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Wednesday, December 31, 2008

So long, and best music of 2008?

Thanks to Dan and the gang for inviting me to guest in December.  It's been fun as always.

Before I go, I will, as I have in the past, solicit suggestions for cool music done in the past year.  I'm too old to even pretend to be hip anymore, so I rely on the advice of others.  My taste tends to run in the "alternative rock" genre, but tips of good music of any kind would be welcome, individual songs or CDs.

To start things off, here are five CDs that came out in 2008 that I enjoyed (in no particular order):

"Accelerate" -- REM

"The Cross-Eyed Rambler" -- Paul Heaton

"Just Us Kids" -- James McMurtry

"Distortion" -- The Magnetic Fields

"Dig, Lazurus, Dig!" -- Nick Cave & the Bad Seeds.

Happy New Year to all.

Posted by JosephSlater on December 31, 2008 at 03:11 PM | Permalink | Comments (6) | TrackBack

Is New Year's the greatest holiday?

I’ve never thought much about New Year’s as a holiday, and when I have, it’s mostly struck me as a second-tier holiday, closer to Labor Day than to Thanksgiving. (Nothing against Labor Day, but for most people, myself included, it’s pretty much just a day off in late summer, not a day with much special relevance of its own.) But as it approaches this year, I've been thinking that New Year’s (Eve and Day, jointly) might be the perfect holiday. Consider its virtues:

  1. In different ways, it encourages both socializing and introspection.
  2. As to its social/festive dimension, you are encouraged to share the day (or, at least, the eve) with others, but you can choose whom you want to spend it with.
  3. Immoderate eating and drinking are condoned (within reasonable bounds, of course), but there’s no set menu. If you’re not into turkey, pumpkin pie, candy corn, chocolate bunnies, latkes, eggnog, or whatever, no worries. (One might, however, detect a slight pro-Champagne bias vis-a-vis tippling at the particular moment of midnight, and perhaps more generally. I’m not a huge sparkling-wine person myself, but neither do I spurn it if offered, so I’m pretty much OK with this.) I guess teetotalers might consider the holiday to have an overall bias in favor of alcohol consumption, making strict abstinence a little socially uncomfortable. But again, you can decide who you’re spending the holiday with, so any such concern can be mitigated by your choice of evening companions.
  4. The holiday can also be an occasion for romance if that’s your preference (and if the option is available to you), but it doesn’t revolve around relationships. So it’s possible to skip out on partying in favor of a quiet evening at home, and also possible to go out and celebrate if you're unattached. Indeed, a festive holiday gathering might provide an opportunity to meet someone -- and not just a random person, but a friend of a friend, with whatever degree of quality-control that might indicate (though that might introduce its own issues, too)
  5. As to the holiday’s more reflective dimension, it encourages both looking back and looking forward: remembrance of past times and the dear departed (the theme of “Auld Lang Syne,” if I understand that song); self-assessment and contemplation of how to make yourself a better person; and hopefulness about what might be in the future. I’d say that message, or agenda, stands up pretty well against any other holiday’s, secular or spiritual. And of course, New Year’s is an ecumenical holiday, open to all.
  6. No gift exchanges, hence no gift-related stress and/or awkwardness.
  7. Football!

New Year’s seems almost ideal, subject to the important caveat that you need to avoid spending the day itself nursing an atomic hangover. Also, if you have small children (as I do), they won’t be sleeping in just because you were up late, and that’s a problem. Come to think of it, maybe “the end of Daylight Saving Time” is the perfect holiday ...

Happy New Year, everyone!

Posted by Michael Cahill on December 31, 2008 at 02:55 PM in Culture | Permalink | Comments (1) | TrackBack

Sobering Vacation Reads 1: Eric Schlosser's Reefer Madness

Greetings, Everyone; it's good to be back for yet another blogging stint.

I write this as I recover from my so-called vacation, which included being stranded in American and Canadian snowstorms for the better part of a week, missing connections, napping at airports and at motels reminiscent of a Coen Brothers movie, and sitting, in hostage-like setting, inside airplanes for hours with nothing to eat or drink as they de-ice. Life in San Francisco has not prepared me for such woes! But now, back in what Eddie Izzard refers to as "The Citeh", I'm happy to report that I had good books for company throughout these trying times.

One such book was Eric Schlosser's Reefer Madness: Sex, Drugs and Cheap Labor in the American Black Market (hardcover, 2003; paperback, 2004). Schlosser, author of the much better known Fast Food Nation, tackles three issues in this book: the growing and cultivation of marijuana, undocumented laborers in the Californian strawberry-picking industry, and an economic history of pornography. The book, while not unconcenrned with politics and morality, is mostly a critical examination of free market principles as applied to underground economies.

Schlosser starts with marijuana growers, providing a colorful description of what is, apparently, an inland American industry of staggering proportions. His interviews with growers, and with federal agents who spend their time tracking down vast (but well hidden) marijuana fields and in-home operations with heating lamps, expose a cat-and-mouse race culminating in prosecutions, and sometimes shockingly severe prison sentences.

The second part of the book reveals the practices of strawberry farmers, who acquire "partners" through the practice of sharecropping. Former pickers, invariably from Mexico, become "farmers" who come to find themselves deeply in debt, limited in every aspect of picking and selling their product, and facing all the legal risks transferred to them by the growers. Bringing into the mix abundant information about the special problems posed by the strawberry industry, but not forgetting the broader picture, Schlosser describes the interdependency of Californian and Mexican economies, and the variety of unsatisfactory solutions provided by policymakers, banks, and growers, to the problem of undocumented immigrants.

But Schlosser is probably at his best when he describes the rise, fall, and (brief) return of pornography king Reuben Sturman, who, as it turns out, ruled the American "empire of the obscene" for decades. It shows how dedicated tax investigators finally brought his empire to ground, ignoring the morality crusades fought by decades of FBI agents and state police forces, and focusing on tax evasion techniques. Schlosser's sophisticated account, detached and at the same time sympathetic to both sides, is a clever analysis of the emergence and workings of an industry which faces similar economic, moral and social issues as many legitimate enterprises do.

While the separate three essays are all masterful, Schlosser could have done a better job weaving them together in the book's final chapters. His introduction takes on Adam Smith's free market theories; however, he does not seem to advocate for intense regulation of illegal, or semi-legal, industries, but rather for "a few laws, strictly enforced". One theme that ties the first and third chapters together is the impact of criminalization on the prevalence and success of a market. Based on a variety of sources, and on lessons from other countries (citing, among many other sources, MacCoun and Reuter's excellent Drug War Heresies), Schlosser argues (perhaps not clearly enough) that decriminalization might lead to a brief rise in the popularity of drugs and/or porn, followed by a steady decline in their consumption. The second chapter poses a more complicated problem, to which Schlosser does not offer an express antidote. It does, however, draw attention to the impact of unrestrained markets, focusing on efficiency and profit as their sole dependent variable, on humane labor relations.

I enjoyed and appreciated Schlosser's discussion of criminalization of drugs and porn, which reminded me a lot of Troy Duster's classical work The Legislation of Morality, and of Elizabeth Comack's interesting discussuion of narcotics law in Canada. I'm sure, though, that some readers are much better versed than me in labor policy and might have some interesting take on the second part. In any case, if any of you still has a holiday journey ahead of them, you might consider taking this book with you. Me, I'm done with traveling for this winter; and, as Faith Petric says, "for me, the charm of traveling is fading, I confess."

Posted by Hadar Aviram on December 31, 2008 at 12:42 PM in Books | Permalink | Comments (0) | TrackBack

Other Carols

Michael's taxonomy of carols left out one important category: Chanukah Carols. Herewith, the Top 5 (as seen on a greeting card):

5) "Silent Night, Shmilent Night (You don't call, you don't write)"

4) Shlepping through a Winter Wonderland"

3) Oh Little Sale at Bloomingdale's"

2) "I'll Be Home for Chanukah (So Save Me Some Latkes)"

1) "What (Ungrateful) Child is This?"

Posted by Howard Wasserman on December 31, 2008 at 12:05 PM in Culture | Permalink | Comments (0) | TrackBack

Happy Hour at AALS: save the date for Thurs Jan 8th at 9ish (confirmed)

Some very exciting news: we will once again be hosting a happy hour with our friends from Concurring Opinions and the Empirical Legal Studies blog during the AALS conference in San Diego. Please mark your calendars for 9pm on Thursday January 8th. Place (now confirmed): The Marriott's Lobby Lounge.

Importantly, this year we will be joined in sponsorship by our very generous friends at Indiana University Maurer School of Law — Bloomington. The first couple hundred drinks will be thanks to them!

Posted by Administrators on December 31, 2008 at 11:58 AM in Blogging | Permalink | Comments (4) | TrackBack

Resolutions, Libations, and Rotations

It's the end of the year, and the onset of the new one. PrawfsBlawg had a good year: our visitor traffic is about 30-40% higher than it used to be in 2007. So we've got that going for us, which is nice.

And things are only getting better. I'm very pleased to say that Jay Wexler has agreed to stay on at Prawfs through June, enlightening us with his twisted and deviant notions. For the new month, some of our friends from December will be staying on, and we will be welcoming back our friends Hadar Aviram (Hastings) and Jonathan Simon (Berkeley Law, aka Boalt). We still have some places available for our Spring 2009 schedule for guest bloggers, so if you're a prawf (or about to be one), and you're interested, please let me know.

Last, if you'll be in San Diego next week, please resolve to mark your calendar for January 8th, Thursday at 9pm. Along with our friends from Concurring Opinions and Empirical Legal Studies Blog, we'll be meeting in the Lobby Lounge of the Marriott where the AALS conference will be. Arrive early enough and it's a good chance that you'll be able to take advantage of our extremely generous friends over at Indiana University Maurer School of Law -- Bloomington. They're buying the first couple hundred drinks. In fact, if I can get Bill Henderson and his friends there sufficiently liquored up, I might just sell this blog to them...at the right price.

Happy New Year everybody!

Posted by Administrators on December 31, 2008 at 11:05 AM in Blogging | Permalink | Comments (1) | TrackBack

Late to the Party, Again

So, regarding my recent post on fantasy law professor leagues, I was googling around yesterday to see if the idea had been taken up over at Gawker or the Times or whatever when I realized that Joseph Liu already came up with this joke/idea over at Concurring Opinions more than 3 years ago!  I guess I need to start doing "preemption checks" for blog posts now.  Next thing you know I'm going to find out they've already come up with my toothbrush of the month club idea!

Happy New Years!

Posted by Jay Wexler on December 31, 2008 at 08:51 AM in Jay Wexler | Permalink | Comments (0) | TrackBack

Can federalism be protected from Paul Krugman?

Paul Krugman has recently articulated one of my darkest fears -- that the recession might be used as a pretext to destroy federalism in infrastructure spending. (Okay, I concede that I have a few items higher up on my list of worries -- but, being a federalism nut, that worry about federalism's demise ranks abnormally high). According to Krugman, states' cutting back on spending during a recession indicates that they behave in economically inefficient ways. The solution he recommends is (among other things) "federal funding of state- and local-level infrastructure projects." He asks: "Why should investments in infrastructure, which will serve the nation for decades, be at the mercy of short-run fluctuations in local budgets?"

Krugman is surely correct that states cannot perform the function of economic stabilization: Pump priming is a national public good just as is national defense. So, of course, the feds ought to amp up their share of non-federal infrastructure spending during a recession. But Krugman seems to be making a more general point -- that, even in normal times, infrastructure ought to be heavily subsidized by the feds.

This strikes me as an economically and politically odd position. There is a vast theoretical and empirical literature suggesting that centralization of infrastructure that does not have significant interjurisdictional spillover effects is a recipe for inefficient over-spending. The reason, of course, is that the national budget is, from each individual congresspersons' point of view, a public good: Each congressperson can win credit from their constituents for cutting the ribbon on federally funded infrastructure without incurring proportionate blame for the resulting increase in taxation and/or deficits at the federal level. The result is "universalism" -- a norm of mutually voting for everyone else's pork in return for similar consideration for your own pork. The causes of universalistic back-scratching in Congress were outlined long ago in Barry Weingast, A rational choice perspective on congressional norms, 23 Am. Pol. Sci.Rev. 245 (1979). The theory has since been refined by economists (see, e.g., Benjamin Lockwood, Distributive Politics and the Costs of Centralization, Rev. Econ. Stud. 313 (2002)) and empirically confirmed by political scientists (see, e.g., Jonathan Rodden, Reviving Leviathan: Fiscal Federalism and the Growth of Government, 57 Int'l Org. 695-729 (2006)).

Krugman's a Nobel laureate: He surely knows this literature. So what is he thinking? Why would he urge normalizing a practice -- centralized infrastructure spending -- that could turn the United States into the notoriously over-paved Japan, where the LDP smothers the nation in concrete to buy political support for their corrupt machine? Why does he not even give a nod to the vast literature, familiar since the Musgraves' finance textbook, suggesting developmental spending ought to be decentralized?

Could it be that, in pressing a pro-spending ideology, Krugman strategically suppresses evidence and theory contrary to his agenda? If so, what a waste of a Nobel laureate's talent! We've got plenty of journalistic flacks on the NY Times' op-ed page: Wouldn't it be nice to have a pro lay out the arguments fairly?

Posted by Rick Hills on December 31, 2008 at 07:06 AM in Current Affairs | Permalink | Comments (5) | TrackBack

What on earth am I here for? Why, to bestow a token of appreciation for letting me sell The Purpose Driven Life in Aleppo, of course.

So, as I've blogged before, I don't always agree with Christopher Hitchens about the application of principles of charitable interpretation. But in two recent essays, Hitchens has persuaded me that Rick Warren, despite his ostensible virtues, is not the right person for the Inauguration, notwithstanding Paul's strong anti-anti-Warren post here.  The first reason, which is somewhat familiar, is Warren's anti-gay statements, put sharply into larger context by Frank Rich.  (I admired Rich's arch observation that "fighting AIDS is not a get out of homophobia free card.") But Hitchens, in his first Slate essay on the topic, pushes the let's-revisit-this-man's theology claim a bit further--so as to antagonize more than just gays and their supporters. With some evidence to underpin them, Hitchens asks the following questions about Warren's interior disturbances:

  • Will Warren be invited to the solemn ceremony of inauguration without being asked to repudiate what he has directly said to deny salvation to Jews?
  • Will he be giving a national invocation without disowning what his mentor said about civil rights and what his leading supporter says about Mormons?
  • Will the American people be prayed into the next administration, which will be confronted by a possible nuclear Iran and an already nuclear Pakistan, by a half-educated pulpit-pounder raised in the belief that the Armageddon solution is one to be anticipated with positive glee? 
I'm not overwhelmed by this set of questions. 

