting to me as a land-use teacher because it draws attention to a number of important questions.  Key among them is the cost of delegating our system of land-use regulation to local governments.  William Fischel's influential theory of local government behavior predicts that local governments in fragmented metropolitan areas will regulate for artificially low residential densities, both to exclude land uses that consume more in government services than they generate in property tax revenue and in order to capitalize within home values the value of certain local government services, such as good public schools.  Fischel recognizes that, given the incentives local governments face, fragmentation is likely to lead to increased sprawl.  (This predicted relationship between fragmentation and dispersion is by and large, though not universally, borne out by the empirical studies.  In the words of a 2006 memo by the Federal Reserve Bank of Boston, "research findings generally converge on the conclusion that fragmented government structure correlates with wider dispersion, i.e., more sprawl.")

Sprawl notwithstanding, Fischel defends fragmented government because of the savings he thinks are generated by competition among local governments.  Critics of (aspects of) Fischel's  theory, such as Lee Fennell, have pointed towards some of the pernicious social consequences of auctioning off certain  services (such as education) through suburban housing markets.  And many first-year property students have read the Mount Laurel line of cases, in which the New Jersey Supreme Court attempted to grapple with some of those consequences by requiring suburban governments to accept their "fair share" of low-income housing.  Transportation costs represent a neglected piece of this puzzle.  One of the downsides of dispersed, fragmented local government is heightened dependence on the private automobile to get from place to place.  As gas prices go up, so do the costs of that dependence.  Even if Fischel is right that fragmented local governments deliver certain services more efficiently than would a consolidated metropolitan government, in an environment in which rising gas prices exceed our ability to adapt by switching to more efficient automobiles, at some point the higher cost of moving people around within such a system will swamp out those benefits.  (The problem of climate change represents another cost of this auto-dependent system.  Thus, even if gas prices come down, or automakers come up with a cheap, electric car, we will have to grapple with the energy costs that fragmented local government encourages.)

Unless we are to consign lower-middle class Americans to a life on the sprawled out metropolitan fringe (or in tent cities), spending an increasing portion of their income to fuel their cars , we need to find ways to develop more affordable housing within the existing metropolitan footprint, where pedestrians, cyclists, and strap-hangers have a fighting chance.   Given the  incentives Fischel describes local governments as facing, it is unlikely that they will consent on their own to the provision of much low- and moderate-income housing within their borders.  The solution seems to be either the creation of legal doctrines, like Mt. Laurel, that impose obligations on local governments to consider the good of the region in their land-use decisions or the shifting of land-use decision-making authority to higher levels of government, either at the regional or state level.   (Of course, fights over schools are going to be a huge part of this.)  Each solution has its pluses and minuses, but I've already frittered away enough time this afternoon, so I will have to save that issue for a future post.

Posted by Eduardo Penalver on June 10, 2008 at 03:20 PM | Permalink | Comments (7) | TrackBack

Obscurity, the Golf Swing, and Wittgenstein's Poker - More Boring Commentary

I've been lurking with some interest behind Rick's post on obscure language and the extensive comments.  I have the power of the TypePad pen, so I'll offer up some thoughts, and try really hard not to be either obscure or boring.

I was thinking about one of the most popular unread books in recent history, Stephen Hawking's A Brief History of Time.  I know he was trying to explain quantum mechanics and string theory and the like to ordinary people, but I still got no more than the briefest glimpse even into what he was saying there.  Do you really understand the idea of "spin" in atomic sub-particles?  My scientist son just told me he understands it but can't explain it to me in ordinary language - he says it's a quantum property and "spin" is as close as you are going to get.  Knowing that it has something to do with angular momentum of the electron isn't helping me either.  On the other hand, I suspect neither most people nor I ever have to confront this in their daily lives, any more than they have to confront whether there is an objective reality, much less how Kant managed to derive it in the transcendental deduction.

But people do think about right and wrong.  And bear with me for a moment with a golf analogy.  There are thousands of words written on how to hit a golf ball.  Maybe even more words than have been written about right and wrong.  The funny thing is that the ONLY thing that really matters in a golf swing is having the club face square (i.e. perpendicular to the intended line of flight) when it strikes the ball.  How hard you hit it may affect how far it goes, but hitting it square means it will go straight, and without hook or slice spin.  All of the thousands of words, all the different techniques, in golf swing instruction circle back to finding a way to have the student, no matter how awful the swing, hit it square.

That and Wittgenstein's dictum "whereof one cannot speak, thereof one must be silent" are what struck me when I read commenter Matthew Cole's statement:  "What you'll find uniting basically all of the loose paradigm of "postmodernists" in political philosophy is that they argue that the normative claims about politics circulated by modernists are somehow contingent on a claim to absolute knowledge, when really all we have is contingent knowledge."  More on (moron?) this after the jump.

The dictum comes from the end of the Tractatus, early Wittgenstein, and is a statement of positivism.  Worrying about whether we have contingent or absolute knowledge is pointless, because there is no language in which to express what, for example, what a Kabbalahist means when she refers to God as "Ein Sof" (there is no end, something that actually means something to me, but it's shorthand for something else about which I cannot speak but which nevertheless seems true).  The famous "poker" exchange came much later, and it was provoked by a disagreement between Wittgenstein and Popper whether one could state any absolute moral imperatives.  (Popper response was yes, don't threaten visiting speakers with fireplace pokers.)

Despite Wittgenstein, we are not silent about what cannot be spoken.  Indeed, we are not silent about whether there are things about which we cannot speak.  No doubt Wittgenstein's frustration was the endless repetition of the same unresolvable issue.  Like a philosophical golf swing, the issue keeps coming back around to one thing:  can we know things, and particular what we ought to do, absolutely or not?  Everything else springs from that.  If absolutely, then how do we deal with reasonable disagreement?  If not, how can there be any standard at all?  (As in golf, the Wittgenstein answer is practice, practice, practice.)

Now unlike confronting sub-atomic particles, or even the objective reality of the physical universe, people, and not just philosophers, make moral choices every day, and even think about the process of making moral choices.  Most people either just swing the moral golf club and hope that the face will be square, or adopt one or two fundamentals (philosophical golf pros call those "swing heuristics").  Few people deal with, or want to deal with, the theory of the golf swing.  It's only fairly recently that religion dropped out of the intellectual tool box, and no golf pro worth his or her salt merely says "have faith in your swing."  Among the pros, there's a lexicon.  The lexicon is only a problem if you think knowing the lexicon has something to do with either with keeping the club face square in golf, or knowing the right thing to do in life. 

