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Friday, January 30, 2009

I'm glad I wasn't asked to moderate this panel discussion.

David Ignatius' moderating role in this Davos forum was not an easy one to perform. Without getting into the merits of the underlying debate topic, I'm curious to hear from those who have moderated difficult panels about how they tried to control things to avoid panelists from leaving in a huff...and I guess I'm also interested in hearing from those on panels that failed regarding why they thought the panels failed!

Posted by Administrators on January 30, 2009 at 03:35 PM in Deliberation and voices | Permalink | Comments (0) | TrackBack

Thinking institutionally

The often disappointing (in part because Bobos in Paradise indicates an ability to do better) David Brooks has a column up that connects with, among other things, interesting work by our own Paul Horwitz (and also with a number of conversations on this and other law-blogs).  A taste:

We are defined by what life asks of us. As we go through life, we travel through institutions — first family and school, then the institutions of a profession or a craft.

Each of these institutions comes with certain rules and obligations that tell us how to do what we’re supposed to do. . . .  In the process of absorbing the rules of the institutions we inhabit, we become who we are.

New generations don’t invent institutional practices. These practices are passed down and evolve. So the institutionalist has a deep reverence for those who came before and built up the rules that he has temporarily taken delivery of. . . . 

The rules of a profession or an institution are not like traffic regulations. They are deeply woven into the identity of the people who practice them. . . .

Institutions do all the things that are supposed to be bad. They impede personal exploration. They enforce conformity.

But they often save us from our weaknesses and give meaning to life.

I think there's a lot to this.  (We might think of the legal profession, and the academy, as "institutions" in the sense Brooks is using the term.)  A few years ago, in a paper about "expressive association," I wrote:

[W]e are who we are, and flourish to the extent that we do, because of the associations in which we’re “nested” and by which we’re educated.  [T]hese soul-making associations are not simply vehicles for self-actualizing choices by autonomous monads.  They might be that, too, but they are more than just that.  That is, while it is true that we speak and express ourselves through associations, we are also spoken to and formed by them and by their expression. . . .

[I]t is not just that we express ourselves by choosing to associate; we who do the choosing are products, at least in large part, of our given—not chosen—“nest of associations.”

Posted by Rick Garnett on January 30, 2009 at 10:12 AM in Rick Garnett | Permalink | Comments (0) | TrackBack

Thursday, January 29, 2009

Against bipartisanship II: Procedure or Substance?

As predicted in my anti-bipartisan screed, media and GOP sources are blaming Obama and the Democrats for the failure of bipartisanship that simply left House GOP no alternative but to vote unanimously against the stimulus bill and that, looking at Sen. Kyl's comments, may leave Senate GOPers no choice but to do the same next week. The substance of the comments is the same: Obama and congressional Dems are not acting in a bipartisan manner because all they do is listen to GOP ideas, allow votes on them, and accept some of them (but not all, because Dems fundamentally disagree with Republican economic theories), but they do not implement all (or even most) of what the GOP wants and instead go with the proposals that the Dems like. These criticisms of Obama fit very well with my earlier statement that bipartisanship is what happens when the other side agrees with everything I want to do.

On further thought, though, I believe we actually might be able to resurrect some notion of bipartisanship by tracking this issue onto the ancient divide between procedure and substance. What renders the debate over bipartisanship incoherent is the failure to distinguish procedural bipartisanship from substantive bipartisanship--betwen bipartisanship in the process of lawmaking and bipartisanship in policy outcomes. Procedural bipartisanship means both parties participated in an open process, had an opportunity to be heard, exchanged ideas, perhaps made some compromises on provisions, had good-faith discussions, allowed the minority to be heard, and allowed minority ideas to be raised and considered in the legislative process. I think we often do and should have procedural bipartisanship--and from everything I have read, we are having it on the stimulus package.

Substantive bipartisanship means the outcome is one that both parties support. We rarely have true substantive bipartisanship, at least outside of divided government. At some point there must be a vote and a decision. And if the majority is unwilling to adopt all of the minority's governing principles and ideas and vice versa, a "bipartisan" result is impossible or at least unlikely. Of course, if everyone agreed on the appropriate principles to apply and the appropriate policy measures to enact, they would not be members of different parties. So when I argued earlier that we should not care about bipartisanship, should stop talking about, and should stop trying to attain it, I had substantive bipartisanship in mind.