The first question would place a litmus test that would to my mind unduly intrude on Warren's liberty of conscience. If Warren's benediction is innocuous, it shouldn't much matter that he also holds unreasonable views of access to powers invisible. The second question reveals a guilt-by-association charge, which has, I think, proved itself to be an overplayed drama. Hitchen's third question seems to suggest that Warren's world-view could have some impact on Obama's foreign policy, but that's ... unlikely.  I don't think we've much basis for worry that Warren will exert influence on Susan Rice, Hillary Clinton, Rahm Emanuel, or the other advice-givers in or near the West Wing. 

The second essay by Hitchens, however, raises a more lacerating set of concerns than those posed by his religious views. They largely stem from things said during and after Warren's export business in eschatology to the Syrian dictator, Bashar al-Assad. Hitchens writes:

"Syria," [Warren] told his viewers back home by video, is "a moderate country, and the official government rule and position is to not allow extremism of any kind." This is a highly original way to describe a regime that is joined at the hip with the Iranian theocracy, that is the patron of Hezbollah in Lebanon, and that is the official and unabashed host of the fugitive Hamas leadership whose military wing directs massacre operations from Damascus itself. (One might also add that the Syrian Baath Party's veteran defense minister, Mustafa Tlas, published a book under his own name that accused Jews of using the blood of non-Jewish children for the making of those ever-menacing Passover matzos. I suppose it depends how you define extremism.)  ...

Our good pastor also found the time to tell his captive audience—if I may use such an unoriginal phrase in a literal way—that 80 percent of his countrymen opposed the administration's policy in Iraq. Assume yourself, dear reader, to be one of that possible 80 percent. Did you ever ask to be spoken for by Warren, who was a guest of a regime that sponsors al-Qaida infiltrators in Iraq, or to see him denounce the administration in front of an audience of Syrians that had no choice but to listen to whatever it was told? For shame.

No doubt there are synergies available that Obama should catalyze between Warren's minions and centrist and progressive minyans. That said, the selection of Warren is not well understood if only understood in instrumental terms, a point Paul trenchantly made. But along with that recognition must be alertness to the fact that the Who-should-bless-the-Inauguration question is not the same as who momentarily has the President's ear on certain issues. Indeed, it's precisely because the inauguration sparks the onset of a new era for the nation that the situation's optics must be examined carefully. And with the picture above, and the statements Warren made during and about his trip to Syria, well, let's just say that Warren's star has dimmed. 


Posted by Administrators on December 31, 2008 at 01:50 AM in Current Affairs, Dan Markel | Permalink | Comments (0) | TrackBack

Tuesday, December 30, 2008

The Employee Free Choice Act

Those of us teaching Labor Law last semester had a rare treat: a proposal to amend the National Labor Relations Act, in a significant way, made the news. Students brought it up on their own, presidential candidates were discussing it, and my own friends and colleagues were asking me about it. I say "rare," because the NLRA is notoriously difficult to amend. Since 1960, there has only been one, relatively minor, amendment (applying the NLRA to hospitals). Indeed, NLRA amendments are exactly comparable to playoff victories by the Detroit Lions, in terms of frequency and significance, in the last half-century. Wait, that’s another post. . . .

Most of the public debate over EFCA has concerned the "card check" provision. My take on EFCA, in short, is this: "card check," while an easy target for opponents to attack, is not nearly as radical as opponents claim; the second part of EFCA, which would stiffen the remedies for employer violations of the NLRA during union organizing campaigns is obviously justified; and that the third part, which would mandate binding arbitration if the parties could not agree on a first contract within a specified time period is the most interesting and radical part of EFCA.

First, card check. Yeah, yeah, how can anybody oppose elections? I’ll get into why the union elections aren’t much like political elections, but I’ll begin by suggesting that requiring employers to recognize unions if the union produces cards, signed by a majority of workers in an appropriate bargaining unit where there is no proof of coercion or fraud, is not actually a radical idea. For one thing, mandatory card check was the law under the NLRA until the 1950s.

Also, from the passage of the NLRA through today, employers always have been allowed to recognize unions via card check and without an election. This means, among other things, that EFCA does not take away any right that any employee has to an election. EFCA would merely take away the right of an employer to force an election, in the face of a valid majority card showing. Employees would still have the same rights to, say, decertify the union later. Indeed, under Dana Corporation (NLRB 2007), before a card check recognition would be granted any protection from a decertification election, there must be a 45-day window after the recognition in which 30% of the employees are entitled to demand an election.

Further, in the public sector, where labor law is state and local law, five or six states have enacted mandatory card check recognition. I am not aware of any incidents of menacing union/mob stereotypes – the kind one sees in anti-EFCA ads – coercing employees in these jurisdictions. Similarly, mandatory card check recognition is the law in some Canadian provinces.

Second, to understand both the card check and remedies parts of EFCA, one has to understand that lots of folks think that the union election process is fundamentally broken. There are many studies on this. To summarize a few results: 91% of employers force employees to attend intimidating one-on-one meetings with supervisors; 51% illegally threaten to close their worksite when employees try to form a union; 30% unlawfully fire workers who support forming a union as a way of intimidating others. An alarmingly high percentage of employees feel that they would be fired if they supported a union in a union election process.

Now you may say, "but that’s illegal, sp why don’t unions and workers just bring claims?" The problem is the uniquely weak remedies under the NLRA. An employee fired for union organizing gets the right to reinstatement and backpay – minus whatever the employee made or should have made while waiting to be reinstated. And after all the litigation and appeals, reinstatement usually takes years. Compare other employment law statutes, like the FLSA (double damages, attorneys fees) or Title VII (punitive damages, consequential damages, emotional distress damages, attorneys fees); none of that is available under the NLRA. It’s clear that a not-insignificant number of employers intentionally violate the NLRA because the penalties are so trivial. So, I think, the part of EFCA that would increase penalties for employer violations during union organizing campaigns is a no-brainer.

Finally, EFCA would require mandatory arbitration for first contracts when the employer and union haven’t reached agreement. This addresses the problem of employers refusing to agree to contracts with unions, then provoking strikes and/or decertification campaigns, thus frustrating the purpose of the NLRA. A study by Kate Brofenbrenner shows that in about one-third of cases in which unions vote for representation, after a year, employers still have not agreed to labor contracts. Current law does not require any agreement; it merely requires bargaining "in good faith." Again, the remedy for violating the duty to bargain in good faith is almost comically weak: it’s an order to begin bargaining in good faith – which often takes years to get – and that’s basically it. Also, if the union and employees reach an impasse during bargaining, current labor law allows management to implement its proposals unilaterally.

EFCA allows employers or employees to request mediation by the Federal Mediation and Conciliation Service (FMCS) if no agreement on a first contract has been reached after 90 days of bargaining. If the FMCS is unable to bring the parties to agreement after 30 days of mediation, the dispute must be referred to binding arbitration. Unions and employers can agree to lengthen these time limits.

Binding arbitration is a relatively radical idea under the NLRA, in that the NLRB and courts have always been loathe to do almost anything that would set substantive terms of labor contracts. On the other hand, such procedures are common in the public sector in the U.S., and are used in a number of Canadian jurisdictions. Also, it’s likely that if this part of EFCA were enacted, the vast majority of negotiations would not actually use binding arbitration; rather, the law would serve as an incentive to bargain in true good faith.

I don’t have any inside information, but obviously there will be a tough fight over EFCA, and compromises might well be made. Along those lines, I note that the public sector jurisdictions that use binding arbitration to resolve bargaining impasses tend to have very specific rules about how the arbitrations should work (e.g., what criteria arbitrators should use). Some more details might be useful in EFCA’s arbitration section. I also wonder whether, if the unions got the tougher remedies, they would feel quite as strongly about either or both of the other two sections. So we’ll see if EFCA will pass as written, or at all. One thing is for sure, however: in the next couple of years, labor law reform is looking a lot more likely than another Lions playoff win.

Posted by JosephSlater on December 30, 2008 at 04:50 PM in Workplace Law | Permalink | Comments (24) | TrackBack

Exam fun

When I include multiple-choice questions in my exams, I like to sprinkle into the mix a few just-for-kicks questions to give my students a mental breather. I’m enjoying the responses and thought I would share a couple.

Here’s one:

If the South Carolina School of Law faculty had a theme song, which of the following would it be?

(1) "Insensitive Stone Age Guys," Geoff Bartley

(2) "Everything Reminds Me of My Therapist," Nancy Tucker

(3) "I Can See Your Aura And It's Ugly," Mark Graham

(4) "I’m Interested in Apathy," TISM

(5) "Shiny Happy People," R.E.M

** Happily, answer choice (5) was the most popular selection, with (2) as a distant runner-up.  Here’s another (in our grim economic times, I deemed it wise to seek some career advice in the event of the unspeakable):

If Professor Susan Kuo were RIF’d (alternatively stated as "laid off," "fired," "terminated," or "sh*tcanned") from the faculty, what song title presents the best alternative career for her?

(1) "(Workin’ at the) Carwash," Rose Royce

(2) "Paperback Writer," The Beatles

(3) "Frontier Psychiatrist," The Avalanches

(4) "Bright Future in Sales," Fountains of Wayne

(5) "Cocaine Traffickin’," Ghostface Killah

** Over half of the class chose (2) for me, but (4) and (5) tied for second place. Good to know that I’ve options.

Posted by Susan Kuo on December 30, 2008 at 12:51 PM in Teaching Law | Permalink | Comments (2) | TrackBack

So help me (fill in the blank)

Michael Newdow has filed a law suit challenging that part of the oath of office to be administered at the presidential inauguration that contains the words "so help me God."

Of course, he will lose. Even if he is found to have standing, this falls into the category of cases that I can be properly dismissed with nothing more than a shrug, grimace and "Dude."

But if one gets past its inveterate silliness, it's hard to deny that the case has doctrinal legs. Either under the Lemon test of Justice O'Connor's endorsement test, it is hardly frivolous to suggest that government communication that acknowledges the existence of a God and the fact that this God can help us might advance religion or endorse it in a way that makes nonadherents feel like disfavored members of the community. While a court might (actually would) dismiss such an argument by invoking the troubling notion of ceremonial deism, there is no reason why this must be so. 

My own view, expressed here and further developed as it pertains to government speech in a forthcoming piece, is that the injury that Newdow seeks to prevent, while certainly real (if not as substantial as is often claimed), cannot be prevented in any type of evenhanded manner. Government inevitably will send messages disfavoring certain religious presuppositions and the common distinction - that these are not theological messages - does not comport with the actual way in which dissenters experience these messages or what theologians and sociologists tell us about religious formation.

While I think that there are non coercive messages that can raise establishment clause concerns, a mere invocation suggesting that the government endorses the existence of a monotheistic God who is somehow active in human affairs is safely on the right side of the line. 

Posted by Richard Esenberg on December 30, 2008 at 11:08 AM in Religion | Permalink | Comments (3) | TrackBack

Fictionalizing the Shoah, or Why tenure remains important

I came late to the story of Herman and Roma Rosenblat, two survivors of the Shoah (he at Schlieben, a sub-camp of Buchenwald, she pretending to be Christian and living on a nearby farm). The tale they told for a decade until last weekend is that during seven months in the winter of 1945, Roma (then nine) met Herman (then a teen) at the camp fence and tossed food to him over the barbed-wire fence. They then met on a blind date in Coney Island in 1957, told their stories of the War and realized who the other was; they fell in love and married and remain together, retired near Miami. This love story landed them two appearances on Oprah and a book contract with Berkley Books (a division of Penguin Group); their story was the subject of a children's book published last fall and of a movie, titled Flower of the Fence, scheduled to go into production in March.

But Ken Waltzer, a Holocaust expert and the director of the Jewish Studies program at Michigan State, looked into the story and began calling it into question. So did Deborah Lipstadt of Emory University, an appointee the United States Holocaust Memorial Council. The New Republic did an extensive investigation, including talking to other Schlieben survivors, some of them members of Rosenblat's family, who denied the story. Last Saturday, Berkley canceled the book after Rosenblat admitted to Harris Salomon (the film producer), his agent, and the press that the story was false. Roma was, in fact, in hiding in a different part of Poland, 200 miles away; Herman did not go to the fence to get food every day for months on end. TNR coverage here, here, here, and here. Comments from Waltzer here and here and from Lipstadt here and here.

I want to touch on two points in this story--one on the merits of the memoir controversy and one closer to the academic focus of this blog.

On the merits, I agree with the argument that falsified stories about the Shoah are troubling. But not because I think that enough small falsifications leave room to deny the entire thing. Rather, my problem is that this event was so horrific and that horror is lost amid false stories that humanize the events and, in the course of humanizing, make them seem more benign. The detail that caused scholars to question the story was that the only space along the fence at Schlieben where such an encounter could have occurred was right by the SS barracks; no prisoner and no Jew in hiding would or could deliberately walk that close to an electrified, barbed-wire fence, much less to the barracks and to the SS on a daily basis. A story, purporting to be true, that suggests otherwise makes the SS, and everyone's situation, appear less dangerous.

Waltzer sharply criticized the "culture makers"--Oprah, Berkley Books, producer Salomon--for failing to investigate or even question the veracity of a story that was on the "far end of implausibility" to begin with. He argues that the willingness to accept the story "shows something about the broad unwillingness in our culture to confront the difficult knowledge of the Holocaust." His suggestion is that the culture makers fail when they try to sugarcoat the Shoah for Middle America, resulting in miseducation rather than education. The flip side, as expressed to TNR by film-producer Salomon, is that the "candy-coated message" gives the story resonance with middle America and "can do more to teach people about the Jewish experience during the Holocaust in a way nothing before has done."

Count me on Waltzer's side of the fence (so to speak) on this one. I do not believe that we can teach about the Jewish experience during the Holocaust (or any experience, frankly) by presenting a story so sanitized that it presents a false (not just fictitious, but false) image of reality. Quite the opposite--we disserve the Jewish experience by giving it an impossibly pleasant veneer. Interestingly, Salomon for now plans to go forward with the movie, which he says was to have been a fictionalized "based on" story, rather than a true-to-life translation of the memoir. Salomon apparently sees this story, fictional though it may be, as much like the recent film The Boy in the Striped Pajamas in depicting a friendship between people on opposite sides of the camp fence. But, as the TNR story pointed out, that at least acknowledged that it was a work of pure fiction. (See here for a taxonomy of Hollywood Holocaust plots).

Now on to the academic point: This story suggests something about the continuing need for tenure. It is quite common to question that institution, given the negative incentives it provides. Or it is used to protect scoundrels, those who use it to write and say outrageous and offensive things (something that I am all for as a general matter, but not all people and not all universities are). But sometimes tenure still is necessary to protect scholars who are doing the right thing.*

As Waltzer's skeptical investigation, and the reportage by TNR, intensified, there was pushback from "culture makers" with a vested interest in this project going forward, most notably from producer Salomon. One move was to contact the dean at Michigan State to question and complain about Weltzer's research. Salomon also called it "bloody repugnant" that Weltzer spoke with TNR. Salomon also went after Lipstadt via e-mail, suggesting that she was slandering Rosenblat by questioning the story, that he (Salomon) knew more about the Shoah than she did, and that her questioning of the story is a "sin to the memory of all those who perished so long ago."