So I'm perfectly willing to concede superior knowledge to any physicist when it comes to understanding muons and quarks.  But I'm not willing to concede to Kant, Hume, Aristotle, Heidegger, Lacan, Derrida, Leiter, Buber, Rick Hills, Brian Leiter, or Dan Markel (well, maybe Dan) any greater insight than me into absolute or contingent knowledge or right and wrong.  Only the lexicon. 

Posted by Jeff Lipshaw on June 10, 2008 at 02:53 PM in Legal Theory | Permalink | Comments (12) | TrackBack

SSRN and Law Reviews -- A Follow Up

I posted the other day about the recent NYT article on SSRN and how it is or isn't changing legal scholarship.  There have been a number of interesting responses in the comments, and I thought I would post again here rather than joining the comments in the hopes of continuing what's been a very useful discussion (at least for me).

A number of people, including Larry Solum over at his blog, have pointed to the technical problems with SSRN, particularly with its search function.  These problems (lack of permanence, poor search function, etc) are a real problem for SSRN, but they hardly seems insurmountable.   If the only thing that keeps SSRN from supplanting law reviews is software issues, then either SSRN will have to upgrade, or some enterprising outfit will come along and come up with a more user-friendly platform.  Yahoo used to be the search engine of choice until Google came along and cleaned their clock.  If there's as much frustration with SSRN as there seems to be, there will be a lot of pressure on them to innovate.

The other point that Solum, Orin Kerr, and others have raised has to do with gatekeeping.  An article in a highly ranked journal signals to our supervisors (such as they are), colleagues, and other constituents that our article is important and worthy of citation, reward, and attention.  Of course, there's no reason that SSRN couldn't do that as well.  As Christian Turner very wisely points out, there are ways of making SSRN serve that function.  Borrowing from social networking sites like Digg.com, Turner argues that user reviews, coupled with an improved search function, could help a user find the seminal article in any particular field.  There's something to be said for that gatekeeping being done by our peers rather than by the much-maligned third-year law student.

Posted by Sam Kamin on June 10, 2008 at 02:43 PM | Permalink | Comments (7) | TrackBack

Textualists lose one at SCOTUS

Contrary to what some of you might think, I do not spend all of my blogging time here justifying my prejudices in philosophy and literature. This term has produced a bumper crop of criminal law cases raising deep or downright bizarre problems in construing federal statutes, about which I have posted (here and here). For those of you who like the drama of jousting Justices, Begay v. United States, handed down on April 19th, is the best of the lot.

Begay has all the elements of a classic textualist-versus-purposivist conflict that we have gradually come to expect from the Rehnquist and Roberts Courts: There’s an opinion by Breyer (for the majority) noting the absurdities of relying on the strict letter of the law, an opinion (concurring) by Scalia filled with cranky phrase-making (e.g., denouncing the purposivists’ “Scrabble-like approach” to statutory interpretation), and a truly goofy application of a federal criminal law resulting from textualism.

In the ongoing battle between Breyer and Scalia, Breyer chalks up a victory for the purposivist team. And this writer cannot help but think that Begay is one more data point supporting the theory that, when textualism really makes a difference in a particular case, it leads to a preposterous result – a sort of human sacrifice to the Grim God, Rechtsstaat – that even hardcore textualists have a hard time approving.

Begay involves the Armed Career Criminals Act (ACCA), 18 U.S.C. section 924(e)(1), which imposes a mandatory 15-year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior convictions for committing certain drug crimes or a violent felony. The ACCA defines a “violent felony” to be a felony that either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Section 924(e)(2)(B)(i), (ii).

Begay had a bad record of drunk driving in New Mexico – 12 DUIs, which repeat offenses qualified as felonies under New Mexico law. Begay also had illegally possessed a firearm, threatening his aunt with an unloaded rifle in order to extort money from her. (It did not work, by the way). Does he qualify for the 15-year minimum because drunk driving was a “violent felony”?

As a strictly clause-bound textual matter, drunk driving seems obviously to be a violent felony. DUI offenses intuitively involves just as much of a serious risk of physical injury as, say burglary: The body count on the highways, after all, numbers in the thousands. Accordingly, Justices Alito, Souter, and Thomas all dissented from Breyer’s majority opinion on this basis, declaring that “the Court's interpretation simply cannot be reconciled with the statutory text.”

The difficulty with this eminently sound textual position is that applying the ACCA to a drunk driver cannot easily be reconciled with any intelligible goal of the statute. If the point of punishing gun-toting felons is to keep weapons out of the hands of “career criminals” who are likely to misuse them, then one might as well impose the 15-year minimum on insider traders or graffiti artists as drunks. But if this goal of deterring gun offenses by the violent is not the point of ACCA, then the statute seems pointless. Why else single out crimes involving use of physical force, burglary, arson, crimes involving the use of explosives, or extortion, unless one was worried about gun possession by willfully violent offenders who deliberately waged war on the homes and persons of their fellow citizens? Surely, the predicate offenses triggering the "Armed Career Criminal Act" ought to have something to do with the risks associated with weapons.

Thus, Justice Breyer decided to apply a species of ejusdem generis to the residual clause, reasoning that the list of preceding crimes defined a principle limiting the general category of crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.” That principle, according to Breyer, required such crimes to involve “purposeful, violent, and aggressive conduct.” Negligent conduct like drunk driving did not present a serious risk of physical injury, because it did not involve any aggressive or purposefully violent behavior.

Justice Scalia concurred separately to protest what he took to be the re-writing of the statute with a “made-for-the-case improvisation.” Instead, Scalia urged that the Court stick with the “risk of physical harm” principle but spare Begay by invoking the principle of lenity: There just was not sufficient proof that drunk driving led to a “serious” risk of physical injury.

Did Justice Scalia, dean of textualists, blink? It is difficult to credit the notion that the body count from drunk driving is somehow smaller than the body count from botched burglaries. Moreover, this hardly seems like the rule-bound approach on which Scalia prides himself. Should the Court seek out statistical studies about whether vandalism, graffiti, the numbers racket, prostitution, gambling, and any number of other offenses are statistically associated with a higher rate of injury than burglary? Managers who illegally scrimp on worker safety at factories cause injuries. So do corporations that illegally store toxic waste at leaky landfills. Do they fall within ACCA?