Unfortunately, we as a culture do not care about or speak in terms of process, only substance, so the yammering about bipartisanship will always be about substantive bipartisanship. Regardless of how open the process was and how willing Obama was to listen, in the end, because he pushed for and got a bill that adhered mostly to his Democratic principles and not to Republican principles (that, by definition, he does not accept), he did not act in a bipartisan fashion. But the expectation that he essentially should have governed like a Republican when he is a Democrat is precisely what makes substantive bipartisanship so ridiculous, meaningless, and ultimately distracting from the broader goal of enacting the best public policy.

It is this talk that must stop.

Posted by Howard Wasserman on January 29, 2009 at 04:02 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

Whither the culture wars?

A whole lot of folks must have been out of the office yesterday because I am quoted in a Foxnews.com article on political clashes between the Catholic Church and the Obama administration. Although I am not sure that it quite captures my remarks to say that "Catholic politicians have been excommunicated in recent years for not supporting positions consistent with the church's teachings," I did note what seems to me to be an increased insistence upon on at least certain Bishops on faithfulness to the Church's position on life issues (as opposed to postions generally) and a willingness to enforce that through denial of the Eucharist and cited, for context, New Orleans Archbishop Joseph Francis Rummel's excommunication of three segregationist politicians in 1962. 

Just how aggressive the Church should be in insisting that Catholic politicians follow Church teachings is a topic that has been debated for as long as I can remember (a period that has come to be distressingly long) and I am not sure that I can add anything to on this cold January morning. I am a confirmed opponent of privileged status for public reason and a staunch supporter of political moderation by the church.

But I do think that the Freedom of Choice Act presents the possibility for political total war. The key, it seems, is whether there will be 41 votes in the Senate to block it and how aggressively the administration and pro-choice movement pushes for it. Whatever the outcome, a concerted effort to pass FOCA will energize the pro-life movement in a way that may help GOP candidates in 2010.

At a larger level, potential controversies over abortion, assisted suicide and stem cell research and certain other biomedical developments can't be dismissed as "childish things" or "wedge" issues designed to take our eye off the economic ball. The Catholic Church supports (often wrongly, I think) much of what might be characterized as a "liberal"position one economic issues, yet insists on a view of the human person that is inconsistent with what seems to be the consensus view of political liberals. This difference will continue to be contentious because it matters.

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

Posted by Richard Esenberg on January 29, 2009 at 10:28 AM in Religion | Permalink | Comments (4) | TrackBack

Against bipartisanship

A modest proposal that is going to sound like a bit of a screed:

We need to stop, once and for all, talking about "bipartisanship." Drop the word and the concept from the political vocabulary. Stop treating it as something desirable or essential. And especially stop talking about it as intrinsically valuable as an end in itself (often more so than substantive governing). Like too many other terms used in modern politics ("judicial activism," any one?) bipartisanship has no substantive meaning, functioning instead as a pointless and distracting sound bite that the media likes to throw around, but that does nothing but confuse the conversation. Actually, the analogy works: If judicial activism is nothing more than a decision with which you disagree, then bipartisanship is what happens when the other party agrees and goes along with what you want to do.

For starters, the term effectively tags all policy disputes with the pejorative "partisan," suggesting petty disagreements. But the parties diverge on policy issues because each party is built around some governing philosophy; there is a reason someone becomes a member of one party or the other. When Democrats and Republicans disagree, it is not simply due to party affiliation simpliciter; it is because their beliefs and approaches to governing are different.

Giving everyone the benefit of the doubt, the entire House GOP caucus did not vote against the stimulus package simply because they are Republicans and the President and House majority are Democrats. They voted against it because they adhere to a set of economic principles and policies that are different than those of the President and the majority (in simplest terms, business and corporate tax cuts v. government deficit spending). The House GOP wanted to enact a stimulus package to revive the economy, but they wanted to enact one they believed would work--that is, one that followed their economic principles. Why should they be expected to vote for a policy that does not adhere to their principles?

At the same time, Obama did not fail to accept all the GOP requests (e.g., dropping the payroll tax credit for non-income-taxpayers) not because they came from Republicans, but because they ran contrary to the economic ideas he wished to implement. Why should the Democratic President and the Democratic majority draft a proposal that adheres to Republican principles?