Of course, in neither situation did anything happen beyond sharp criticism of the scholars--which is, of course, completely fair game. And in neither situation did the University decline to support the professor fully and there is no reason to think they would not have done so had it come to that. But a university granting tenure is Ulysses tying himself to the mast--a precommitment that it saves it from even the possibility of its lesser tendencies. Perhaps the University never even will be tempted and perhaps scholars never will "need" to rely on tenure (I frankly never expect to have to). But it continues to serve a purpose, even if it only is wielded in the rarest and most exceptional circumstances. If I am Ken Waltzer, I feel better and safer entering into this fray knowing that I have tenure behind me.

* Yes, I recognize the subjectivity of those last two sentences.

Posted by Howard Wasserman on December 30, 2008 at 09:26 AM in Culture, Current Affairs, Religion, Teaching Law | Permalink | Comments (9) | TrackBack

Monday, December 29, 2008

Carol categories

It's a little late for this post, which also has nothing to do with law or prawfdom, but during this holiday season I've been thinking about how there are different kinds of "Christmas" songs, or how such songs are about "Christmas" in different ways. (I will henceforth use "Xmas" for "Christmas," since it's easier to type. As an aside, why does the "X=Christ" translation only occur here? I'd like to see more references to "Western Xianity," or "Xopher Columbus," or "Jesus X.") I think these songs break down into four meaningfully distinct groups.

Category 1: Winter Songs. Some songs are associated with Xmas and seem to be heard only during "the holidays," but are really about the season of winter, and would be just as appropriate in mid-February as they are in mid-December. These songs include "Jingle Bells," "Jingle Bell Rock," and "Sleigh Ride," all of which are about riding in a sleigh; "Winter Wonderland"; "Frosty the Snowman"; and "Let it Snow, Let it Snow, Let it Snow." None of these have any more relation to Xmas than does, say, "Baby, It's Cold Outside." It's perfectly OK to continue singing or whistling any of these songs for the next two months without feeling odd about it. Really. Go right ahead.

Category 2: "Holiday" Songs. These songs recognize the existence of Xmas, but have no religious content at all. Xmas in these songs has the following features: it's a holiday; it's at the end of the year; and spending it with loved ones is important or desirable. In many cases, "Xmas" could be replaced with Thanksgiving, or a late-year birthday, or Festivus with no real damage to the spirit of the song (though in some cases the song includes certain Xmas-related details, like references to a tree or gifts instead of a pole or the airing of grievances).

These songs don't take any direct positions on matters of faith. They merely note the existence of Xmas (or the "holiday season") and, often, associate it with a positive sentiment we might call "good cheer." Obviously the "holiday season" revolves around a specific holiday which is in fact a religious holiday, but these songs themselves have no religious content. These, then, are the sort of Xmas songs that can most easily be sung by Barbra Streisand, or written by Irving Berlin. Even non-Xians can endorse a day off to spend with your family (though, of course, they might prefer if the day off were not given because of its importance to Xians in particular).

Perhaps the archetypal song in this category is "Home for the Holidays," which doesn't even mention Xmas. But there are lots of others too: "The Most Wonderful Time of the Year"; "Deck the Halls"; "Silver Bells"; "White Xmas" (and, for that matter, "Blue Xmas"); "I'll Be Home for Xmas"; "Have Yourself a Merry Little Xmas," which I find quite moving when sung with the original lyrics, written during WWII (they seem to be making a comeback during the current wartime period). Many of these are among my favorite holiday songs, except "Most Wonderful Time," which is clearly overselling, in my opinion.

Some of the great modern pop songs about Xmas fit into this category too: "Xmas Wrapping" by the Waitresses; "Happy Xmas / War is Over" by John Lennon; "Fairytale of New York" by the Pogues, which is frequently voted the most popular Xmas song in the UK, notwithstanding any controversy about its lyrics.

Category 3: Santa. Too many songs to name, and they're mostly easy to spot, though some are borderline (e.g., I'd put "The Xmas Song" in this category, though its spirit might be more in Category 2). Santa songs are more Xmas-specific than the Category 2 songs, though they're about an independent Xmas mythology of flying reindeer, diligent elves, etc., rather than about the birth of the (alleged) messiah (whose central message, it must be noted, flies in the face of any strict "naughty or nice" accounting scheme). Still, the Santa mythology is quite evidently Xmas-specific and therefore can easily be seen as emitting a pro-Xian, anti-non-Xian vibe -- more so than the Category 2 songs, in my view, though I'd be curious to know what others think. Santa songs might also irritate due to their seeming (or, sometimes, outright) embrace of Xmas-related consumerism, which Xians as well as non-Xians might oppose.

I guess "Father Xmas" by the Kinks, which imagines a department-store Santa getting mugged, would also fall in this category, though it's not exactly pro-consumerism.

Category 4: Baby Jesus. These songs are For Believers Only. Their lyrics contain one or more of the following: a manger; shepherds; three "wise men" and/or "kings" following a star; angels; a baby boy who would grow up to be Our Lord and Savior.

I tend to think Category 4 songs belong in church, or else in the home. Even the ones I like make me feel uncomfortable when they're sung, say, on a usually non-religious TV show. I also tend to think, maybe even more strongly, that only Category 4 songs belong in church. As a child attending Xmas Mass, I always found it inappropriate if Santa showed up at any point, which he sometimes did.

I don't know why I've been thinking about this, except that it's something to do other than grade exams.

Posted by Michael Cahill on December 29, 2008 at 07:15 PM in Culture, Music, Religion | Permalink | Comments (2) | TrackBack

What we don't see

One of my favorite blogs (law or otherwise) is Mirror of Justice. Over there, Rick Garnett recently linked to a column by Spengler in the AsiaTimes. The column essentially begins with then Cardinal Ratzinger's notion that "the development of economic systems which concentrate on the common good depends on a determinate ethical system, which in turn can be born and sustained only by strong religious convictions." 

Putting aside, at least for now, the notion that such systems must be based on "strong religious convictions" (which I don't think is necessarily so, but may turn out to largely the case), I think that this observation is indisputably true. I agree with some of my interlocutors in our previous discussions of the implications of and potential responses to, the financial crisis that markets require both rules and trust which is ultimately rooted in whether participants act in good faith. I am, as I have said, skeptical of the idea that the rules can displace the need for good faith and suspect that the attempt to bend them to that end will create more harm than good.

But the Spengler column brings to mind a few things that don't get enough attention in our public debates

As lawyers - and particularly as legal academics - we tend to pay a great deal of attention to legal superstructure. As a profession that has come to be heavily influenced by economics, we emphasize individual incentives. And so our debate about episodes like the financial meltdown tend to focus on those superstructures. Did we tax too much or too little? Did we overregulate or underregulate the market?

Spengler suggests that the cause of the crisis was as follows: "[T]he bulge of workers in the US and Europe approaching retirement age is the ultimate cause of the financial crisis. Too much capital chased too few investment opportunities, and the financial industry met the demand by selling sow's ears with the credit rating of silk purposes."

This may not fit comfortably with anyone's ideological predispositions, but it rings true to me. Maybe its because I was born on the downward slope of the baby boom and my classmates and I lived chasing after the jobs that our older brothers and sisters had filled and trying to buy real estate at the inflated prices that they had created.

I have always thought that the impending retirement of the first wave of boomers would depress stock values and housing prices. While I tend to think of it in terms of too many sellers at the same time, I fear that the underlying lack of demand caused by demographic unevenness brought us to the point of too much demand chasing too little supply sooner that I thought it would.

There's much more to be said about this, but the larger point is that demographics can swamp our attempts to structure society.

Spengler's second point is that this demographic misfit is caused by a lack of character, i.e., a hedonism that resulted in a baby bust. I don''t intend to get into that, but it does remind me of another point that we often lose sight of. Democracies and free markets do, I think, presuppose persons of a certain moral character. In my view, this breaks down the sharp divide that those on the left and the right often want to draw between social and economic issues.

But that's another post. Or book.

Posted by Richard Esenberg on December 29, 2008 at 06:26 PM in Legal Theory | Permalink | Comments (0) | TrackBack

Is federalism good for local governments?

Dan Markel asked me this question in a response to one of my earlier posts. I am on record as arguing that the feds ought to be constitutionally prohibited from empowering local governments to resist state law. Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from Federal Control, 97 Mich. L. Rev. 1201, 1218-1225 (1998). The Court has leaned towards my position, at least as a rule of statutory construction, in Nixon v Missouri Municipal League, 541 U.S. 125 (2004)(a decision implicitly referenced by Dan in his query).

But it is a tribute to the wishy-washiness of my writing that my article was cited for the opposite proposition by Justice Scalia's dissent in Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 448-49 (2002) -- namely, that the doctrine was so unclear that no firm constitutional rule against such federal liberation of local governments could be inferred from the Constitution. Admittedly, I had suggested that the precedents are ambiguous. Nestor Davidson has written a nice piece taking a position more favorable to federal liberation of cities than I did: See his Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 Va. L. Rev. 959 (2007).

The Big Policy Issue is, I think, clearer than the doctrine: I actually think that federalization of local government law is bad for local power even when the feds purport to protect local governments from state law. I so argued in "Is Federalism Good for Localism? The Localist Case for Federalist Regimes," 221 J. L. & Politics 187 (2005). The reason is that local government officials likely have more influence over state legislatures than Congress: The Feds might look like they are local friendly in a particular case, but, in general, they just do not have the time or knowledge to behave like intelligent referees of local officials' inter-local disputes over tax base, territory, and legal powers. Mayors, in short, are fools to go to Congress for help: Their federal Big Brother will end up swallowing them up in a morass of Congressional indifference and incompetence.

There are scholars who have made the opposite argument -- notably, Frank Cross, The Folly of Federalism, 24 Cardozo L. Rev. 1 (2002). Cross argues that, if you like decentralization and local government, you should hate federalism, because states actually interfere with local governments' powers. I suggest that Cross got the data and argument wrong in my J.L. & Politics piece, but interested readers can check out the two articles and decide for themselves.

Posted by Rick Hills on December 29, 2008 at 10:45 AM in Rick Hills | Permalink | Comments (0) | TrackBack

Fantasy Prawfs

A few years ago I sat down to write a little Green Bag-esque article where I planned to set out some proposed rules for a fantasy law professor league, based on the popular fantasy sports leagues that lots of people play and can't ever stop talking about--fantasy baseball, fantasy football, fantasy scrabble, etc. etc.  (my own fantasy scrabble team is taking a huge hit this year, and I blame it all on Edley's recent troubles, but that's something for another post.)  Sadly, I wasn't able to come up with anything satisfactory, and so I shelved the project.

Now that I've started hanging out in the blogosphere, I thought maybe I'd try to revive the idea and see if my fellow blogospherians can help fill out the details.  There are at least two major issues that must be considered: (1) what are the key stats; and (2) what constitutes a team?  On #1, citation counts, SSRN downloads, publications, conference appearances, committee assignments (weighted to reflect more onerous assignments), and teaching evaluations would be likely choices, if indeed the data on these things are available (the latter would be made a lot easier if more students would start using the rate my professor website--indeed, perhaps that website could be brought on as a sponsor).  On #2, maybe each team would consist of one public law prof, one law and econ prof, one historian, and one crit, or something like that.  I'm very open to ideas on this, and I hope you'll share them in the comments.

Posted by Jay Wexler on December 29, 2008 at 10:31 AM in Jay Wexler, Life of Law Schools | Permalink | Comments (10) | TrackBack

The Detroit Lions: two competitions

I know this has nothing to do with law, and I promise a substantive post on labor law reform tomorrow or the next day, but today I ask that you indulge my posting about the Detroit Lions, the first pro football team to go 0-16 since the NFL went to a 16-game schedule some years ago.  As a long-time fan, I need to vent.

I propose two competitions.  First, a joke competition.  Example:  "Knock, knock"; "Who's there?"; "Owen"; "Owen who?"  "Owen sixteen."

Second, a challenge to list improbable events that have happened more than Lions playoff victories.  The Lions have won exactly one playoff game in the past 48 years, and none since 1992.

So, for example, one could say, "who would have thought in 1960 that there would have been serious impeachment proceedings started against more Presidents than Lions playoff victories in the next 40 + years"?  Or, "who would have thought in 1988 that the U.S. would be involved in more wars against Iraq than Lions playoff victories in the next 20 years?"

Feel free to leave your suggestions or related thoughts in the comments.

Posted by JosephSlater on December 29, 2008 at 10:23 AM in Sports | Permalink | Comments (11) | TrackBack

The significance of defining sport

I have written on several occasions about how to define sport and what qualifies as sport, a common game among “sports-and-____” academics. A frequent response to these posts has been “so what, what difference does it make?” And, in truth, it is largely an academic exercise and a fun way to make fun of gymnastics, figure skating, and golf. But, courtesy of Matthew Mitten at the Marquette Faculty Blog, it may have practical import after all.

The Wisconsin courts must figure out whether cheerleading is a sport, and a contact sport at that. A high-school cheerleader who fell and suffered severe head injuries while performing a maneuver sued her fellow cheerleader for negligence in failing to spot her properly. The defendant argued that he is immune under a state statute that eliminates liability for negligence (but not reckless or conduct taken with intent to cause injury) for injuries caused "in a recreational activity that includes physical contact between persons in a sport involving amateur teams." The appellate court assumed that cheerleading was a sport and acknowledged the athleticism involved in cheerleading. And, although the court did not mention, there are high-school cheerleading competitions (often seen at midnight on ESPN 8). But the court held that cheerleading was not a contact sport within the meaning of the statute because physical contact between opponents is not an element of the activity, thus the immunity did not apply. The case now is before the Wisconsin Supreme Court, which heard oral argument last fall.

I am troubled by the appellate court's approach (although not the result) because I think it might have unintentionally eliminated from the scope of the immunity activities that plainly are sports that should be covered by the statute but that also do not typically involve physical contact between opponents. The first example is baseball--not much direct physical contact with opponents, only with objects thrown or hit by opponents. So could I sue the opposing pitcher for a negligently thrown beanball? Could I sue a teammate who did not get out of the way when I called for a flyball? Perhaps plays at the plate or on the base paths, involving potential collisions with opposing players, are common enough that baseball would fall within the statute as interpreted.

OK, what about tennis--it is virtually certain that physical contact with my opponent on the other side of the net is in no way part of the game. But would this mean that I could sue my doubles partner if I am injured when I crash into my him (which, frankly, is more likely than crashing into my opponent) because of his negligence? Would this also would mean that I could sue my opponent if I was injured when he negligently hit me with a ball (e.g., serving when I was not ready)? Or track and field--if I am a long-jumper, I expect no physical contact with my opponent. Could I sue him if he jumped before I had a chance to leave the pit and landed on top of me?