One suspects that Scalia simply could not bring himself to make the necessary sacrifice to the Great Baal of Textualism. But he preferred to escape this sacrifice by invoking the squishy, ad hoc safety valve of lenity rather than admit that the spirit of the statute (as expressed in its ballot title and its apparent purpose) should triumph over the letter.

But what makes the principle of lenity more acceptable to a hardcore textualist than, say, reliance on a measure’s title or surmises about its general purpose? Lenity, after all, is hardly a well-defined limit on judicial discretion. When Scalia accuses the majority of a "made-for-the-case improvisation," is he projecting?

Textualism, in short, maybe in trouble at SCOTUS. And a good thing, too, I am inclined to think.

Posted by Rick Hills on June 10, 2008 at 08:52 AM | Permalink | Comments (12) | TrackBack

Monday, June 09, 2008

Unsolicited advice for new associate deans (Part 3)

As part of my own modest efforts toward destroying Prawfs Blawg through boring posts I present the third and final installment of my list of dos and don'ts for new associate deans (previously begun here and continued here).

9. Read up on procedural due process.  An administrator should know administrative law.  (In fact a fellow AD told me once that administrative law professors tend to be over-represented in AD ranks.  I wouldn't be surprised.)  As associate dean you'll have to make a lot of discretionary decisions.  There will also be times when you'll be confronted with a complaint about which you can do nothing.  In both cases you should always let the affected party speak.  What they say may well change your mind, but even more importantly I've come to learn that it can be quite therapeutic to let someone state their case even if he loses, and indeed, even if he knows there's nothing you can do to help him.  Injured people sometimes really do just want to talk about their hurt.  It's part of your job to listen and sympathize, even if you can't help them, and even if the problem is partly or even all of their own making.

10. Always have a box of tissues on hand.  People will cry in your office.  Trust me on this one.

11. Prepare for the worst. In my three years as AD we planned for massive exam software malfunctions, a shooter on campus, and a bird flu outbreak (we really did).  Luckily, none of these came to pass.  But you really don't want to bet on that.

12. Prepare to be disappointed.  We're all disappointed at points in our professional lives.  Students write crummy exams, co-authors let you down, etc.  It gets worse as associate dean.  It becomes your job to keep the trains running, a goal that very often conflicts with the interests of students and faculty, who have their individual agendas to pursue.  You will feel let down when your constituents, especially your colleagues on the faculty, pursue those "selfish" goals.  Moreover, since you were probably picked as associate dean in part because of your willingness to pick up more than your share of the faculty self-governance burden, you are probably the type to sacrifice more than most for the good of the school.   That characteristic will only heighten the sting you'll feel when your colleagues push their own interests.  Get over it.  A lot of the reason there is an AD position is to allow students and faculty the freedom and the resources to pursue their agendas.  Yes, you'll need to rein them in when their agendas conflict too greatly with the school's, but a basic part of your job is to figure out a way to say "yes." 

13. Enjoy it.  For a certain type of person associate deaning can be a really fabulous job.  I found it a wonderful change of pace from the normal academic life.  Enjoy it for what it can give you.  And look forward to going back into the faculty; if my own thus-far limited experience as a former AD is any guide, you will gain a new appreciation for what a great job law teaching is.

Posted by Bill Araiza on June 9, 2008 at 08:01 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Our new slogan

In light of Brian Leiter's recent pronouncement, we're amending our catchphrase at the top of the page, at least for the indefinite future. And in response to popular demand from our various constituencies, we've also created a new category for archiving future posts: why Brian is wrong or gratuitously nasty. For the sake of truth and decency, I hope it will be as close to a null set as possible :0)   

Posted by Administrators on June 9, 2008 at 06:48 PM in Blogging | Permalink | TrackBack

"Judicial Fiat" and Judicial Humility

Joining a blog early in June to comment on the Supreme Court's concluding term is usually a safe bet.  Certainly, last year, I had any number of subjects teed up to go.  As others have noted, however, thus far this has been a relatively slow and themeless Supreme Court term.

While I await the fireworks sure to come when the Court hands down its decisions on the Second Amendment, the rights of detainees, and the death penalty for child rape, I wanted to get in my two-cents on this year's latest installment of the Stevens-Scalia smackdown.  (I don't know about you, but every time I read one of Scalia's diatribes about Stevens's methodology, I hear a boxing promoter breathlessly intoning "This Time It's Personal!".)

The context this time was Justice Stevens's conclusion that--while he will continue to vote to apply the Court's precedents--he now believes that the death penalty is unconstitutional.  Justice Scalia was quick to respond, labelling Stevens's new position not only wrong but also fundamentally illegitimate.  At the conclusion of his unusually personal rejoinder, Justice Scalia commented "Purer expression cannot be found of the principle of rule by judicial fiat."

Now, the constitutionality of capital punishment is a hot-button issue on which I am not going to be able to influence a single soul.  So, I wouldn't even comment on the merits of the issue.  What I want to talk about is the accusation that Justice Stevens's position is a "pure[] expression . . .of the principle of rule by judicial fiat."  I think that accusation is ahistorical, factually incorrect, and theoretically flawed.  After the jump, I'll try and explain those claims and to defend the counter-intuitive claim that Justice Stevens's evolution on the death penalty is actually reflective not of judicial fiat, but of a profound judicial humility.

When Justice Stevens joined the Supreme Court in 1975, the great majority of the Court had reached the conclusion that the death penalty was, at a minimum, constitutionally suspect.   That conclusion was not arrived at on a whim but after several years of minute evaluation of the then-existing system of capital punishment.  The argument against the death penalty was fairly simple:  It was an archaic relic of an earlier age in which a sovereign's power over his subjects was absolute.  In a Kantian political universe that values the dignity and inherent worth of every human being, the burden is on those trying to justify such an extreme application of state violence.   And the existing arbitrary, standardless, racist, patchwork system made a mockery of those concerns.

The question that divided the Supreme Court when Justice Stevens joined the bench was not whether there are special constitutional concerns with the death penalty, but what to do about them.  There were some on the Court who believed that the State could not possibly carry its burden and justify the death penalty; there were other who thought that--despite their utter failure up to that point in time--the states ought to be given another chance to design a system for imposing death that was rational, even-handed, and limited to situations in which the state's interests were especially strong.