Given this genuine divide, negotiations and compromise only go so far and it is foolish to demand otherwise. Obama and House Democrats removed some spending and added some tax cuts to the package during legislative bargaining. But it was not enough to garner any Republican support. Why? Because Republicans fundamentally disagree with the core, more-or-less Keynesian economic principles underlying the bulk of the Obama proposal. They wanted even more tax cuts and even less spending--in other words, they wanted a package that looked more like what would come from a president and House majority that shared GOP economic ideas and principles. Which, it seems to me, is perfectly fine. But this President and this House majority have their own principles, principles that won handily at the ballot box two months ago. They wanted a legislative package that adhered to their economic philosophy At some point, one set of ideas must prevail; typically, at least in a time of unified government, it will be those held by the legislative majority and the President. Which, again, is perfectly fine.

The problem is that we have fetishized bipartisanship into something more important than governing. Obama is going to get the public policy he wants and that he believes will successfully kick-start a sick economy. (And I hope it works, for a variety of reasons). But it is going to be seen (and reported in the media) as a "defeat" because he was not able to achieve the outcome in a "bipartisan" manner. At some level, of course, this is his fault by making it such a public priority to get the minority on board. The result is a game that ignores the really important point--enacting effective policy. All the talk instead focuses on the pointless, unnecessary process of seeking bipartisan approval and of "working together to help the American people." And the story after-the-fact is that Obama failed to do so.

The minority can (and I would suggest did here) take advantage of the bipartisanship fetish by demanding more and more concessions to try to get a bill that looks like what they would create in the majority. Failing that (because they never were going to get that), they can and did vote against the package, on legitimate policy grounds (as well, probably, as some political/electoral calculation). But the bipartisanship fetish means they can go on TV and wave the flag of bipartisanship to say "hey, we were willing to work with the President, but he refused to work with us, so we were forced to vote against it, but it was his fault." Again, of course, "working with us" seems to mean implementing more of our policy preferences and governing the way we want him to, even if it runs against the ideas he wants to pursue and that got him elected. Alternatively, Obama and the Democrats could do the same thing when the minority fails to join the compromise--take to the airwaves and accuse the minority of acting in a partisan way and being "obstructionist" and not working for the "best interest of the American people." Again ignoring that the departure is precisely over differences of views as to what is in the best interests of the American people.

Just stop wasting time and energy. George Bush had it right (a sentiment I rarely utter), at least where a president has strong legislative majorities that want to work with him. Govern the way you believe best and go for what you believe you have the political and popular support to pull off--do what you (and your legislative allies) believe is in the best interests of the public. But now own the policy--if it works you get the credit, if it fails you get the blame. And the other party (with its competing philosophy) eventually gets a crack at governing. Also, stop accusing the minority of being partisan (thus somehow in the wrong) when it disagrees with and does not support your policies. As for the minority party, offer your own proposals, explain why what you offer is better, and see if you can get the public to support you now (public opposition could slow down the President and his legislative majority--e.g.., social security privatization in 2005) and in the next election cycle. But do not complain that the majority failed to "reach out" or that the majority did something wrong by not adopting all your ideas and policies.

What this sounds like, of course, is a parliamentary system. The executive has a legislative majority that can largely do as it pleases until at some point the party wears out its welcome and is replaced in power. The minority, or opposition, party has been operating a "shadow" government and offering its own ideas (and challenging the majority's ideas) all along. And we expect the opposition party to, you know, oppose. There is no expectation, much less demand, for bipartisanship or the appearance of bipartisanship.

This is not to say that negotiation and compromise, including compromise across party lines, never should be part of the political equation. The president may be of a different party than the majority in one or both houses. The legislative majority may be much smaller. The president may have lost the support of even his own party in the legislature (what happened, up to a point, as to S-CHIP during the 110th Congress). And the Senate, with its supermajority requirements, is a different animal. The minority sometimes may decide it is to its benefit to come along.

But consensus across party lines and broad, multi-party legislative (as opposed to popular) support should not be treated or discussed as an end in itself. AWe all would be better off if we stop unthinkingly treating it as if it were.