The statute was enacted in response to a 1993 Wisconsin Supreme Court decision arising from an injury suffered during a soccer game, so the legislature had true "contact sports" in mind. And the appellate court emphasized that cheerleading is not a contact sport in that way. But baseball, tennis, golf, track, etc., also cannot be classified as contact sports in the same way as soccer. Now maybe this was intentional and the legislature did want to treat contact sports differently from other sports. But if the legislative concern was about not wanting to chill participation in amateur (especially high school) sports (which might come with a standard of care lower than recklessness), liability in any of the situations described above would defeat that purpose. Assuming the legislature did not intend to treat contact and non-contact sports differently, a court might get around this, at least in my baseball and tennis hypos, by reading the statutory term "physical contact" to mean contact with objects propelled by an opponent. And maybe track would fall in because physical contact is at least a possible element of running side-by-side with an opponent. But this is getting somewhat difficult to maintain.

Alternatively, a court might focus on the statutory term "sport" and find a workable definition of that word--exactly what I and others have been doing as a parlor game. My current favorite standard defines sport by four elements:

1) Large motor skills.
2) Simple machines only.
3) Objective scoring or at least the possibility of determining a winner by something other than subjective judging.
4) Competition among contestants.

Cheerleading satisfies ## 1 and 2, but fails # 3 and possibly # 4 (we would need to know more about whether this team participated in competitions). But track, baseball, and tennis--the examples above--satisfy all four criteria. This gets at the result--the cheerleader's claim can go forward--without cutting large swaths of sports out of the statute.

Posted by Howard Wasserman on December 29, 2008 at 08:45 AM in Culture, Law and Politics, Sports | Permalink | Comments (12) | TrackBack

Sunday, December 28, 2008

(Re)reading the riot acts?

All the news about the rioting in Greece has got me thinking about riots.  Back in the day, American statutes provided for communal responsibility for riot harm.  These statutes were variations on the English Riot Act of 1714, which imposed liability on local government for riot damage.  The Riot Act, in turn, stemmed from the Second Statute of Winchester, which codified ‘hue and cry’ responsibility – the duty of denizens to raise a ‘hue and cry’ to pursue perpetrators of felonious activity in their respective localities.  But the Riot Act went beyond the strictures imposed by the Second Statute of Winchester.  Hue and cry responsibility required a locality either to catch the bad guys or compensate the injured party.  In sharp contract, riot responsibility was absolute.  Even if the perps were brought to justice, localities were still on the hook for damages.

Why the extra special responsibility for riot harm? The reason appears to be that riots are different from other forms of unlawful recreation.  Riots endanger social stability; they present a distinct threat to sovereign power.  Large urban uprisings, in particular, can leave riot-sized rents in the social fabric.  Accordingly, state legislatures, in enacting these statutes, sought to deter local folks from participating in riots and to incentivize civilians and law enforcement alike to prevent and suppress unrest.  These statutes also spread riot costs throughout a locality, instead of saddling unlucky riot victims with the often devastating costs of mob violence.

Although American riot statutes have, by and large, gone the way of the dodo bird, governmental interest in suppressing unrest has not.  Riots still present distinct hazards to society.  Moreover, as I’ve written elsewhere, in comparison to other sources of loss, which occur more uniformly across socio-economic lines, riot loss has a disproportionate impact on the urban poor.  That insurance companies have taken measures, especially in our inner cities, to exclude riot damage from policy coverage further exacerbates this impact.

So, what do you think ... should we bring back the riot statutes?

Posted by Susan Kuo on December 28, 2008 at 02:44 PM in Criminal Law | Permalink | Comments (4) | TrackBack

Feeley's and Rubin's Argument by Lexicographical Fiat Against Constitutionally Protecting "Federalism"

Malcolm M. Feeley and Edward Rubin have finally set out their theory of federalism in a book: Federalism: Political Identity and Tragic Compromise (University of Michigan Press 2008) presents their theory that federalism is exclusively a means by which people with different "political identities" preserve their autonomy from the central government. For anyone who cares about the theory of federalism, Feeley's and Rubin's book is one of the most important books on federalism published in the last four years. (Two others are Edward Purcell, Originalism, Federalism, and the American Constitutional Enterprise: A Historical Inquiry (Yale University Press 2007) and Mikhail Filippov, Peter C. Ordeshook, Olga Vitalievna Shvetsova, Designing Federalism: A Theory of Self-Sustaining Federal Institutions (Cambridge University Press 2004)). They present the best statement of what I take to be a powerful fallacy about the justifications for federal regimes. If you care about federalism, you should buy it and read it and -- I hope -- come away unconvinced by its argument.

The essence of Feeley's and Rubin's argument can, I think, be stated in two propositions: (1) As a matter of basic definition, federalism is a regime in which the powers of subnational units are protected from the national government through some kind of constitutional entrenchment and (2) Such entrenchment of subnational power makes sense only if citizens' sense of allegiance -- their "political identity" -- to regional subgroups is stronger than their loyalty to the nation as a whole. For states with such a weak sense of national identity, it might make sense to protect subnational institutions from national power, as a way to give assurance to members of ethnic, religious, cultural, or other subgroups that they will not exploited by more powerful rivals. But, in any state composed of citizens with a firmer sense of national identity -- the United States, Germany, Australia, Argentina, among other apparently federal regimes -- federalism is a mere atavism. Indeed, such regimes cannot be genuinely "federal" in Feeley's and Rubin's sense, because "federalism" is defined exclusively as a mechanism to protect political identity (e.g., Shi'ite, Francophone, Zulu, Marionite Christian, etc.) from majoritarian exploitation. In nations where region does not coincide with such powerful loyalties, there is no need to constitutionalize decentralization of power, even if "managerial decentralization" might be a good policy.

Assuming that the preceding paragraph is a necessarily crude but reasonably accurate re-statement of their argument, then Feeley's and Rubin's book is, in my view, powerfully incorrect. The power of their error is that it is widespread: One often hears that federalism is no longer necessary in the United States because we are no longer divided by powerful regional loyalities. But this argument is erroneous, because it rests on a lexicographical fiat -- namely, the idea that, because protecting powerful regional "political identity" is one justification for constitutionalizing the allocation of power to subnational units of government, therefore it is the only justification that counts as "federalism."

Feeley and Rubin are surely correct that, if the only point of decentralization is to accomplish goals on which national citizens largely agree, then there is no particular reason why decentralization should be constitutionalized. Why not just leave such purely instrumental decentralization up to the discretion of Congress? But decentralization is not merely managerial in this mundane and uncontroversial sense. Decentralization can also be used to protect goals that Congress might not be trustworthy to safeguard without constitutional oversight -- goals like (a) protecting opportunities for political expression and political competition that incumbent politicians in Congress might wish to suppress; (b) limiting the Leviathan-like tendencies of centralized governments to engage in predatory taxation; (c) constraining the universalistic tendencies of a Congress lacking strong political parties to spread pork around in inefficient ways; (d) reducing the costs of political careers so that cub politicians can have a chance at challenging national incumbents; and etc, etc., etc.

Feeley and Rubin dismiss all of these justifications for decentralization as irrelevant to "federalism" in their narrow sense of the term, because these justifications are not related to the protection of subnational political identity. According to Feeley and Rubin, such goals are still merely carrying out the policies of the national citizenry (e.g., fiscal restraint, political competition, small electoral districts, etc.) and, therefore, do not count as "federalism," because the national goals are paramount over the goals of any subunit.

Yes, of course, federalism in this sense is a policy of a unitary people: We the National People simply like decentralizing power to units called "states," for some of the reasons offered above. But so what? What exactly hangs on this lexicographical assertion? The important issue is whether there are good reasons rooted in the unreliability of Congress for entrenching the rules of decentralization in a constitution, even in nations with a strong sense of national unity. If there are, then Feeley and Rubin have not made the case that "federalism" is irrelevant in the United States or other nations with a strong sense of national unity. Many writers -- Brennan & Buchanan, Inman & Rubinfeld, Besley & Case, Benjamin Lockwood, Albert Breton, among others -- have laid out some reasons rooted in political economy to believe that centralized legislatures cannot be trusted to decentralize power optimally. Why not use the label "federalism" to apply to this body of reasons?

Feeley and Rubin appear to argue that a constitutional policy cannot be an instance of federalism unless it is a norm selected by a subnational unit. But this is strikes me as a non sequitur: One might as well say that "individualism" is not constitutionally ensconced because the norms protected by individual rights are not determined by individuals. Yes, We the National People have decided not to trust Congress with complete power over decentralization policy: We constitutionally require decentralization of power to states, juries, newspapers, churches, and a host of other subnational institutions. "Federalism" in this sense is a national policy of a national people that this national people could change at will through an Article V amendment or by changing the composition of SCOTUS or some other formal or informal constitutional means.

So what? Federalism in this sense stands on exactly the same basis as individual rights -- as a constitutional policy of distrust towards centralized institutions. It is an empirical question, of course, whether such distrust is justified; It is a normative question whether We the National People actually care about the sort of decentralization that federalism protects. But these are questions that Feeley and Rubin do not fully engage, because they are caught up with the lexicographers' argument that "federalism" is only concerned with political identity.

Posted by Rick Hills on December 28, 2008 at 11:03 AM in Constitutional thoughts | Permalink | Comments (5) | TrackBack

Friday, December 26, 2008

Pacing Classes

The semester-interregnum is the period of grading, planning for next semester, and (hopefully) doing a little writing, as well as whatever holiday and family festivities we have. It also is a good time to look back at the prior semester, figure out what we did right and wrong, and think about how to carry those lessons into the next semester and to the next time we teach that class (often a year later).

Once again, my biggest problem last semester was the pacing of my classes. In Fed Courts, we got through jurisdiction, 11th Amendment, justiciability (although not Political Question Doctrine), and abstention (but not Rooker-Feldman). I did not get to jurisdiction stripping, Boumedienne and the War on Terror, or congressional control over the courts--the fun, theoretical stuff that I save until the end. In Civil Rights, we basically had about 1/2 a class of lecture on civil rights injunctionsThe last time I taught civ pro in a single semester (spring 2007), I was able to do only one day on the basic principle of Erie and I am trying to figure out how not to repeat that mistake next semester.

My problem is that I do not organize my courses by days--we will do one day on this topic, two days on this topic, etc. Instead, I organize by topic. And we stay on a topic until I get them the information and detail I want them to have and until they "get it" (or at least until there is no one left raising her hand and saying "I don't get it"). The inevitable consequence is that we spend a longer period on the material early in the semester and rush through (or do not reach) some stuff towards the end. And this has gotten worse as I have become more "Socratic" (danger quotes intentional) the more times I teach a course. When material leads to free-wheeling discussions, we stay on a topic that much longer--and I confess to not being very good at cutting off or reining in discussions.

So I would like to hear about how folks control the pace and coverage of courses. Any thoughts and suggestions?

Posted by Howard Wasserman on December 26, 2008 at 09:06 PM in Teaching Law | Permalink | Comments (7) | TrackBack

Does Retribution = Orgasm? More on the search for funny footnotes

In some future post to be named later, I hope to weigh in on some of the interesting posts our guest Mike Cahill wrote about retribution earlier this month. In the meantime, I want to continue what appears to my Christmas break tradition of blogging about Occam's dildo and other funny footnotes, especially if they have some tie to the work on retribution that Mike and I are engaged in.  Today, while looking over David Dolinko's 1997 Law and Philosophy articleRetributivism, Consequentialism, and the Intrinsic Goodness of Punishment, I came across Dolinko's discussion and critique of "consequentialist retributivism." He writes:

It seems, then, that positing that punishment of guilty persons is an intrinsic good is far from explaining why there should be a duty to set up state institutions to mete out such punishment.

And the footnote to that sentence reads:

The point is even clearer if, instead of happiness, we think of other plausible, though more disputable, candidates for the title "intrinsically good." One might well believe that the intensely pleasurable sensations accompanying orgasm are intrinsically good, without for a moment supposing that this suggests a duty to set up state institutions to dole out orgasms to people! Indeed, it's not merely that there is no duty on the state to set up such institutions. There is likewise no duty on any individual to provide others with orgasms whenever he or she is in a position to do so.

So the question before us, I suspect, is which metaphor or analogy seems more apt to conduce understanding of the value and obligation of retribution: is the imposition of retribution closer to the imposition of orgasm, the achievement of health (as some commenters on Mike's posts suggested), or something else? :-)

Happy Boxing Day! And as always, feel free to share your own favorite footnotes in the comments.

Posted by Administrators on December 26, 2008 at 12:11 PM in Article Spotlight | Permalink | Comments (2) | TrackBack

Local Democracy's struggle with ERISA Preemption

San Francisco is now locked in a struggle with business over whether subnational governments can mandate that employers provide their employees with health care benefits. The employers are claiming that ERISA preempts the mandate, and their argument illustrates the insidiously anti-democratic nature of preemption arguments. As a matter of policy, I tend to agree that funding public benefits like health care through mandates on employers is foolish. Such a finance mechanism interferes with the mobility of labor and discourages job creation. Far better, it seems to me, to provide health benefits through general taxes not incident on employment.

But here is where I am a die-hard lover of federalism: As dumb as employer mandates are, centralizing debate over health care through a broad construction of ERISA preemption is even dumber. Such centralization is an outrage against the democratic process both locally (by suppressing the efforts of those zany San Franciscans) and nationally (by letting Congress off the hook of confronting the relationship between health care and employment). San Francisco hurts no one but itself and its own residents by burdening business and driving away capital to the 'burbs. The claim that national businesses will suffer some external cost outside San Francisco from disuniform regulation is patently baloney: Any business that operates in any city already must uncontroversially incur the costs of researching and complying with local zoning codes, local taxes and fees, local building codes, local safety regulations, etc. The marginal cost of insuring that one's local branch complies with the local complying health care law is close to zero.

Therefore, you can imagine my delight when I read Judge William Fletcher's opinion in Golden Gate Restaurant Association v. San Francisco, 546 F.3d 639 (9th Cir. Sept 30th 2008), upholding San Francisco's mandate on employers employing between 20-99 persons to provide health benefits to their employees. The Golden Gate Restaurant Association argued that ERISA preempted the ordinance because the ordinance "related to" or "made reference to" ERISA benefit plans. Fletcher rejected this argument, which had been adopted by the Fourth and Second Circuits, reasoning that San Francisco's ordinance did not regulate the terms of any employers' ERISA plans but rather required employers to provide a dollar amount of benefits (roughly $1.17-1.76 per employee hour) regardless of the terms of any employment contract.

Judge Fletcher is right on the legal merits, in my view, for reasons too tedious to detain anyone except aficionados of federalism and/or ERISA. (I include a few of those reasons after the jump for the one or two readers who might conceivably care about such matters). But, as far as "decentralization policy" is concerned, Fletcher's opinion is a precarious victory for sane federalism -- precarious, because it is vulnerable to en banc and SCOTUS review. One can only hope that SCOTUS's recent endorsement of the presumption against preemption in Altria v. Good will slow down the madness that is ERISA preemption.