After much soul-searching, Justice Stevens cast his lot with the latter group, casting a crucial vote for allowing the popular branches another go at designing a death penalty that was consonant with the rule of law and the dignity of all individuals.  For thirty years, despite the mounting evidence that states were failing, he held to that commitment.  Indeed, at various points along the way, he spoke explicitly to state legislatures, explaining the procedures and limitations that might create such a workable system (for example, pointing out that both racial and geographic disparities tend to disappear when the death penalty is focused on the most heinous crimes).

Nevertheless, the evidence continued to mount that the experiment was a failure.  Outrageous racial disparities persisted.  Innocent people were sent to death row.  States failed to narrow the punishment to the worst of the worst.  The clamor for death distorted the jury pool so that the most skeptical elements of the community were excluded from even the guilt phase.  And, perhaps most tellingly, the states failed to marshal any significant evidence that the death penalty seriously advanced important state interests.

Thirty years ago, Justice Stevens sided with the humble Justices, preferring to give state legislatures every opportunity to develop a death penalty system that comports with our most basic constitutional values.  Their sincere hope--and here I emphasize "sincere"--was that states who wanted to maintain the death penalty would develop careful procedures for a leaner, more deliberative, more evenhanded system.  The Court would be a backstop, not the prime actor.   That the states failed to live up to their end of the bargain is their fault, not Justice Stevens's.

Posted by amsiegel on June 9, 2008 at 01:52 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (5) | TrackBack

Right-wing "Dworkinianism"

Mike Dorf has an interesting post about why right-wing "Dworkinianism" has never developed on the right.  Of course, as a commenter there suggests, if right-wing constitutional interpretation is equivalent to originalism, it isn't much of a mystery why right-wing "Dworkinianism" never got off the ground.  But the equivalence between originalism and conservatism doesn't seem necessary to me without argument (unless one has a very thin account of conservatism as traditionalism or somesuch) -- and so the question seems fair.

Dorf's "guilt by association" argument certainly seems plausible -- yet Amar and Balkin, both liberals, seemed able to get past "guilt by association" to embrace forms of originalism.  And, yet, the very idea of associating with Dworkin so scares all conservatives that they can't consider making "political morality" and "fit" arguments on their side of the aisle?  Something else must be at work also. 

It is also possible that the example of Barnett proves that the question has a false premise.  That is, there is a whiff that conservatives have found a way to smuggle political morality and fit arguments through the construction/interpretation divide: right-wing "Dworkinianism" happens through construction, not interpretation.  That still leaves some room for Dorf's query, though.  Perhaps the answer is, after all, a version of Tushnet's thesis that a conservative theory of legitimacy (whether a consent theory or some other meta-view about political legitimacy) simply doesn't allow for anything but originalism at the level of constitutional interpretation.  I think I've suggested something like this in The Perpetual Anxiety of Living Constitutionalism (i.e., that there is a deep connection between originalism and a view of political legitimacy).

UPDATE:  Check out Larry Solum's helpful contribution to the conversation here

Posted by Ethan Leib on June 9, 2008 at 01:15 PM in Blogging | Permalink | Comments (8) | TrackBack

The obscurity of intellectuals: An initial taxonomy

When I denounced the obscurity of intellectuals last week, several (perhaps justifiably) irate responders noted that I did not explain why I liked some obscure writers and disliked others:  I had no definition of permissible obscurity, beyond my own prejudices (and an admittedly unwholesome desire to tap on the glass just to watch the snakes jump).

There is something to that objection.   Why, I ask myself, do I like puzzling through some stuff that many find obscure (say, Quine’s arguments against the analytic-synthetic distinction), whereas even reading a book review by Judith Butler on Arendt’s Jewish Essays induces nausea (of the non-Sartrean variety)?   

My critics are right:  I ought to have something to say about the matter.

To make some amends, here’s an initial distinction between two types of obscurity, which I hereby dub “the technical abbreviation” and “the shibboleth.”  The first seems to me useful; the second, pernicious.  (By the way, I do not claim that this dichotomy is an exhaustive taxonomy of obscurity:  I’m leaving out three other varieties of obscurity, denoted by myself with appropriate obscurity as “foundational ineffability,” “exoteric self-protection,” and “parabolic  mimesis.”  Holding the copyright on all but the second term – Leo Strauss’s estate’s got that one – I’ll provide a definition of all them in a later post).

What follows is (1) how technical abbreviation differs from shibboleth; (2) why the former is good and the latter, evil; and (3) why I think that Judith Butler – or, at least, her epigoni  – tend to use the latter rather than the former.  (Okay, that last is just to provoke you across the “jump”:  I’ve really nothing more to say about Butler).

1)    The technical abbreviation is simply a term, phrase, proper noun, Greek letter, or other symbol  that substitutes for a complex but uncontroversially well-defined concept.    “Elrod v. Burns,” the “Euler–Lagrange equation,” pi, and “offsides” (as in soccer) are all examples of technical abbreviation (herein illustratively denoted “TA”).  Think of “TA” as a promissory note, a means to simplify conversation among the initiated by making bulky concepts more portable.

The critical point about promissory notes is that they must be redeemed on demand.  The person who presents the term must be able to obtain cold, hard, cash value (to use William James' term) --  that is, a clear account of the TA’s sense, reference, or use (take your choice) -- from the issuer.  Otherwise, the putative TA will suffer from inflation.  In a linguistic version of Gresham’s Law, the inflated term is thrown around promiscuously precisely because it does not have to be redeemed, while genuine TAs are carefully hoarded precisely because they have real value and are costly to deploy.  Eventually, the inflated term is declined as valueless by those to whom they are presented.   

As an example of a real TA, take J.L. Austin’s concept of “infelicities.”  The term stands for a complex idea – in brief (and this is just another, slightly longer TA), a misfired or abused performative.  Note that I just gave you three more promissory notes – misfirings, abuses, and performatives – in exchange for one.  That’s a lot of redeeming to do – but Austin redeems all of his promises admirably in Lecture II and III of “How to do Things with Words.”   (Read it yourself:  It’s summertime, after all.  Pp 12-38 of the 1975 edition).  In general, the Brits seem to be pretty good at redeeming their TAs.  (Perhaps it is because they invented central banking in 1694 and therefore know the value of a sound banknote).