Posted by Howard Wasserman on January 29, 2009 at 09:30 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Wednesday, January 28, 2009

Media ethics and law-prof blogs

I am quoted today in an op-ed in the Daily Tar Heel. (H/T: My former colleague Joel Goldstein). The op-ed discusses the motion filed by former Durham District Attorney Mike Nifong, the main culprit in the Duke lacrosse mess, seeking to dismiss the § 1983 actions against him on absolute prosecutorial immunity grounds (and without seeing the motion, I have argued previously that he has a pretty strong argument). The op-ed, clearly not coming close to understanding what prosecutorial immunity is all about, argues that Nifong should not have immunity because by "withholding DNA evidence, Nifong clearly deprived the defendants of their right to due process." Um, yeah, but the point of immunity is that does not matter, because other policy concerns trump. AndI did not read the piece as arguing that prosecutors should not have immunity (an arguable point), only that Nifong should not.

Anyway, I am identified as a Saint Louis University law professor and described as saying that Nifong only has immunity for those things he did as an advocate for the state. One problem--I never spoke with anyone at the Daily Tar Heel at any point. (Actually, I suppose a second problem is that I no longer teach at SLU, so there is a pretty glaring factual error there that would get them nailed in a newswriting course). The "comment" attributed to me was something I wrote in one of several posts, here and at Sports Law Blog, analyzing the players' lawsuits against Nifong, Duke, and others.

So, my question--Did the authors of the piece act appropriately (as a matter of journalistic practice) in attributing a comment to me without identifying it as something I wrote on a blog and attributing the blog? Is it OK for reporters to make it sound instead as if we had had a conversation? I am not suggesting that journalists should not read blogs as part of their reporting or that they should not report what they see written here. Indeed, one purpose of blogging is to be part of the broader public conversation beyond the academy, so having newspapers report on what we write here goes a long way to making us part of that conversation. My question is strictly how journalists should describe the source of a comment when they get it not from an interview, but from something the source has written.

Posted by Howard Wasserman on January 28, 2009 at 12:13 PM in Blogging, Current Affairs, First Amendment, Howard Wasserman, Sports | Permalink | Comments (7) | TrackBack

Tuesday, January 27, 2009

Junior-faculty juggernaut

In Dan Patrick's immortal phrase, you can't stop the Brooklyn Law School VAPs; you can only hope to contain them. And if one of them is entering a writing competition, everyone else had better look out. (Or as Keith Olbermann would say, they will beat you like a rented goalie!)

First Deborah Widiss won the AALS Scholarly Papers contest with her forthcoming article in Notre Dame Law Review about judicial interpretation of statutes that override prior judicial decisions.

And now Ben Trachtenberg has won the ABA's Ross Essay Contest with this essay about the costs of the criminal justice system's overuse of incerceration.

Brooklyn's VAPs are en fuego!

(I watched a LOT of SportsCenter in the '90s.)

Posted by Michael Cahill on January 27, 2009 at 09:51 PM in Article Spotlight | Permalink | Comments (3) | TrackBack

Who's "Right" on Crime?

In his NYT column yesterday declaring the era of conservative dominance begun by Ronald Reagan to be over, Bill Kristol offered the following eulogy for that era:

"Conservatives have been right more often than not — and more often than liberals — about most of the important issues of the day: about Communism and jihadism, crime and welfare, education and the family. Conservative policies have on the whole worked — insofar as any set of policies can be said to “work” in the real world. Conservatives of the Reagan-Bush-Gingrich-Bush years have a fair amount to be proud of."

I'm not sure exactly what Kristol means by being right about "crime" but if he is invoking the claim made by conservative politicians starting with Wallace, Nixon, and Reagan in '68, that liberals were dangerously out of touch with voters concerns about crime I wish to dissent.  This claim is and was unfair to both liberal and conservatives.  Liberalism helped launch and sustain the war on crime, and conservatives do not deserve exclusive blame for the resulting hyper-extension of the worst kinds of "big government" carried out in its name.

The historical record shows that liberals saw early and with alarm that rising crime in the 1960s was a threat to their New Deal coalition based in the big metropolitan areas.  LBJ declared war on crime and launched a full scale presidential commission to explore its causes and solutions.  While he imagined the war to be a front in his war on poverty, he began the pattern of massive federal investment in state law enforcement that continued through the 1970s (ironically Reagan largely ended that flow, while investing in other strategies),

The liberal Warren Court, often blamed for handcuffing the police, actually helped promote a national focus on improving local law enforcement, courts, and jails, that probably should be seen as having made possible the enormous expansion of the prison populations that became visible in the 1980s (by pumping up the systems capacity to arrest and convict).  During the 1970s and 1980s, liberal federal judges started imposing 8th Amendment demands on state prison systems, a move that socio-legal scholars like Mona Lynch (in her forthcoming book on Arizona's prison system) and Heather Schoenfeld (in her dissertation on Florida's prison system) suggest probably provoked states to launch major prison construction initiatives.