For those who care about ERISA, why do I claim that preempting San Francisco's ordinance is madness? The Restaurant Association is essentially making an effects-based preemption argument, asserting that SF's ordinance effectively requires employers to change their ERISA benefits plans to comply with San Francisco law. The folly of this argument, however, is that it proves too much: Lots of local laws might have effects on employers' incentives to provide contractual benefits. Medical malpractice lawsuits under state tort law might drive up the cost of insurance, leading the marginal employer to reduce employees' health care benefits. Local zoning law could -- indeed, does -- increase housing costs, which increases the relative attractiveness of housing benefits to employers. But no lawyer in their right mind would argue that these state and local laws "relate to" ERISA benefits plan, because these laws' obligations are not triggered by the existence of ERISA-covered employment benefits.

It is conceded that SF could not impose mandates on employers because they provide ERISA-covered benefits to their employees. But SF has not done so: The duties under the SF ordinance apply to every employer, regardless of whether those employers provide ERISA benefits -- or any benefits - -pursuant to contract. True, employers who provide health care benefits thereby comply with the ordinance. But employers who do not do so do not thereby escape the ordinance -- and it is this latter fact that makes the ordinance a simple mandate on businesses rather than a regulation of the terms of ERISA-covered plans.

Any other theory will draw the courts into a theory of preemption that could suck every state and local regulation of business into the maw of ERISA preemption -- an outcome utterly unintended by anyone in Congress in the 1970s, when ERISA was enacted. For courts to create such centralization without Congress' assent is, as I noted above, an outrage against common sense and subnational democracy. As I have argued elsewhere (Against Preemption: How Federalism Can Improve the Federal Legislative
, 82 N.Y.U. L. Rev. 1 (2007)), ERISA preemption has also absolved Congress of the duty to confront the problem of how health care benefits relate to employment. Preemption, in short, destroys both subnational and national democracy. So here's hoping that Judge Fletcher can sustain his blow for federalism.

Posted by Rick Hills on December 26, 2008 at 10:29 AM in Rick Hills | Permalink | Comments (6) | TrackBack

Thursday, December 25, 2008

Gershon Schonfeld Leib

Gershon Schonfeld Leib entered the world on 12.22.08.  He joins Clementine Leib Schonfeld to round out our clan.  Clem was cuter -- is cuter -- but we're keeping Gershon anyway.


Posted by Ethan Leib on December 25, 2008 at 10:44 PM in Ethan Leib | Permalink | Comments (5) | TrackBack

Merry Christmas

Merry Christmas to all our readers celebrating the holiday. Hope you are enjoying the blessings of the season. 

Posted by Administrators on December 25, 2008 at 10:45 AM in Current Affairs | Permalink | Comments (0) | TrackBack

Wednesday, December 24, 2008

A Heartbreaker Named Detroit

As a native Milwaukeean, Detroit breaks my heart. There are just a few cities that you can go that you remind you of home. Chicago and Cleveland are the big two. Cincinnati is reminiscent but a bit too southern. Detroit - or what used to be left of Detroit - was another. (Minneapolis is an entirely different kind of place.)

So pieces like Matt LaBash's recent cover piece for the Weekly Standard disturb me. Websites like this one are fascinating and frightening chronicles of how bad urban decay can get. I have always thought that a conservatism that has no concern for places like the inner city of Detroit is not a conservatism that I want to be part of.

But one cannot, I think, make a great city by litigation or subsidy. Here in Milwaukee, the ACLU has filed a complaint with the Federal Department of Transportation alleging that actions of the Wisconsin Department of Transportation in approving the certain aspects of the reconstruction of I-94, including the partial closure of a city interchange and the construction of a new suburban interchange violates the anti-discrimination provisions of Title VI and its implementing regulations. It also complains of a decision to widen the freeway (which runs through the city) from 6 to 8 lanes instead of using the money for commuter rail.

What interests me about the complaint is that it is based upon highly contested propositions of what will best serve minority communities in the city of Milwaukee. The proposed changes, it says, discourage development in the city closer to the areas in which minorities live (although the interchange to be partially closed is in a predominantly white part of the city) and, since minorities are less likely to have cars, they are less likely to benefit from freeway construction.

Title VI does have broad anti-discrimination provisions but applying them here would seem to require resort to standards that the statute does not supply. Are minorities hurt or helped by greater access to and from outlying areas. There is a body of thought that holds that, if you make it harder to get in and out of the city, the city will prosper.

While that may have been an effective argument in 1956, I am not so sure that it works any longer and  Detroit, it seems, provides some evidence for my skepticism.

While today we think of the demise of Detroit with the fall of the auto industry, the death of the former preceded the decline of the latter. Detroit long ago became the hole in a metropolitan donut.  As Labash reports, a thriving Chrysler left the city's Highland Park for Auburn Hills because, among other things, the occasional bullet would whiz across its property. The tragedy, of course, is that while Chrysler left, the bullets still fly. Transportation policy could not have prevented and cannot reverse what happened.

Of course that doesn't mean that transportation policy can't have an impact on metropolitan areas,

But I'm interested in the larger question that the complaint raises about the use of anti-discrimination laws in this way. It is one thing to interpret anti-discrimination laws to prevent the exclusion of minorities and quite another to interpret them to compel policies that are thought to serve the interests of minority groups as envisioned by a certain set of ideological presuppositions. I understand that you can call the failure to do so "discrimination" and "advancing minority interests" is a standard of sorts.

But it does not seem to be one that is capable of judicial application without essentially calling upon judges to act in accordance with their individual policy preferences. Returning to my earlier remark about a conservative urbanism, a conservative judge might find another set of policies - i.e., those thought to discourage marriage or to inhibit effective law enforcement - from disserving the interests of minorities.

Cross posted at Marquette University Law School Faculty Blog and Shark and Shepherd.

Posted by Richard Esenberg on December 24, 2008 at 05:01 PM | Permalink | Comments (6) | TrackBack

Tuesday, December 23, 2008

Gershon, Antigone, Madoff, and Punishing Family Status

First, since the following is apropos the lure of family ties, let me begin by extending congratulations and mazel tov to co-author/co-blogger Ethan Leib and his family on the birth of a baby boy yesterday morning. Gershon: welcome to the burgeoning Prawfs family!

Second, as acknowledged yesterday, I have been an intolerably bad blogger the last few months. While still under the deluge of edits on various projects, I hope the situation will improve soon, and in the meantime, I wanted to quickly draw attention to one aspect of the Bernie Madoff scandal that's been of particular interest to me: the fact that he was turned in by his sons. There's still some question as to whether Madoff's Ponzi scheme was truly a work of solo endeavor, or whether he had to bring in others to help swindle so many of so much. Some folks might believe that the sons had to be involved also despite their involvement in facilitating the apprehension of their father. But according to a recent news account having to do with whether Madoff acted alone:

Investigators were also expected to look at the potential involvement of several Madoff relatives who worked for his firm, including his brother, two sons and others who worked for his various business entities. His wife has also come under scrutiny. To date, however, they also have not been formally accused of any wrongdoingThe law firm representing Madoff's sons, Andrew and Marc, released a statement saying they first learned of the fraud just days ago, when their father tearfully confessed, and immediately turned him in. The two are said to have worked predominantly in another division of their father's company, not in the secretive unit that handled investor money.

The story of Madoff's arrest intersects with some of the issues that motivated the project I'm doing with Ethan Leib and Jennifer Collins on the criminal justice system and the quirky role that family status plays in it.* When I initially started thinking about this topic some three or four years ago, it was largely through the prism of what I thought of as the Antigone problem: the conflict citizens (like Madoff's sons) have between loyalty to family members and duties to the state. As Ethan and Jennifer came aboard the project, we realized in concert that the site of conflict between family and criminal justice was more complex and layered than just the classic Antigone problem, and from that realization, we changed our focus over time to study the various ways the criminal justice system distributes both benefits and burdens to defendants based on their family status or family ties and responsibilities. The Antigone problem, crudely reflected in a way by the Madoff fraud bust, sort of fell away from being our sole object of study, and in fact, virtually recedes from focus other than playing a role in motivating dramatic interest in the connection between family, crime, and punishment.

In any event, I can now report that Punishing Family Status (PFS), the second part of our efforts which studies and proposes reforms to the burdens placed on defendants on account of family status, is now available in final form on SSRN and on Westlaw. (I've also just received my offprints; if you'd like a hard copy, please email me your mailing address, especially if you didn't receive my last batch of offprints.) PFS is the basis of a mini-symposium in the Boston University Law Review's December 2008 issue. The issue (and the offprint) includes a set of fascinating responses by our own Rick Hills and Michael O'Hear, and a reply by us. Btw, make sure you check out the BU LR December 2008 issue so you can also see Carissa Hessick's very interesting piece, which looks at the role of prior good acts in sentencing  -- more on that in another post perhaps.

*We just received the book proofs for this project, which comes out in a few months; you can pre-order it here at Amazon.


Posted by Administrators on December 23, 2008 at 03:48 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (2) | TrackBack

Is an Argument Any Less Valid if You're "Lying?"

Jay's posts have been very enjoyable, and I was intrigued by his post asking how people would feel if a professor simultaneously published "two articles at the same time taking diametrically opposed questions on the same question or issue or set of problems." 

Most of the early commenters on the post were simply perplexed: why would someone do it?*  One commenter wrote, "I think that when an author puts his name to a piece of scholarship, it's an implicit statement that the author actually subscribes to the conclusions stated in the article, for the reasons stated in the analysis part. And as a general matter, I think it's unethical to publish an article where the author doesn't actually subscribe to the article's conclusions."  Our prized commenter Orin writes in part that the professor would be "a bit of a loon. If you're torn on an issue, the best way to communicate that is to engage the difficulty and explain why you're torn: the worst way is to pretend no difficulty exists by writing two separate articles."

I wonder why it matters. 

 Let's assume that both articles are compellingly argued and persuasive.  Maybe they take similar normative and methodological starting points and just diverge on particularly difficult issues; or maybe they examine the same issue but with different normative or methodological starting points (ie., one proceeds from an efficiency-oriented standpoint and the other doesn't; or one is originalist and the other is not).  But they are both strong pieces.

Why, then, should we care that the author believes that one article is right and the other isn't, or indeed that she may not particularly share either view?  I understand that people may have different emotional reactions to being kicked and being stumbled over.  Physically speaking, however, the result is the same.  Now, in my supposition and Jay's, both articles are compellingly argued and persusasive.  If read without regard to the author's motives, they would both be seen as at least potentially valid.  So why should it matter that the author actually believes only one -- or neither, or both -- arguments?  Why should we care why the author did what she did?

One commenter, as I said, suggests that such an action would be unethical because authorship implies agreement with the arguments contained in the article.  I'm not sure that's right, and I'm not sure how much motive matters provided the article is written with scholarly integrity with respect to the arguments contained therein.  Let's say the author acted as she did out of perversity -- a valuable motivation, in my view; would that there were more of it!  Is it not possible to be a scholar who is both possessed of integrity as a scholar and perverse in motivation?

I suppose I find this especially interesting because the same commenter also suggests that all this is different from the case of a lawyer writing a brief, who is simply making the best possible argument on behalf of her client.**  What I think this fails to capture is the fact that most law-review writing, whether or not it is true "scholarship," is highly argumentative and normative; as many people have observed, countless law review articles resemble nothing so much as briefs written to a court urging a particular result.  Often enough, the convictions moving the author are ideological, not just the "search for truth" that is the scholar's province in the traditional view.  To that end, I would suggest that law review authors (too) frequently make compelling arguments that they do not believe in -- using a methodology (say, originalism) even though they think it is illegitimate, or making efforts to distinguish cases that, in their heart of hearts, they think are indistinguishable, or arguing that a particular position does not carry certain implications when, logically, it does.  They arewriting briefs. 

I am reminded of the efforts of many academic lawyers to turn headstands arguing that their position in favor of the law school plaintiffs in the Solomon Amendment case in no way required reexamining any of the civil rights cases, like Runyon v. McCrary.  (I won't name names here, but one example can be found in a very long footnote in this article.)  In that case, the arguments were, in my view, unpersuasive in part because they were internally inconclusive; the degree to which the arguments were internally flawed, in my view, also called into question whether the authors had acted with full scholarly integrity or whether they were just acting as advocates, and unpersuasive ones at that.  But if a legal academic makes an argument that is not internally flawed, that is in fact persuasive, should we care if she doesn't necessarily believe it?

Many people seem to have less of a problem with the ideologically driven professor than the hypothetical perverse writer that Jay posits.  But I wonder: aren't authors who fall in the former category as dangerous to the cause of scholarship, if not more so, than someone who writes a wholly compelling argument (or, in Jay's example, two arguments) that she doesn't necessarily personally believe in, for no better reason than perversity?

* In the comments section, Jay provides two possible reasons: the author might be completely torn on the issue, or she might be doing it as, in effect, a piece of performance art.  As I suggest above, I think there are other reasons one might do such a thing.

** I wonder in which category the commenter would put the anecdote about Justice Douglas writing an opinion and then, because the Justice on the other side of the issue was having trouble, drafting the contrary opinion as well.  Or the one about Judge Posner as a law clerk, mishearing Justice Brennan's instructions and drafting an opinion that reached the opposite result of the one he had been instructed to reach -- an opinion that Brennan and the Court then signed onto.          

Posted by Paul Horwitz on December 23, 2008 at 01:21 PM in Life of Law Schools | Permalink | Comments (22) | TrackBack

"What Do You Mean, 'We?'"

I'd been meaning to write for a while about this comment in the New Yorker by Hendrik Hertzberg discussing the passage of Proposition 8.  I don't find the New Yorker's political commentary terribly useful, and this one was no exception, but I found its framing interesting.  Hertzberg assails the Mormon Church for funding and supporting the effort to pass Proposition 8, arguing that a church that "was the world's most notorious proponent of startlingly unconventional forms of wedded bliss [should] be a little reticent aout issuing orders to the rest of humanity specifying exactly who should be legally entitled to marry whom."  (He mentions that the Church has long since rejected plural marriage, but just in passing and without much conviction or any seeming understanding that its position on these issues might have changed drastically in a century.)  He effectively blames the Church for the passage of the proposition.

On the other hand, he assails those "conservative commentators" who "dwelt lingeringly" on the substantial black turnout in favor of Prop. 8 -- some 70 percent of California's African-American voters supported the proposition.  He disdains any efforts to "blame" blacks for the outcome, saying that the initiative would have passed, "barely," even without their vote.  Obviously, there is at least as good a case to me made that significant black support for Prop. 8 was crucial, if not necessary, to the proposition's passage as there is that Mormon funding was crucial to its passage.  And yet, Hertzberg focuses his fire on the Mormons and conspicuously holds it with respect to African-American voters.  

Clearly a substantial part of his goal here is to hold together a fragile liberal political coalition; and if that means shading the truth as he needs to, so be it.  But am I wrong to detect a hint of condescension, a certain de-haut-en-bas quality, to his argument?  By negating the black influence on the initative's passage, does he not ultimately try to see African-Americans only as he wants to see them, without bothering or caring enough to see them as a whole, in all their diverse views, some of which include a strong strain of religious conservatism?  Do progressives (and others) really care about a people if they make no attempt to understand them fully, even where some of their views diverge from what they want to imagine about them?