When Tommy Crocker accuses me of rejecting all academic disciplines that deploy TAs – in his words, “[l]aw, philosophy, economics, psychoanalysis, literary theory” – he does me an injustice.  I specifically stated in my initial post that I was referring to obscurity deployed to secure social status by signaling membership in an elite.  TAs are not really obscure in any undesirable sense, so long as the issuer stands by with sufficient specie to redeem the note. 

2)   My initial post referred to a different use of obscure terms, what I dub (incidentally, hereby using a performative) the “shibboleth.”  Taking my cue from Judges 12:1-6, the shibboleth is any term deployed for the purpose of distinguishing insider from outsider.   The key aspect of the shibboleth is that its users refuse to redeem the note with anything except a further note.  All one gets from them is more pretentious verbiage, which is just more promises for future payment of real cash at a later date.  This is a sure sign that the term is functioning as a badge rather than as a medium of genuine intellectual exchange.

Note that a shibboleth can simultaneously function as a TA.  (“Shibboleth,” after all, is Hebrew for sheave of grain:  if you need grain in Israel, the term could come in handy).  The defining mark of a shibboleth is its user’s purpose:  The user does not want the term to  serve any function beyond identifying those people who ought to be (metaphorically speaking) killed like the Ephraimites crossing the Jordan.  Hence, the shibboleth cannot be redeemed (i.e., explained) without destroying its value as a shibboleth.

(3)  Do Judith Butler’s terms function as shibboleths?  I leave that for you, my forgiving audience (all three of you), to judge.  My only data point from the last blow-out was that, when Stuart Buck repeatedly asked for someone to clarify Butler’s prose, he got no response.  (One Matthew Cole actually ponied up in response to my post, by defining Butler’s concept of “performative” as essentially equivalent to Austin’s.  I’ll accept that check any day, redeemable at  J.L. Austin’s Bank of Lecture I).

Really, I do not care to debate further the merits of Butler’s prose.  I’m more interested in the more general point – which is whether there is a social class out there (call them “intellectuals,” call them “Herbert”: The choice of phonemes is a matter of indifference to me) who routinely deploy TAs as shibboleths.  This class tends to specialize in matters both speculative and abstract, delivering propositions that are hard to verify, ideologically loaded, and poisonous in their capacity to inspire vindictive quarrels. 

I do not like this unnamed class of people.  I believe that they impede genuine intellectual exchange with inflated terms of dubious redeemability.  I call their social practices “intellectualism” as a sort of analogue to “scientism,” meaning the deploying of scientific-sounding terms as a conversation-stopper.  I believe that certain currents of ideas from certain nameless European nations, have a greater tendency to promote shibboleths than others.  (Incidentally, these currents also generate some good TAs as well -- and the TAs can be converted into shibboleths, as I noted above).  Finally, I see a lot of these folks in the Village, where I work.

I admit that the credo above is nothing but a summary of my prejudices.  I might be a philistine – indeed, certainly am, about some matters.  But, I say, better a philistine than a phony.  And you can take both of those TAs to the bank.

Posted by Rick Hills on June 9, 2008 at 12:05 PM in Rick Hills | Permalink | Comments (35) | TrackBack

Brian says that I'm a LEADER!

... right here on his Law School Reports blog. 

Okay, I am only a leader in the rapidity with which I admit I'm wrong.  But that's a start:  Surely, better this title than stubborn tenacity in maintaining that one is right when one's not. 

By the way, Pam has a response  to my response  to her response to my initial post on the Riley case.  Very thoughtful, although I still tend to think that she under-estimates the unequivocal perniciousness of Alabama's centralized system of government.   But I could be wrong.  (Damn:  There I go again). 

In any case, after these very long posts, I think that the case has been submitted to the tribunal of the blogosphere.

Posted by Rick Hills on June 9, 2008 at 10:21 AM in Blogging | Permalink | Comments (1) | TrackBack

Foreclosure Blight

Last week, I posted to a story about a law making failure to mow the lawn a jailable offense.  Here's a story about a woman who was cited for watering the lawn of an abandoned house next door.   Both stories point towards the difficulty that abandoned and foreclosed homes are likely to present for the neighbors who remain, a problem that is only going to grow worse as the housing crisis deepens.

Posted by Eduardo Penalver on June 9, 2008 at 10:20 AM | Permalink | Comments (0) | TrackBack

Sunday, June 08, 2008


In tomorrow's New York Times, it is noted that SSRN allows academics to measure their relative popularity.  Just as newspapers track the day's most downloaded stories and Amazon.com lists book sale rankings, we're told, now academics have found a way to keep score.

It's actually a pretty decent synopsis of the SSRN phenomenon, noting that it takes away the power of gatekeepers, makes scholarship available to the masses and lets them decide what's worthy, etc.  It points out that sexy still sells, noting that an essay with an unspeakable title is the 11th most downloaded article on the site (sorta NSFW, unless you're an academic).

It's still not clear to me what SSRN means for the future of legal academics.  I used to think that it would  be the death of most law journals -- that people would essentially self-publish their work on SSRN and advertise it on their blogs instead of seeking law journal placement.  That doesn't necessarily seem to be happening though.  People will be sure to correct me if I'm wrong, but I don't think that the explosion of SSRN has caused most people to stop publishing in journals, at least not yet.  You post on SSRN before (often long, long before) your article sees print, but aren't most people still seeking placements for their articles in old-fashioned journals?   If so, why?  I understand that untenured faculty still need the stamp of approval that comes with law journal acceptance.  For those of us with tenure, though, what makes us continue to seek such acceptance?

Posted by Sam Kamin on June 8, 2008 at 10:39 PM | Permalink | Comments (8) | TrackBack

What is the Triple Crown of the Legal Academy?

Yesterday, while at Belmont Park counting down to Big Brown’s Big Disappointment, I pondered the significance of the Triple Crown and (of course) it’s relationship to the legal academy. Is there any formulation of accomplishments that amounts to a Triple Crown of the legal academy?

Some analysis of the Triple Crown is useful to help identify relevant selection criteria. The Triple Crown is clearly difficult to attain. According to the “Belmont Stakes Official Past Performance Program,” there have been only eleven Triple Crown winners in the 100-plus years that the three qualifying races have been in existence (or approximately one winner every ten years) and none since 1978.