The war on drugs is the most liberal policy fixation of all.  The public hysteria about crack in the 1980s was animated not by simply by racist fear of black users, but at least as much by misguided concerns for their children(see the article in today's Science Times on a study finding that harm to children born to active crack using others has turned out to be less severe than alcohol and more akin to the harm cigarette smoking).

If  Bill and the other editors of the Weekly Standard were to invite me over to lunch, I would try to convince them that the war on crime has led to a series of results that no true conservative could love including:

  • The creation of a vast population of prisoners, ex prisoners, and soon to be imprisoned again ex offenders who constitute an enormous and growing burden on the tax payers and who are largely locked out of productive labor.  (On prisons see my post on John Stewart's hilarious rant about mass incarceration last night on the Daily Show)

  • The formation of powerful rent seeking public employee unions that have influenced state spending priorities in many states.

  • The production of crime victims as a privileged class of citizens with special rights to influence the legal process.

Indeed, with conservatives out of power, and Obamacrats too savvy to appear soft on crime anytime soon, it may fall to conservatives to lead us out of governing through crime and the culture of control it has led to.

Posted by Jonathan Simon on January 27, 2009 at 03:48 PM in Criminal Law | Permalink | Comments (8) | TrackBack

David Shipley: Calling Rick Hills to the NYT?

Not sure how I missed this earlier, but I've just seen that William Kristol is stepping down from his somewhat short-lived perch at the NYT op-ed page. Here's the news story. This makes sense. Kristol wasn't terrible on the NYT page, but he was rarely the source of both true and surprising views that Brooks and Safire often are/were for the rightish side of the aisle.

So, David Shipley, as you and Andrew Rosenthal determine who should fill that slot, and assuming you want someone to provide some intellectual and political diversity to the page, let me offer a half-hearted nomination: Rick Hills. I'm clearly less selfish than Jeffrey Goldberg is vis-a-vis Ross Douthat, but that''s probably explained only by the fact that Douthat works nearby Goldberg; Rick's a couple thousand miles from me. (And witness Goldberg's willingness to throw Seth Lipsky into the flames!).

Picking Hills to be the new NYT columnist will introduce to the nation a voice that sparkles with insight and good humor, erudition and purportedly some degree of self-proclaimed anti-intellectualism...perfect for a columnist!

Posted by Administrators on January 27, 2009 at 02:33 PM in Current Affairs | Permalink | Comments (6) | TrackBack

Law Review Submission Season

Has it begun?  It's probably a bit early for Redyip, the great bird of the gods of Zarcon, to send its glorious signal.  But have folks begun submitting?  And have reviews started reviewing?  I've heard rumors in the past that the submission season has crept up to late January.

Posted by Matt Bodie on January 27, 2009 at 02:19 PM in Life of Law Schools | Permalink | Comments (7) | TrackBack

The "Seinfeld" of law-review articles

That's how I like to describe my latest paper, "Attempt by Omission." It's about nothing!

To clarify, the article is about imposing criminal liability on someone who neither performs any act nor causes any harm. It's not unusual for criminal law to punish action without harm (attempt, or more generally, "inchoate" liability) or harm without action (omission liability), but it might seem odd or even troubling to punish where there is neither action nor harm. This article finds that crimes of "harmless inaction" or "inchoate omission" do exist: many of them, in fact. More controversially (to me, anyway; I'm still a little ambivalent about this), the article asserts that such crimes are at least sometimes normatively justified. To quote the abstract: "However unlikely or dubious the legal math may seem, it turns out that zero action plus zero harm can, does, and should sometimes add up to a crime." The article also offers some thoughts about how the inchoate-omission case study might illuminate broader issues regarding how to craft criminal-law doctrine.