I am reminded of this as I read the reactions to President-elect Obama's choice of Rick Warren to give the the invocation at his inauguration.  

Warren has taken a strong stand on caring for those with HIV and AIDS, and he believes in equal civil rights for gays and lesbians, including hospital visiting rights and so on.  He also believes that religious conservatives' focus on gays and lesbians is misguided, saying that divorce is a grave issue, but that "we always love to talk about other sins more than ours."  But he unquestionably does think homosexual conduct is a sin and has said so in strong terms, and he supports neither same-sex marriage nor same-sex civil unions.  (For more detail, see here.)  

Neil Buchanan, writing at Dorf on Law, calls Obama's invitation to Warren "Obama's betrayal," the decision "appalling and stupid," and says this "should be his first political crisis."  (This last point is interesting, because he later acknowledges that Bill Clinton's focus on don't ask-don't tell was a failure, although he does not discuss the ways in which advancing the issue so early in his presidency also derailed his efforts in a number of other policy areas.)  He says Obama has "giv[en] over the stage to an agent of intolerance," and, echoing commentators elsewhere, suggests that Obama's decision must have been a tactical and not a heartfelt one.

Let me say that although I think Buchanan's writing is overheated, I think it is perfectly acceptable to deplore Obama's invitation to Warren.  I think it is probably wrong to call Warren "intolerant," unless you think that any opposition to same-sex marriage or civil unions is intolerant in and of itself and that no amount of other views about the civil rights of gays and lesbians can diminish that.  Warren strikes me as both tolerant of gays and lesbians, in the sense that he recognizes them as full human beings entitled to civil rights and to make their own choices as to whom to love, and implacably and vocally opposed to conduct that he thinks is a sin. 

But there is no reason that anyone, straight or gay, cannot decide that this view alone is enough to merit condemning Warren, and condemning Obama for inviting him.  I am perfectly content to know and love people who believe, however sorrowfully, that Jews are as capable as anyone else of great virtue in this life but condemned to perdition in the next.  But if Obama had invited to give the invocation someone who believed that Jews are fine people but that they should be deprived of the right to marry, well, my views might be a little different.  Perhaps, I say seriously, this is a shortcoming on my part; or perhaps it is a natural consequence of the fact that gay rights are still in the realm of contestation, making it somewhat less difficult to treat with people who hold opposing views on this issue, while civil rights for Jews are no longer contestable in our society.  In any event, as I say, people are well within their rights to reject Warren's views on gay rights, and to deplore his invitation to give the invocation.  Although I do not, I think it is a perfectly respectable position.

What I find interesting about all this, though, is the degree to which it reflects a desire to turn Obama into something other than he is: to see in him a political progressive in all ways and on all issues.  This is especially evident in the refusals to see Obama's decision as anything other than a tactical one and not a sincere one.  And I wonder if it does not bespeak something of the same dynamic that we saw in Hertzberg's commentary. 

After all, who did Obama "betray?"  Progressives?  Perhaps.  But did he betray African-Americans, who have every bit as much at stake in this inauguration and, as the California vote suggests, include among their diverse views many people who are deeply religious and opposed to full same-sex rights?  Did he betray himself?  After all, he shares many of those religious views, including some socially conservative views, and himself opposes same-sex marriage.  Why is it impossible to believe that Obama made a conscious choice that, whether or not it contained strategic elements, also is sincere and heartfelt?  Perhaps he disagrees with Warren on some issues but also believes Warren is a good man; perhaps he dislikes some of Warren's rhetoric on same-sex issues but broadly shares his view that gays and lesbians should enjoy civil rights but not marriage rights.  And perhaps, in this, he is squarely in the mainstream of not only American thought, but specifically religious and/or black American thought.

None of this should be a surprise.  For all his progressive political views, Obama has been equally clear on the religious roots of much of his thinking and that some of those views are what we would commonly describe as conservative.  So it is interesting that people describe him as engaging in an act of betrayal, rather than as engaging in an act of keeping faith; and it is passing interesting that they try to describe his actions only in strategic terms and not as a sincere move. 

Here I see the link between Hertzberg's comment and the present controversy.  I think John McWhorter is right to argue that  this moment "forces us to attend yet again to the sometimes discomfitingly partial overlap between Blue American bona fides and black authenticity."  McWhorter concludes, "Overall, expecting Obama to treat social conservatism as beyond the pale proposes that Obama dismiss a frame of reference typical, whether many of us like it or not, of legions of the people we're supposed to be so excited about including in the American fabric.  Black he is not, but at the inauguration ceremony next month, Rick Warren will be every bit as much in line with the black American soul as [fellow inaugural performer] Aretha Franklin."  

As I say, people are welcome to oppose Obama's choice on this issue; there is nothing disreputable about such a position.  But they should not be surprised by his choice; and if they are, and persist in seeing it as nothing more than a calculated decision, perhaps they should make a greater effort to understand Obama as a man in full, including one with deeply religious views; and perhaps they should reflect on the ways in which both Obama's constituencies and some members of the progressive fold, including African-Americans, are not just good foot soldiers, but rather are a diverse lot that includes many religiously conservative individuals.  Surely full, equal, and genuine respect demands as much.

(Somewhat un-PC hat tip: Tonto.)                      

Posted by Paul Horwitz on December 23, 2008 at 12:31 PM in Current Affairs | Permalink | Comments (3) | TrackBack

Monday, December 22, 2008

Prawfsfest! 4, MVP's, blogging in 2009, and thinking ahead...

After the Prawfsfest! in Miami, and a briefer than expected visit to the treetops of Costa Rica, I have finally returned back to my desk, where, among other things, I'm hoping to do some more substantive blogging the next few months. In the meantime, let me just take a moment to thank Deans Paul Verkuil and Donna Coker at U of Miami for their hospitality and support in underwriting the costs associated with our recent Prawfsfest! workshop at UMiami. 11 of us showed up (5 from Florida and about 6 from outside) to the lovely UM campus, where thanks to Ben Depoorter's effortless charm, we were well cared for.

As is typical with the Prawfsfest! series, the focus is on public law and legal theory papers. The idea is to present a work in early progress (attendees are expected to read at least 20 pages of manuscript). The papers are supposed to be raw or 1/4 baked; in other words, pre-SSRN and pre-placement.  The presenter talks for no more than 5-7 minutes and for the remainder of the hour, we go around the room with folks offering their comments. There's a no-foreplay norm that's softly enforced. As one attendee archly characterized the prevailing spirit: if you have something nice to say, don't say it! In the past, the 20 pages standard has been subject to varying interpretations. I suspect for the next one, we will move to a more clear rule, something like: please determine which 7000 words of text (ie, excluding foot/endnotes) you'd like everyone to read at minimum. This set of norms is still in flux; I'd be curious to hear how organizers/participants in other workshops structure the incubation of these sorts of projects.

For what it's worth, I circulated an early version of a paper on intermediate sanctions and complex litigation that I've barely begun. Sure enough, I was persuaded to peel off aspects of the project for another paper (retributive damages regarding public entities), and to give more consideration to various topics. Though I didn't take a formal poll, I'm guessing that Dave Fagundes would again win the MVP (most valuable prawf) award for his amazing comments on so many of the papers, if not for the meticulous binder with tabs he made of all the various papers.

The next Prawfsfest! will be hosted here at Florida State (thanks to my Deans, Don Weidner and Wayne Logan). It will take place sometime b/w tax day and the ides of May--still nailing that down. Attending Prawfsfest! is one of the perks of guest-blogging here, so if you anticipate having a paper in the right stage of development and the right area-focus, and have already guest-blogged here, please let me know of your interest and we'll try to see if there's room in this one or the next one (likely in LA in December). If you are interested in being a non-presenting commentator, let me know about that too--we can usually accomodate a couple of those too. And while I'm at it, I should mention that I'll be co-ordinating the schedule of bloggers for the first half of the year very soon.  If you're a prawf (or rising prawf) who's been blurking, or know of someone suitable who's interested, please get in touch with me via email.

Last but not least: Happy Chanukah and Chag Sameach to our Jewish readers.

Posted by Administrators on December 22, 2008 at 03:54 PM in Blogging | Permalink | Comments (2) | TrackBack

Just Wondering

What would your reaction be if you found out that some law professor had written and published two articles at the same time taking diametrically opposed positions on the same question or issue or set of problems?  In other words, to take a rather simple example, say a prawf decided to write one article all about how the Endangered Species Act was unconstitutional as applied to small populations of animals within a single state under the Commerce Clause and a second article about how the Act was completely constitutional under the Commerce Clause when applied to similar populations of animals.  Then he or she sent the articles off to different sets of law reviews and accepted publication offers for both of the articles.  The articles then came out at roughly the same time.  The articles made no reference to each other.  Would you think the author had acted unethically?  Would you think less of the author?  The arguments?  Why or why not?  (note: I don't plan on doing this myself, but I am thinking about having a character in a piece of fiction do it, and I just wonder what people in the academy and elsewhere would say about it).

On an entirely different note, I have a piece up at the Beacon Press blog Beacon Broadside about how I hate it when people send holiday cards with pictures of their kids on them but no pictures of themselves.  The original title was: "I Know Your Kids are Cute, But What Do You Look Like?"

Posted by Jay Wexler on December 22, 2008 at 02:43 PM in Deliberation and voices | Permalink | Comments (12) | TrackBack

Sunday, December 21, 2008

Is choice free only in a cocoon?

There is much I agree with in Rick Garnett's post about Dahlia Lithwick's concern over what she sees as a selective concern over the rights and autonomy of health care providers, sometimes overweening (the new Bush regulations on conscience protection) and at other times oppressive (mandates to provide certain information to patients seeking abortion), that is, in her view, consistent only in its resistance to the accommodation of the choice to abort.

Let me be deliberately provocative.

So what?

Honesty compels me to admit that, since I first wrote a consideration of the constitutional right to choose an abortion as part of the Harvard Law Review's Developments issue on the constitutionalization of rights loosely affiliated with the family and taught the case on innumerable occasions, I have never found any of the various defenses of Roe v. Wade very convincing. But that's not pertinent here. It is the law and there is a rather broad constitutional right to choose to have an abortion in the United States.

But that does not, it seems to me, imply that the government need adopt policies that will encourage that the right to choose be exercised in any particular way. It is one thing to recognize an individual right to choose to have an abortion and quite another to require that another individual provide one. It is one thing to recognize a right to choose and quite another thing to say that the government may not mandate the provision of certain information that it believes to be pertinent to the exercise of that choice. We have the right to believe and say and even do all manners of things that government nevertheless tries to discourage.

One does not have a right, I think, to be free from challenge to the moral presuppositions underlying abortion rights or to be told that, at least for some people, choosing to abort has adverse consequences. While we can argue about these messages, it is not obvious to me that they are any less tendentious and disputed than messages delivered by the government in a variety of other contexts.

Of course, this does not mean that Lithwick has to support the particular policies that she complains of. She may believe that the state has no business reminding those seeking an abortion of any particular view of the moral stakes of abortion (other than, by silence, to imply that there are none - or at least none with which the larger community need be concerned) or that the view that a decision to abort may have unfavorable consequences is just wrong.

Lithwick sees an inconsistency. She argues that "[t]he freedom and autonomy of doctors who oppose abortion are protected by law" but that "those willing to provide abortions can be forced to deliver a state message with which they completely disagree."

But aren't two different types of rights at stake? The first is the right of a professional to refuse to provide a service that she regards as morally wrong - to refuse, as someone once said of capital punishment, to to be "in on a killing." The second is the right of a professional to be free of regulations that require disclosures which she believes need not be made. The former seems to be a claim to be free from an extraordinary imposition on conscience. The latter is certainly significant but about as unique and extraordinary as package inserts and informed consent laws.

Of course, the questions get more complicated as the conscientious objection is to matters that most of us assume are morally unobjectionable (e.g., birth control) or the right to be asserted is against a private employer rather than universal legal compulsion.

I am sure that the various arguments thought to underly a constitutional right to abort are relevant here. I can imagine this is so, although someone who actually believes that there is such a right could make that case better than I. My point is that the existence of a right, in and of itself, does not imply anything about the propriety of the policies that Lithwick objects to or render them inconsistent.

Posted by Richard Esenberg on December 21, 2008 at 11:41 PM in Religion | Permalink | Comments (9) | TrackBack

Fed Soc Faculty Conference

Prawfs planning on attending the AALS Annual Meeting in San Diego next month might also be interested in the Federalist Society's (11th Annual) Faculty Conference.  More info is available here.  Although the website says "invitation only", I'm assured that invitations will be extended to all law professors who write to erin.sheley-at-fed-soc.org.

Posted by Rick Garnett on December 21, 2008 at 03:34 PM in Rick Garnett | Permalink | Comments (0) | TrackBack

Ron Kirk, Hilda Solis, and the Hope for a Grand Bargain on Trade

To the relief of free trade fans like myself (who feared the nomination of Xavier Becarra), but to the ire of anti-globalization constituencies, Obama nominated Ron Kirk, mayor of Dallas, as U.S. Trade Rep. As I noted in an earlier post, the appointment of trade rep is Obama's single most revealing appointment, because Obama's position on trade policy is so obscure.

I have no desire to open up an exchange of epithets among those who support and oppose tariff-free trade. The topic obviously inspires heated emotion on both sides, but I doubt that anything new will be said on the topic on this blog. Instead, I want to ask a question: Does Obama's simultaneous appointment of Ron Kirk as USTR and Hilda Solis as Secretary of Labor signal the possibility of a grand bargain on trade? The two nominees have diametrically opposed views on trade agreements. But rather than signaling schizophrenia in the Obama cabinet, the dual choices might indicate that Obama is going to take Barney Frank up on the grand bargain that he has been long offering -- "fast track" authority for negotiating reduction of tariffs in exchange for protection of domestic labor against the shock of cheap imports. The protection could take several forms -- high levels of transition relief, job training, longer and higher levels of unemployment insurance, or, controversially, enforcement of ILO standards -- but the basic idea would be secure votes for tariff reductions (Kirk's job) by supporting compensation to those who lose out from freer trade (Solis's job).

It seems to me that such a bargain is critical for trade liberalization. Bush likely failed to advance tariff reduction, because Republicans refused to offer protections for labor in return for votes on fast track authority. With the current focus on economic stimulation, the political atmosphere has never been better for a bill to give labor a cushion against the costs of tariff reduction. As a matter of justice and prudence, such a deal seems both just and prudent: Trade increases wealth, so why not compensate those who lose from trade with some of the bounty? Since the losers will likely have a veto over any effort to liberalize trade, compensation is good politics as well as moral economics.

If Obama can secure such a deal, then he will be the second Democratic President (the first was Clinton) to advance the agenda of free trade as or more effectively than the Republican Presidents who are that agenda's most vocal champions.