Another defining element of the Triple Crown is Lady Luck. Winning doesn’t seem to provide a particularly meaningful metric of substantive greatness over time. The Triple Crown criteria are limited to outcome in three races between three-year-old thoroughbred horses. Although the tracks and distances remain the same, times are not compared. Thus, a blazing fast three-year-old who has one off day loses (even if that horse might go on to be otherwise undefeated and set track records around the world); a relatively slow three-year old that lucks into a weak crop of three-year-old competitors can win. A last key aspect of the Triple Crown is that it is focused on performance over an exceedingly narrow time frame – three races that take place in the span of approximately five weeks.

So, to boil down the above, any "Triple Crown of the Legal Academy" should be very hard to get, require a good dose of luck, depend upon notably stellar performance over a short period of time, and (of course) involve a triptych of sorts. Using this as a guide, here are some musings about possible Triple Crown criteria:

(1) Within the same year, publish the lead article in the Harvard or Yale Law Reviews, be cited by or argue before the Supreme Court, and … hmmm. This last criterion is a bit tougher. Have a lecture series named in your honor? Author the most widely used text in a subject?

(2) With an eye to echoing the tenure triptych, another option is to attempt to incorporate teaching and service (difficult). Simultaneously publish the lead article in the Harvard or Yale Law Reviews, serve as dean and be elected teacher of the year?

(3) Each year, ask three “experts” -- U.S. News (I’m sure there’s a public eager for a “Best Law Profs in America” issue), Brian Leiter, and a law dean selected at random -- to nominate a prof and require (blind) concurrence of result in any given year for there to be a winner.

Perhaps, however, it would be easier to work backward by combing through the bios of a few preeminent legal academicians (nominations welcome) to identify three unusual commonalities in their accomplishments. Would that I could claim to have stayed up all night doing the same; sadly, my commitment to this blog post falls short. Kind of like Big Brown.

Posted by Katrina Kuh on June 8, 2008 at 09:39 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

New book on statutory interpretation reviewed by Rick Pildes

Here, on Hasen's election law blog. If you are like me in that you are fascinated by what it means to follow a rule, then you'll likely enjoy a book about an enormous 19th century legal dispute over whether a whale is a "fish" within the meaning of an inspection statute. Sounds dull? Read the review.

Posted by Rick Hills on June 8, 2008 at 12:06 PM | Permalink | Comments (0) | TrackBack

Boston Globe on friendship & the law

Rebecca Tuhus-Dubrow has a lengthy article on friendship and law in today's ideas section of the Boston Globe.  It is fairly done and is a nice introduction to the subject.

Posted by Ethan Leib on June 8, 2008 at 10:58 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

Karl Llewellyn and the U.S. Supreme Court

Karl Llewellyn haunted the Supreme Court this term, when Ali v Federal Bureau of Prisons was handed down on January 22nd. The 5-4 decision, written by Thomas, with dissents by Kennedy and Breyer, has not been much noticed. The case involved the suit of a prisoner, Ali, to recover damages under the Federal Tort Claims Act for the Federal Bureau of Prison’s loss of his Quran, prayer rug, and sundries. The majority ruled against Ali on the ground that Ali’s claim fell within an exception to the FTCA’s waiver of immunity for “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any ... property by any officer of customs or excise or any other law enforcement officer.” 28 U.S.C. section 2680(c).

So far, so dull. But to those interested in legal reasoning, Legal Realism, and the idea of Dworkinian integrity in interpretation, the case is one of the most interesting ones handed down this term The dispute between Thomas and Kennedy became a real-life re-enactment of Llewellyn’s famous article (Download llewellyn_on_canons.pdf) on canons of statutory construction, with Kennedy supplying the “thrust” and Thomas, the “parry.”

The canon in question was ejusdem generis: Was the phrase “any other law enforcement officer” limited in some way by the preceding reference to officers performing revenue or customs duties? Thomas argued against the canonical limit, citing the breadth of the term “any”; Kennedy insisted on the canon, citing the need not to render unnecessary the references to “officer of customs or excise.” But behind the invocation of these textual proprieties, one could not help but notice that four out of the five justices who joined Thomas’s opinion generally like neither prisoners nor tort plaintiffs; and three out of four in Kennedy’s camp generally do.

Was the Court unselfconsciously treating us to a Legal Realist moment, in which (1) the Court passionately debated how to apply some dry Latinate legalism while (2) all the real work was done mostly offstage by the Justice’s ideological priors? I do not think so, for two reasons: Justice Ginsburg (who joined Thomas’s opinion) and Justice Kennedy (who wrote the dissent). I have no reason to believe that either have strong ideological priors about their chosen view on sovereign immunity. So these swing votes must have been moved by something about the canonical discussion – about which I will speculate following the “jump.”

Ejusdem generis is similar to a host of other rules (e.g., stare decisis, noscitur a sociis, rule against implied repeal, pari material, and so forth) that serve as ways by which to preserve as much of the pre-existing law as possible. As David Shapiro has observed in Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921 (1992) (and Tocqueville, long before, in chapter 16, 1 Democracy in America), lawyers are inherently conservative: They are historic preservationists, seeking legal coherence by minimizing disruption of the status quo.

Ali raised special problems for this conservative attitude writ small and large.

Writ small, there is a clause-specific problem: it is not easy to interpret the clause in question without rendering part of it mere surplusage. If one construes the catch-all clause -- “any other law enforcement officer” -- to refer only to officials acting as customs and excise enforcers, then it is hard to know what the clause adds to the specific reference to such officers. (Surely, stated Justice Thomas, even a DEA agent who enforced a customs law would be pro tanto a customs officer without the catch-all clause). If one construes it as broadly as the majority, then the preceding references to customs and excise officers is mere surplusage.

Writ large, there is the problem of normative baseline. Is that baseline immunity or waiver? One might say that the “normal” default condition is immunity: Absent the FTCA, after all, the traditional rule of immunity would hold sway, and the federal government could not be sued in tort. But the FTCA enacts a very broad waiver with 13 specific exceptions. One might say, therefore, that the “normal” condition really is waiver: Ordinary people now assume that, outside some islands of immunity, they can call their government to account when it destroys, confiscates, damages, loses, or steals their property.

I see no easy way to choose between these two normative baselines – but the choice determines how Shapiro’s principle of legal continuity should apply. “Which interpretation,” Shapiro’s legal conservative would ask, “does the least damage to the pre-existing fabric of the law?” In Ali, the answer depends on an irresolvably contested normative baseline about the law’s “normal” state.

Llewellyn might say that this always the case with the canons. The impossibility of Shapiro’s “preservationist” position -- which is, incidentally, akin to Ronald Dworkin’s principle of integrity – is that the mass of the law has no more “shape” than the mass of stars. Lawyers impose patterns – normative baselines – on this mass like astrologers impose constellations on the stars, but there is no way to judge whether one constellation is a “better fit” than any other.

I do not know whether Llewellyn (or his intellectual descendants, the Crits) are correct in this regard. I am sure only that Ali is a good vehicle for thinking about this perplexing problem – and I am teaching it next Spring in statutory interpretation.

Posted by Rick Hills on June 8, 2008 at 10:40 AM | Permalink | Comments (2) | TrackBack

Saturday, June 07, 2008

Franke on Loving and Friendship

Katherine Franke has just published Longing for Loving in the Fordham Law Review.  Here's the abstract:

Post-Lawrence efforts to secure marriage equality for same sex couples must be undertaken, at a minimum, in a way that is compatible with efforts to dislodge marriage from its normatively superior status as compared with other forms of human attachment, commitment and desire. Resisting the normative and epistemic frame that values non-marital forms of life in direct proportion to their similarity to marriage, we must unseat marriage as the measure of all things. To this end, I'll suggest a thought experiment: substituting friendship for marriage at the center of the social field in which human connection takes place. No longer the sun around which all other relationships and relations orbit, our investments in marriage and marriage's investments in us are likely to yield in such a way that we can imagine making the argument for same sex couples' right to marry while imagining and cultivating different longings than that for Loving.

I am broadly sympathetic to this agenda of de-centering marriage -- and some of my co-authored work (with Dan Markel and Jennifer Collins) and some of my current work (on dislodging marriage's centrality in relational contract theory and putting friendship in its place) are in general agreement with Franke's hopes in this piece.

However, in the course of her argument, Franke gratutiously attacks me -- for a position I do not hold.  She writes: "Some of the recent scholarship urging the legal regulation of friendship strikes me as radically wrongheaded. Unfortunately, this work indulges the misplaced view that, if something important is at stake, law should regulate it.  Other attempts to engage the relationship of friendship to law are more thoughtful."  I am cited as the "radically wrongheaded" one, though in a previous draft I was lumped together with person now cited as having the "more thoughtful" attempt, which was unacknowledged in the previous draft.  Here is how I responded to the original draft in February:

I understand people's visceral reaction to the very idea that the law should regulate and promote friendship.  But at least part of my claim in the first article . . . is that the law is already doing it without any sophistication or understanding of the concept of friendship; and it would be better if we acknowledged how much this is already happening -- and helped the law come to friendship in more sensitive ways.  The law is already there, in ways you want to deny to make your argument work.  It is, of course, available for us to try to immunize our private lives from the law completely (though even that is a choice that regulates friendship).  That didn't work out too well for women, actually, when the private sphere was deemed safe from the law.  Still, I perfectly well understand the urge to purify friendship and our private lives from the dirtiness of the law.  And I am attracted to your use of friendship in the Loving piece . . ..  But I remain of the view that if you like what friendship is and want to enjoy its quite central benefits to our identities and our social lives, it has to be supported through the institutions that control our lives; sociological evidence seems to bear out the claim that friendship isn't doing all that well when left to its own devices.  Whatever one's views of the merits, in any case, I don't think my argument emerges from the simple-minded idea that the law should try to promote or regulate all "important" things.  I devote pages and pages of the article to responding to this way of thinking about what I'm doing.  Certainly, Laura Rosenbury doesn't take that simple-minded view either.

I was disappointed that my comments seemed only to dislodge Laura's article from the category of the "radically wrongheaded" in the published draft.  But at least one of us was vindicated.

I used to believe that all publicity is good publicity.  In the world where my citation counts matter, this is just one more cite.  But I confess that because so much of my intellectual labor and identity as a scholar is bound up with my work on friendship, it is especially frustrating to have it mischaracterized by others.  The blog is one way to set the record straight efficiently.  You can, of course, read the work for yourself and make your own judgment about my radical wrongheadedness here, here, and here.

Posted by Ethan Leib on June 7, 2008 at 12:56 PM in Article Spotlight | Permalink | Comments (2) | TrackBack

Orwell & the Intellectuals

Richard Ford took issue with my generally low view of intellectuals over at Slate's blog. As usual, his is a thoughtful post, and I have no desire to rehearse all of his arguments. But in the course of his post, Ford takes issue with my characterization of Orwell as attacking the obscurity of intellectuals. In response to my statement about Orwell's denouncing "the obscurity of intellectuals' prose as a cloak for tyranny," Ford asks, ''But wasn't Orwell more concerned with the jargon of bureaucrats and politicians than of philosophers and literary critics? His closest modern analogue is not Martha Nussbaum on Judith Butler but rather Harry Frankfurt's On Bullshit."

I respond to this comment only because there is always value in reviving Orwell's writing, and Ford's comment (as well as one endorsement of Ford's post that accused me of "mangling Orwell") suggests the great extent to which Orwell's journalism has been forgotten.

Orwell stomped on a lot of toes: Of course, he disliked bureaucratese. But, especially during the "Popular Front" years of the 1930s, Orwell frequently directed his ire at the intelligentsia. He accused intellectuals of power worship, hostility towards ordinary social mores, and a penchant for ostracizing critics who rejected their ovine orthodoxies with sneers and boycotts. Much of this criticism was inspired by the intellectuals' lockstep support for Stalin even to the extent of temporizing about the Bukharin trials and the murder of Trotsky. But much of Orwell's anger was directed more generally at the intellectuals' desperate desire to distinguish themselves from the middle class -- a desire, Orwell believed, that led them to abandon common decency and common language.

The critical evidence supporting this statement is, of course, the second half of The Road to Wigan Pier, in which Orwell denounces everyone from sandal-wearing vegetarians to polysyllable-spewing Stalinists for discrediting the British Left in the eyes of the ordinary voter. But "Wigan Pier" is only the most famous example.