Posted by Rick Hills on December 21, 2008 at 11:24 AM | Permalink | Comments (3) | TrackBack

Saturday, December 20, 2008


As the Washington Post reported, the Bush Administration on Thursday "granted sweeping new protections to health workers who refuse to provide care that violates their personal beliefs".  Dahlia Lithwick (like many others) is not pleased.  In her view, the solicitude for health-care workers' conscience rights (or, as many in the press insist on putting it, "conscience" rights) is inconsistent with a South Dakota law that requires abortion-providers to tell women, before performing an abortion, that they are about to "terminate the life of a whole, separate, unique, living human being" with whom she has an "existing relationship."  She says, "[r]eading the new HHS regulations together with the mandatory South Dakota 'script,' one can only conclude that those same health providers who cannot be compelled to perform an abortion may nevertheless be compelled to deliver misinformation about it."

I blogged about the South Dakota law here.  I agree, to be clear, that no one ought to be required to "deliver misinformation."  The question, I suppose, is whether there is a truth to the matter whether an unborn child is a "whole, separate, unique, living human being".

For now, though, my question is more prosaic:  Why the "scare quotes" around "conscience" in so many places? 

Emily Bazelon contends that we should "refrain from calling this 'the conscience rule,' as the administration urges.  It's really a rule about why your conscience is better than my conscience."  This is not convincing.  The conscience of a person seeking an abortion, or Plan B, or some other procedure or product is not burdened by the refusal of a particular person to provide it.  (This is not to say that such a refusal might not cause inconvenience and even hardship.  Nor is it to say that the rule protecting health-care workers' conscience-rights is, all things considered, justified.)  

But again, why the "scare quotes" in so many stories about these regulations?  Is there some doubt as to whether some workers do object, in conscience, to providing certain products or services?  Is it that objections to, say, Plan B simply don't count as "conscientious" ones?  (Would we put "scare quotes" around "conscience" if the dispute involved, say, a print-shop owner who did not want to produce hateful flyers for Fred Phelps?)  It strikes me that it would be more helpful, honest, and civil to oppose the regulations on the (reasonable) ground that those whose consciences are (rightly or wrongly) burdened by providing Plan B should have to rely on self-help (i.e., they should have to find a new line of work) and not on legal protections.

Posted by Rick Garnett on December 20, 2008 at 12:58 PM in Rick Garnett | Permalink | Comments (21) | TrackBack

The limits of "rot"

Over at the Marquette University Law School Faculty Blog, my colleague Jessica Slavin cites to a post by Frank Pasquale on Concurring Opinions which relies, to some extent, on a comment in response to a postthat I wrote on Prawfs. It's a small blogosphere after all.

There is much to be said in response to the Pasquale post (which I agree is provocative) but I want to focus on one part that Jessica highlights:

Can anyone doubt that our economy is exposed (with each passing day) as more Sicilian in its “winners’” casual acceptance of fraud, more Russian in its oligarchic tendencies, more Brazilian in its inequality?

Well, I think I can.

It is a natural human tendency to overemphasize whatever happened yesterday. But let's take the financial meltdown as somehow emblematic of "our economy." Over the past few months, I yet to read a convincing argument (as opposed to an assertions) that the problem was a result of fraud (although there certainly was some as there will always be)or deregulation.

One can always imagine regulation along the lines of "don't do that again" which will seem wise in hindsight. The one bit of proposed regulation that might have helped (reining in Freddy and Fannie) was opposed by the Democrats who, in the words of Barney Frank, did not want "to raise safety and soundness as a kind of general type of shibboleth." Another type - tightening lending standards - would have been dead on arrival.

Pasquale wants to say that a market economy does not recognize the ways in which wealth is commonly created. That's not true. Markets (which are always a product of some form of regulation - they require rules) permit interaction for the creation of wealth by voluntary exchanges between participants.

The results may not always be what we would like them to be and they are influenced by the existing distribution of wealth and talent. But, in the American context, no one really suggests that market forces should determine everything. Even over the last 30 years, government's share of GDP has continued to rise, albeit only slightly.

Inequality is, I think, a problem, but lack of wealth can be a larger one. Pasquale quotes Patrick S. O'Donnell's recitation of a a number of tenets of Catholic social teaching in response to a post of mine over at Prawfsblawg.

I disagree with none of them, although I think Patrick's restatement of the idea of subsidiarity is incomplete; it is not simply about which level of government should do some thing. 

But to accept these aspirations is not to accept any particular way of accomplishing them. Nor does it imply any particular tradeoff between conflicting goals. To move substantially in the direction of a more statist society (at least as concerns the economy) would, I think, be a mistake that would disserve these principles.

Cross posted (with modifications) at the Marquette University Faculty Blog.

Posted by Richard Esenberg on December 20, 2008 at 10:51 AM | Permalink | Comments (6) | TrackBack

Eric Posner versus the Heritage Foundation...

... on whether the TARP funds can be used for an auto bailout. The Heritage Foundation says "no," Eric says "yes," and the whole question turns on whether a car company is a "financial institution."

All of us who teach statutory construction, take note: This is a great classroom problem.

Posted by Rick Hills on December 20, 2008 at 09:22 AM in Rick Hills | Permalink | Comments (1) | TrackBack

"Which side are you on?"

Search me. One reason I chose to be an academic is to gain the right to choose my positions a la carte rather than from the prix fixe menu of Left-Right vacuities that dominate the punditocracy and blogosphere. So, for instance (to pull a random example out of thin air), it strikes me as inane to have a general ideological position on "unions," as if one should endorse or condemn together the baseball players' union, the corrections officers union in California, the Teamsters, or District Council 37. Likewise, it strikes me as absurd to think that, because I worry about the latest round of contracts between the public sector and New York City, that I am hostile even to public-sector unions in general. When Jerry Wurf organized the park workers against Robert Moses in the 1950s, that was a victory for justice against tyranny. When Wagner signed Executive Order 49 recognizing the right of the public-sector unions to engage in collective bargaining, that was a magna carta for labor. I think that it perfectly possible -- indeed, easy -- to hold these views and also believe that public-sector unions held a troubling veto over fiscal policy in the last round of CBA negotiations. Bloomberg was right to believe that '05 was the time to sock away money in a rainy day fund. That he surrendered so entirely on getting public employees to shoulder a bit of their health insurance premiums or work a bit longer strikes me as a small failure of democracy, if democracy means that one narrow constituency should not dominate the city's public life.

To respond to such a worry by angrily denouncing Wall Street types as greedy bastards who make too much money is a colossal non sequitur. Of course, Wall Street makes too much money: Indeed, they are another narrow constituency that tends illegitimately to dominate NYC life. (The bond underwriters tend to be the worst of the bunch in terms of excessive influence). Why would anyone think that worrying about District Council 37 somehow implies approving of Wall Street?

My hypothesis: Some academics have joined a sort of intellectual's trade union in which two positions -- disapproval of District Council 37 and love of Wall Street -- must somehow be bundled together as negotiating items. That sort of bundling of positions makes perfect sense in a two-party system as a means of simplifying ballots for busy voters: After all, Duverger's Law requires us to choose one of two sides. But it is senseless in an academic blog. When it comes to thinking and writing, we academics should put our union cards in our shoes and all be shameless scabs, choosing whichever intellectual position happens to yield the greatest payoff.

Oh, and just to state the obvious: Yes, Brian, we NYU law profs are overpaid. Bloomberg definitely should not give us a raise.

Posted by Rick Hills on December 20, 2008 at 09:09 AM in Rick Hills | Permalink | Comments (15) | TrackBack

Friday, December 19, 2008

Altria v Good and SCOTUS' battle over preemption

SCOTUS's decision in Altria v. Good, handed down on Monday, is great news for friends of federalism. The Court held that the federal cigarette labeling act does not preempt private actions to enforce Maine's Unfair Trade Practices Act (MUTPA) against cigarette manufacturers who advertise that their cigarettes are less dangerous because they are "light" on tar. The 5-4 decision indicates that the tussle over preemption remains one of the most divisive issues before the Court and that Roberts and Alito (both dissenters in the 5-4 vote) are firm votes for preemption of state tort claims.

There is much to be said about the opinion, but I will highlight only two aspects that make Altria an especially important victory for federalism.

(1) As in Bates v. Dow Agrosciences, Justice Stevens managed to get a majority to resurrect the Rice v. Santa Fe Elevator presumption against preemption -- a presumption that most observers thought had been put on life support in Riegel v Medtronic. Scalia's majority in Riegel had simply ignored the presumption, finding the Preemption Clause in the Medical Devices Act to be unambiguous, but it is not obvious to me what made the preemption clause in Riegel so much clearer than the analogous clause in Altria. I guess that no legal concept is quite so ambiguous as the notion of "ambiguity."

(2) The Court based preemption on the formal proof required by state law rather than the effects of litigation on defendants' behavior. The majority's "express preemption" analysis turned on the fact that fraud claims in general required no proof of any harm to "health." (The plaintiff argued that the cigarettes' tar-reducing qualities would not, in fact, deliver low quantities of tar because consumers' predictable behavior -- e.g., compensatory smoking -- would result in precisely the same dosage of tar). Of course, such fraud lawsuits would predictably have big effects on cigarette advertising, given that there is no obvious way for tobacco companies to alter consumer behavior. But effects of state law on federal regulatory interests are apparently not sufficient to justify preemption of state law, if the state law is not aimed at producing such effects.

Of course, we federalism supporters are still waiting for the other shoe -- Wyeth v Levine -- to drop. I am guessing that the Court will rule for Wyeth based on the FDA's declarations favoring preemption -- but I'd be delighted if the Court defied my expectations.

Posted by Rick Hills on December 19, 2008 at 11:07 AM in Rick Hills | Permalink | Comments (1) | TrackBack

Common courtesy in the criminal justice system

I've been reading up about courtesy summonses -- a topic of interest among some lawyers in my state.  In South Carolina, "a person charged with any misdemeanor offense requiring a warrant signed by nonlaw enforcement personnel to ensure the arrest of a person must be given a courtesy summons."  (If you want to take a gander at it, it's here on page 4, Section 22-5-110, and here, Section 22-5-115.)  A courtesy summons is issued by a magistrate or municipal judge in lieu of an arrest warrant and is based on an affidavit sworn out by a person who is not an investigating law enforcement officer.  The affidavit must establish probable cause to believe that the recipient of the summons committed the misdemeanor.  These summonses enlighten He-Who-Is-Summoned about the charges, but cannot be used to execute an arrest.  He-Who-Shall-Not -Be-Arrested may then be tried.  If convicted, he will be arrested and booked.  If he is found not guilty, he sidesteps the arrest and booking process and heads on home. 

From what I can tell, a courtesy summons is a nice way to tell someone that he has wronged you in a non-felonious, albeit criminal, way.  Southerners are, if nothing else, very polite.  These summonses provide the folks seeking them a voice; they provide the folks receiving them a modicum of dignity.  I've heard that the courtesy summons was initially conceived as a means for serving teachers in classrooms, but they are regularly used to serve "blue bloods" (see, e.g., this article) and other VIPs (see, e.g., this article).  The process also cuts out the middleman -- the police officer -- by allowing Joe Citizen to submit his own sworn statement to the judge for a probable cause determination. 

This process has a King Solomon-ish air to it, but I wonder:  Does it promote peace or encourage discord?

Posted by Susan Kuo on December 19, 2008 at 01:34 AM in Criminal Law | Permalink | Comments (4) | TrackBack

Thursday, December 18, 2008

A Jew on Christmas

Dahlia Lithwick has a fun piece on Slate about which Christmas specials Jewish parents do and do not allow their children to watch.

Our three-year-old does not like to watch TV all that much, so we have not had this particular problem. But she has been trying very hard lately to understand about this holiday that we do not celebrate but that so many other people (including two of her best friends) do celebrate. Her curiosity is further piqued because her Jewish preschool is across the street from a church with a Christmas tree lot and a giant inflatable Santa. She is not upset by this--no "Why can't we have lights on our house" or "I want Santa to come to my house" (at least not now--come see me when she is eight). But she has been asking a lot of questions. Of course, my wife and I both try to be sanguine about the fact that Jews are a minority in American society and, as such, are going to be surrounded by many of the majority's practices. So, at least for now, I do not feel as if we are struggling too much with how to explain it all to our daughter.

Finally, just because it's fun and I agree with Dahlia that this is the best Jewish song of the season:

Posted by Howard Wasserman on December 18, 2008 at 04:56 PM in Culture | Permalink | Comments (2) | TrackBack

What's Next?

Is the current phase of the same-sex marriage movement over?  More specifically, have advocates for marriage equality lost this round?

I worry that the answer might be yes.  California's Prop 8 is a major blow to the marriage equality movement.  Of course, the California Supreme Court still has to rule on the legality of Prop 8, and my sense is that the court could conceivably invalidate it.

But Prop 8 is not really an aberration.  By my count, at least forty-five states have some kind of law banning same-sex marriage (see here).  Some of these laws can--and I think will--be overturned or repealed.  But most of them will remain on the books for the foreseeable future.

So what's next?  Is it time for the marriage equality movement to regroup and reconsider its strategies?

In the meantime, here's hoping for a victory in Iowa. 

Posted by Zak Kramer on December 18, 2008 at 12:28 PM | Permalink | Comments (2) | TrackBack

Ashcroft v. Iqbal: When courses come together

I am fortunate enough to have a shmackage (Civ Pro, Fed Courts, Civil Rights, Evidence) that is precisely what I was looking for when I went on the market, coherent (although some contest the presence of Evidence) and overlapping, and tied to at least a portion of my scholarly agenda. The nice thing about such a combination is that you occasionally see a case that brings all these subjects together. Enter Ashcroft v. Iqbal, argued before SCOTUS last week, on whether highest-level federal officials, such as the Attorney General and the Director of the FBI, can be sued for damages for the post-9/11 round-up and detention policies that were carried out in a discriminatory way by lower-level officials.

The oral argument (summary and summary) was a walking Civ Pro/Fed Courts/Civil Rights syllabus.

Civ Pro, Pleading: The primary focus of the argument was on the sufficiency of the complaint. This focused much of the argument on figuring out just what the pleading standards are after Bell Atlantic v. Twombly, whether there is or should be heightened pleading in some types of cases, what "plausibility" means, how detailed allegations must be, and whether the plaintiff must identify the evidentiary basis for facts at the pleading stage. The justices' lack of understanding of, and dislike for, the historical purposes of notice pleading was palpable. There was some discussion of how some allegations were contested by government counsel and how that affects the analysis of the sufficiency of the complaint (correct answer: It doesn't, since facts should be taken as true). At one point, Justice Breyer even admitted not remembering certain things about civ pro that must have been on "day four" of his class, way back when. I have a feeling the Court may do more tinkering with pleading standards, at least in some civil rights cases where busy high-level officials are involved.

Civ Pro, Discovery: Several justices expressed concern for untrammeled discovery and the need to use pleading to limit discovery, which was the main theme of the government's argument. Especially when dealing with highest-level executive-branch officials. This is why there was so much discussion of the president of Coca-Cola, a similarly busy official, implicated in individual wrongdoing. Justice Stevens got in a nice dig and a laugh at the government's too-busy-to-be-deposed argument, noting it was not an issue when he wrote Jones v. Clinton. But clearly the Court, as it did in Bell Atlantic, is on the warpath over discovery and looking to use the pleading rules as a way to limit discovery.

Civ Pro, Judicial Discretion: The bad guys in much of this conversation are the district court judges who oversee and control discovery and who, in the mind of many on SCOTUS, simply cannot be trusted to wisely wield the discretion that the Federal Rules vest in them. There were many comments from the bench about the power of a "single district court judge" over discovery and how the single judge was making a discretionary interlocutory (i.e., effectively unreviewable) order. Some of these comments were reflective of the concerns many 1Ls have that "judging" really gets done only at the appellate and SCOTUS levels and that there is something wrong with vesting the trial judge with discretion and no immediate review. The oft-noted fact that none of the justices had much trial experience, from the bar or the bench, was telling.

Civ Pro, Affirmative Defenses: The government officials' qualified immunity defense was rejected by the district court and not appealed. The officials spent much of the argument trying to squeeze the qualified immunity defense into the pleading requirements--essentially arguing that more was required in the complaint for it to state a claim because of the defense of qualified immunity. This, of course, conflates elements with affirmative defenses, qualified immunity falling in the latter category.

Civil Rights, Qualified Immunity: The immunity defense underlay much of this argument. Most of the Justices seemed to be looking for a way to get high-level officials out of cases, even if qualified immunity was not directly presented here.

Civil Rights/Fed Courts, Bivens: Although not presented directly, one way for the Court to get out of this mess is to find that these Bivens claims against high-level policymakers are not cogizable because the post-9/11 crisis environment out of which the claims arise and these officials' busy schedules constitute "special factors counseling hesitation" to be balanced by a court, common law style, against recognizing the Bivens claim. I am not advocating this position, which I think has some real problems (such as leaving plaintiffs without any remedy against these officials). But I think this path would do less overall damage than the Court rewriting FRCP 8 and 9(b), as it seems inclined to do.

I am thinking of assigning this argument to show the confused current state of pleading law. It would be far more interesting than reading yet another case. I just wonder if it is too bound up with Bivens and § 1983 to be comprehensible to them.

Posted by Howard Wasserman on December 18, 2008 at 11:34 AM in Current Affairs, Law and Politics | Permalink | Comments (4) | TrackBack

The Republic Sit Down Strike: A Response to Joseph Slater

Returning the favor (although I go by Rick).

I certainly recognize - and even occasionally thrill to - the use of protest to achieve a desired political result. While the occupation of private property is always problematic, I would not have had the same reaction if the outcome was successful pressure placed on Republic or amendment of the WARN Act.

But I don't thrill to the notion of what was, in some ways, a secondary - if not "boycott" - action. As I understand it, BOA had nothing to do with whether Republic was evading the WARN Act or was just unable to comply with it. (If it did , we'd have another question.) Yet the political pressure was brought to bear - not on Republic - but on BOA and largely because it is participating in the ill advised TARF program and it's debtor is in the home town of the President-elect, who felt compelled to weigh in.  

The underlying principle here seems to be that if you can do what it takes to wrest cash from the Man in whatever guise he takes, it's all good. If your case is sympathetic, then we ought to be happy about whatever route you take to get over.

If you share the cosmology of Ratio Juris blogger Patrick O' Donnell, that makes sense to you and there is probably nothing I can say to persuade you. Patrick sees economic efficiency as some morally inferior alternative to whatever notion of justice that the community might prefer.

I am all for good renumeration for the families of what we might call "workers." Before I decamped for the academy, I was GC for a privately held firm that offered the same profit sharing formula to every full time employee (and had almost no part time workers). I was raised by  a unionized firefighter. You will never convince me that, whatever their flaws, that first responders are not the salt of the earth. I am so blessed  to have another Christmas (and I hope many more) with one of the best.

But here's the thing. Facts matter and, it seems to me, that free markets produce more wealth - for everyone - than unduly constricted ones. Ignoring that fact is not an act of moral superiority. It is not,as Patrick would have it, a bold claim for alternative values. If he doesn't believe me, he should come to Milwaukee and I'll take him around to some of the taverns in the neighborhood.

This doesn't mean that I endorse entirely unfettered markets, I am not a libertarian and consider myself more of a (kind of groovy) social conservative than an economic one (although by most commonly accepted taxonomies, I am both).

But fortuitous political pressure on a lender to do something that it would not have otherwise done is no cause for celebration. I have a hard time seeing who is served by that.

Posted by Richard Esenberg on December 18, 2008 at 01:37 AM | Permalink | Comments (8) | TrackBack

Wednesday, December 17, 2008

Public Employees & the Recession

New Yorkers, I have gradually learned, refer to the Recession of 1973-75 in hushed tones of fear as the time that NYC nearly became Cleveland. Will this recession be just as bad? Since last spring, the Independent Budget Office has been predicting dire tax losses from rising unemployment, falling property values, and a frozen credit market. The fiscal effects are masked by the limited recession-elasticity of the City's taxes. (Distress sales, for instance, temporarily boost revenue from the transaction tax). But everyone's bracing for disaster over the next two years.

All of which leads one to ask whether the public employees -- especially, the uniformed services -- will be re-negotiating their extraordinarily generous deals. In particular, Bloomberg and Patterson have been trying to put the "20 and out" benefit (retirement at full pension after 20 years) on the table. Back in the bad old days of 1973-1975, Felix Rohatyn was able to induce Victor Gotbaum, head of District Council 37 to accept wage and benefit concessions to save the City. Will we see a repeat of history a quarter-century later?

Don't count on it. Bloomberg has been notoriously ineffective at reining in the public employees' power. District Council 37 and the uniformed services have won wage increases that far outstrip inflation and private-sector pay. Under the Obama Administration, they have far greater hopes than they did in the 1970s of getting the Feds to foot the bill of the City's largesse. Recent history seems to confirm the old Wellington-Winter hypothesis that public sector unions are the ultimate Olsonian group, enjoying both the insiders' power of political organization and the power of an economic cartel.

I suspend judgment on the normative question of whether public sector unions' power is a good or a bad thing. Perhaps this power should be treated as a welcome vestige of genuine working class power in an increasing inegalitarian society. As a pure matter of positive prediction, however, there is less room to debate: The wage and benefits package that the public sector has managed to extract will, if left unaltered, bankrupt the City.

Posted by Rick Hills on December 17, 2008 at 10:27 AM in Rick Hills | Permalink | Comments (31) | TrackBack

What's Your Shmackage?

Most readers will know this already, but for those who don't, here's a little inside information about the terminology we law prawfessors use in our day to day lives: we use the word "package" to refer to the set of classes that we are teaching or will teach in any given year.  So, for example, the associate dean might say to a professor: "What package are you looking for next year?"  Or during an interview, the appointments chair might ask a candidate: "What's your ideal package?"  Or a disaffected faculty member might complain over drinks with a colleague: "God, I hate this place.  I have such a crappy package!"

I have a couple of questions about this "package" thing.  First, can't we come up with some other word for it?  I don't know, maybe I'm just too sensitive about irritating-sounding words.  For example, in the book I just finished writing, I tried to replace the word "scrutiny," which I hate, with the word "fluffernutter," which is fun, everytime I had to talk about free exercise doctrine.  My editor, however, got a massive migraine reading the thing and made me change it back.  (oops: pointless and gratuitous link to my blog about my book).  I hate using the word "package" to refer to my courses.  Does anyone have a better word?  I don't, really, but for better or worse, I'll just use the word "shmackage," as in package-shmackage, for the rest of this post.

My other, slightly more serious, question is: Does anyone have a particularly interesting shmackage that they'd like to share?  Like, one that is completely different from the shmackage that you had or thought you were going to have when you started teaching?  Or one that appears to be completely incoherent but really isn't?  My shmackage this year is environmental law, intro to US law for LLMs, and the first amendment.  Though my shmackage differs from year to year, it usually has some combination of environmental law and first amendment/church-state law.  These areas of law intersect a little here and there, but basically they are completely separate and entirely different.  I love teaching both of them, though, and I'm glad they're both part of my shmackage.  One thing I like about the shamckage is that with first amendment law I get to talk about abstract principles and the framers and ultimate reality, etc. etc., and with environmental law I get to indulge the lawyer geek in me and talk about section 9479-B-3-little c-romanette iii, and fun stuff like that. 

Lastly, does the fact that many prawfs might end up with either unexpected or incoherent shmackages shed any light on whether we should be making such a big deal during the appointments process for entry-levels on what their ideal shmackages are?  When I was on the market and someone asked me about my ideal shmackage, I always felt like saying that my ideal shmackage was whatever shmackage would be most likely to get me the job.

Posted by Jay Wexler on December 17, 2008 at 08:25 AM | Permalink | Comments (7) | TrackBack

Tuesday, December 16, 2008

The Republic Sit-Down Strike: A Response to Richard Ensberg

Sure, I could have left this in the comments to Richard’s post, but since I’m a guest-blogger too, I’ll make a separate post. Plus, I’ve always wanted to be a part of some "A Response To . . ." debate.

Richard writes:

Neither BOA nor any other bank can survive by making, not merely a poor - but an insane "loan" in response to political pressure. In a free economy, businesses fail and various stakeholders - shareholders, employees and creditors - will be hurt by it. We can't expect banks - even those who have had an influx of federal capital - to insure against it.

The Republic employees acted boldly and certainly benefited from being from the President-elect's hometown. Maybe (although I would oppose it) the government should guarantee obligations under the plant closing laws. But shifting the costs to a firm's lender based upon who can and cannot exert the requisite political pressure seems irrational and even dangerous.

One response to his post questioned whether the loan was indeed "insane," given that this seems to be in part a "run-away shop" issue.

More broadly, though, I don’t think this should be seen primarily as a "make a bank lend money" protest. The workers were protesting that the employer did not pay benefits the workers felt they were owed under the WARN Act and under their union contract. When the employer argued it couldn’t pay these benefits because it didn’t get a loan, the workers then focused on the bank. That was smart, practically and politically. But the protest was first and foremost about rights the workers had or reasonably believed they should have under an employment law and their contract with their employer.

Now, perhaps under the law as currently written, the employer’s financial plight would have allowed it to avoid these obligations. WARN is famously riddled with exceptions and is problematically toothless. Also, as debates over the auto industry’s fate remind us, bankruptcy courts can be part of a process in which labor contracts are rewritten. So, perhaps the legal claims by the workers would have failed. And of course even if the workers had good legal claims, it’s not legal to occupy the employer’s property.

Still, many of us remember with some sympathy a history of workers asserting their conceptions of rights against employers – rights that the law did not at the time recognize, but later did. As I cautioned in my initial post, I wouldn’t over-read this incident as being the harbinger of a new New Deal’s worth of labor militancy. But if workers want to press the point, by peaceful, disciplined protest, that they deserve a better deal when companies go under (or are claiming to go under), I’m for it. And if they succeed in their protest, yeah, I’ll celebrate it.

Posted by JosephSlater on December 16, 2008 at 03:09 PM in Workplace Law | Permalink | Comments (0) | TrackBack

Our Schmittian Bailout Bill?

Eric Posner has a very nice post on Volokh asking whether the Treasury department has authority to bailout the auto industry after Congress rejected the bailout bill. The answer turns on the right interpretation of the term "financial institution" in the Troubled Assets Relief Program ("TARP").

As Eric notes, the text of the statute is unhelpful. Looking at analogous statutes, Eric makes a case that 'financial institution' in 31 U.S.C. 5312(2)(T) is defined to include "a business engaged in vehicle sales, including automobile, airplane, and boat sales." But he dismisses this application of the "pari materia" principle as question-begging -- rightly, in my view -- and instead emphasizes the purposive point that "how Congress understands 'financial institution' or any other term depends on what it is trying to accomplish" and that Congress left the details of who ought to get aid up to Treasury: Automakers'"financial health clearly matters to the resolution of the financial crisis, which is what TARP is for," such that "[w]ith Chevron deference to the Treasury’s reasonable interpretation, this would not be a hard case."

The post is reminiscent of Adrian Vermeule's point that we have a "Schmittian administrative law." There is no point in searching for a "legal" answer -- in the sense of parsing the text or legislative history for either a formal or purposive answer to the question. instead, one simply has to decide which decision-maker has the power to decide when the rule runs out -- that is, determine the shape of the "exception," in Schmitt's term.

Whom do we trust? Courts or Treasury? Does not the question posed in this context with these particular agencies -- i.e., a financial emergency being managed by bureaucrats who appear to be earnestly wonky in their efforts to get it right -- answer itself?

Posted by Rick Hills on December 16, 2008 at 02:48 PM | Permalink | Comments (1) | TrackBack

Self-Metrics and Blog Metrics Using Google Reader

If you're still reading blogs the old fashioned way, by separately accessing your "favorites" on a regular or irregular basis, you sure are missing out!  The days when you had to understand what an RSS feed was in order to subscribe to blogs are done thanks to user-friendly applications like Google Reader.  You can sign up to receive headlines using Reader (from the "more" tab at the Google home page), and each of the many blogs you may want to casually follow appears in a "gmail"-like inbox when you log into Google.  You see the various headlines for the blogs in your in box, and can click on a post to read the first few lines and decide if it's worth the time.  If it is, you can open the blog itself with little difficulty.   For another call to join the Reader bandwagon, see this post at the Conglomerate; for a skeptic's view, consider Michael Risch's post from this blog.

One of the more amusing aspects of Reader is the "Trends" feature, which you can use to obtain sometimes revealing information about your own readership habits.  Your trend statistics can help capture information about which blogs you find most helpful -- by revealing the percentage of posts on particular blogs you access.  Although they aren't updated as regularly as some other "law blogs," both Leiter's Law School Reports and Moneylaw, for instance are at the top of my list in terms of percentage of posts read (29% and 27% respectively).  By contrast, although I've read more posts on the gossip site above-the-law than any other blog, I've read just 8% of that site's total posts.

One obvious impact of increasing readership of blogs through feed aggregators is that the traditional measures of blog influence (page views and visits) may no longer pack the same punch.  I've been trying to find an easy way to generate a ranking of blogs by Google Reader subscriptions, but so far have had no luck. It seems the way to do this is to "add" a subscription in one's account, which reveals the information about how many subscribers there are to a particular blog.  For instance, of the blogs in my subscriptions, the subscriber numbers reveal the following information:

Above the law (9,277 subscribers)

WSJ Law Blog (7,280 subscribers)

Volokh Conspiracy (3,012 subscribers)

Prawfs (725 subscribers)

Concurring Opinions (722 subscribers)

Tax Prof (647 subscribers)

Leiter Law School Reports (481 subscribers)

The Conglomerate (480 subscribers)

Is there a faster, or better way to generate such information?

Posted by Geoffrey Rapp on December 16, 2008 at 01:46 PM | Permalink | Comments (0) | TrackBack