In describing Dickens' "discontent," Orwell noted that "the disappearance of it in the modern intelligentsia is a very sinister thing," further observing that "[t]he thing that frightens me the most about the modern intelligentsia is their inability to see that human society must be based on human decency, whatever the political and economic forms may be." (Letter to Humphrey House, 4/11/1940). His review of James Burnham's Managerial Revolution" decried intellectuals' "admiration... for the power, energy, and cruelty of the Nazi regime." In mocking Marxist literary critics, Orwell observed that "possessing a system which appears to explain everything, they never bother to discover what is going on inside other people's heads." (Review of Philip Henderson, "The Novel Today," 12/31/1936).

I could easily multiply the examples many times over: Orwell's attacks on intellectuals were so notorious that Alex Comfort began a response to one of Orwell's "London Letters" with the dig, "I see that Mr. Orwell is intellectual-hunting again." (Responses to "Pacifism and the War," 6/18/1942)

The theme of Orwell's attacks was that intellectuals strove so hard to distinguish themselves from ordinary people that they forgot ordinary virtues like honesty, fair play, and common speech. Orwell's blanket term for these virtues was "common decency," a phrase that recurs repeatedly in his journalism. "The common people, on the whole, are still living in the world of absolute good and evil from which intellectuals have long escaped," Orwell noted, further observing that phrases like "'don't hit a man when he's down' ... have never failed to draw a snigger from anyone of intellectual pretensions." In explaining his admiration for the conservative writer, Malcolm Muggeridge, Orwell noted that Muggeridge's patriotism was "the emotion of a middle class man" which, for all of its simplicity, was "a comelier thing than the shallow self-righteousness of the left-wing intelligentsia."

What does Orwell's famous hostility towards the intellectual class have to do with obscure language? Language was one way in which intellectuals cut themselves off from common decency. Contrary to Professor Ford's suggestion, the five examples of bad writing singled out in his classic 1946 essay Politics and the English Language were not written by politicians or bureaucrats: They were all written by private intellectuals of one sort of another -- an essay by Harold Laski, a letter to the Tribune, an essay on Psychology, a Communist Pamphlet, and an essay by one "Professor Lancelot Hogben." His special target was "pretentious words": He noted that hack academic writers were "haunted by the notion that Latin and Greek words are grander than Saxon ones," such that they coined new terms by "us[ing] a Latin or Greek root with the appropriate affix." (Users of the term "hegemony," take note).

This pretentiousness served a political function: It is easier to defend the indefensible in abstract and convoluted prose, because such words do not call up any vivid mental pictures that would shock the conscience. "A mass of Latin words fall upon the facts like soft snow, blurring the outlines and covering up all details," Orwell writes: "long words and exhausted idioms" are the perfect anesthetic for disturbing thoughts.

In short, Professor Ford is most definitely mistaken in assuming that Orwell aimed his attacks primarily at bureaucratic or political speech. But it is an easy mistake to make: Most people do not read much Orwell beyond "1984" and "Animal Farm." (As you might infer, I am addicted to the four volumes of Orwell's journalism: His fiction, by contrast, is usually contrived and awkward). That's why I respond at such length: I want to make a little effort to pique interest in his classic non-fiction -- The Road to Wigan Pier, Inside the Whale," and, of course, Politics and the English Language.

Incidentally, should we approve of Orwell's anti-intellectualism? It has its costs. Because Orwell tended to use the complex web of popular belief as the benchmark for "common decency," he tended to endorse prejudices embedded in that web. Orwell has rightly been accused by Daphne Patai (in an otherwise justly forgotten book, The Orwell Mystique) of being hostile to feminism, because feminism, after all, was in tension with ordinary social mores. It is certainly undeniable that Orwell was deeply homophobic. It is not that Orwell was unaware of these prejudices: He consciously donned them, as a sort of deliberate affront to the Bloomsbury/Left Book Club set.

But Orwell himself would say that the best way to reform popular prejudice is to use popular language. Feminism is not advanced by Professor Judith Butler's polysyllables: It is advanced by plain description of honor killings, wife beatings, rapes, or, less shocking, the put-downs and petty discriminations of day-to-day sexism. All of those terms of art derived from Lacan & Co. do not mobilize outrage -- "common decency" as Orwell would say -- but put it to sleep.

That last statement, by the way, counts as a dig that invites invective. Feel free, Gentle Reader, to lay into me. But, please -- if you can manage it -- use plain and vivid speech. (Humor would be nice, as well). You might even prepare yourself for the task by (re-)reading Politics and the English Language.

Posted by Rick Hills on June 7, 2008 at 07:33 AM | Permalink | Comments (11) | TrackBack

Friday, June 06, 2008

What Do You Do When It Just Seems Wrong?

If your field is anything like mine (Criminal Law, Criminal Procedure, Federal Courts, etc.) there are certain doctrines that you're compelled to teach that simply seem wrong.  I'm talking here not about a case or two that you disagree with, but an entire line of cases that frustrate you to teach.  They're doctrines that you can't explain to lay people; that the students rebel against; that you can't make an argument for with a straight face.

Some of these mistakes get remedied relatively quickly by courts while some of them persist for years.  For example, one of the embarrassments for many years in Criminal Law was the fact that sentencing judges were able  to consider conduct of which the defendant had not been convicted, even conduct of which the defendant was acquitted, when determining the  appropriate sentence.  The Supreme Court remedied this (more or less) in its decisions in Apprendi, Blakely, Booker, etc.; now it seems relatively obvious (to everyone but Justice Breyer, apparently) that such a practice was inherently unconstitutional.

In Criminal Procedure, one of the worst lines of decision that remains unremedied is  the doctrine represented by Smith v. Maryland and United States v. Miller. In those cases the Supreme Court held that a criminal defendant who has conveyed information to anyone for any purpose has lost an expectation of privacy in that material vis-a-vis the government.  These cases were decided more than 20 years ago and their continued viability makes less and less sense each year.  In a world where information dissemination is essentially omnipresent, the idea that you don't have an expectation of privacy in your bank records or the phone numbers you dial because you have shared that information with your bank or phone company flies in the face of common sense.

I've never known how to teach these doctrines.  I try very hard in class not to fall into the law professor cliche of telling the students how wrong the Supreme Court has gotten a particular case, but these doctrines definitely test my resolve.  So what do you do when you come across one of these blind spots in your field?  Do you identify it as such?  Do you using it as a teaching opportunity?  Do you just announce that you find a particular doctrine indefensible and move on?

Posted by Sam Kamin on June 6, 2008 at 10:56 PM | Permalink | Comments (4) | TrackBack