Of course, the topic also relates to "Seinfeld" in that the show's final episode involved a prosecution of the characters under a "Good Samaritan" law, i.e., a law imposing omission liability. Such laws might fall into my inchoate-omission category, though only if they allow prosecution regardless of whether the failure to help actually led to any resulting harm.

I guess "Much Ado About Nothing" would also fit as a title ... but then, that title could work for a lot of law-review articles.

Posted by Michael Cahill on January 27, 2009 at 12:53 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Health care magnet?

Last January, I published a piece in WI Interest, the journal of the Wisconsin Public Policy Research Institute, arguing that the drafters of a plan called Healthy Wisconsin — or any similar program purporting to enact a universal entitlement to health care in a single state — could not constitutionally impose a residency requirement, creating the risk of health care migration and the associated problems of adverse selection. I did not seek to explore whether such migration would occur or who would migrate. I speculated, in fact, that the migrants would not be poor people, but those who are older or high risk.

Healthy Wisconsin is a plan that would fund universal health care for all state residents by imposing a payroll tax on all state employers. There is disagreement about the amount of the tax but the most frequently mentioned numbers seem to range between 16 and 18%.

WPRI has now published a study evaluating the probability of such migration. I have not yet carefully examined it, but I continue to believe that such migration (and the Supreme Court precedent that protects it) is a serious obstacle to state efforts to enact some form of universal health care and, for that matter, a variety of other initiatives that states may undertake in their once honored roles as “laboratories for democracy.”

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

Posted by Richard Esenberg on January 27, 2009 at 10:59 AM | Permalink | Comments (3) | TrackBack

The holiday formerly known as Good Friday

The Madison-based Freedom From Religion Foundation has sent a letter of complaint regarding the  recognition of Good Friday as a campus holiday by fifteen of the state's sixteen technical college, apparently pursuant to a collective bargaining agreements with instructional staff. The FFRF argues that closing on Good Friday (not just calling the off day "Good Friday') is inconsistent with a 1996 decision of the Western District of Wisconsin invalidating a state law that mandated the closing of public facilities for the purpose of worship.

The prior decision seems distinguishable to me given the statute's explicit reference to closing for a religious purpose. It's hard, in light of that, not to see the statute as violating current Establishment Clause doctrines.

These cases tend to turn on some ascription (often fictional) of a religious or secular purpose to the state.  FFRF will have to show that the recognition of the Good Friday holiday has a religious purpose or amounts to an endorsement of Christianity. It may well lose because a court will conjure some secular justification for recognition of the holiday, e.g, that the day also known as Good Friday has become a traditional opening to the spring vacation. 

My own view is that there is no sense to this. Spinning some secular justification for what is a religious holiday is unseemly, at best, and disrespectful of the religious tradition in question, at worst. The colleges are recognizing that this is a day with religious significance for most of its employees and is responding to their desire to have that day off.

My own view is that this ought not to raise Establishment Clause concerns. While it may raise an issue regarding accommodation of the religious holidays of other faith traditions, it does not advance or endorse religion in a way that ought to be constitutionally prescribed. A non-Christian suffers some burden because a state facility is closed on a day when the majority is observing a religious holiday, e.g.,  annoyance at the unavailability of certain services or confirmation of one's minority status.

But this seems to me to be indistinguishable from the harm that religious adherents claim when the state, for secular reasons, acts in a way that is inconsistent with their beliefs and practices. It cannot be prevented in an even handed manner and we ought not to try

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

Posted by Richard Esenberg on January 27, 2009 at 10:49 AM | Permalink | Comments (0) | TrackBack

The Shaming of John Thain

In this morning's NYT, one of my favorite writers there, Clyde Haberman, goes to town on John Thain, the Merrill Lynch CEO who's been recently deposed.  I understand the sense of frustration and anger; indeed, I'm a shareholder in Bank of America, which bought ML late in 2008 and has since declined precipitously. So it's no surprise to see popular anger (like Clyde's) over reports stating that Thain spent $1.2 million

to redecorate his office — purchases like an $87,784 area rug, a $68,179 19th-century credenza, a $35,115 commode and an $18,468 George IV chair. The rug alone cost the equivalent of nearly two years’ pay for the average worker in New York State

As Haberman writes, "If anyone should blush, you’d think it would be Mr. Thain." But Haberman wants the Thains of the world to be held up to scorn and shaming, despite my efforts to persuade him otherwise. My recent arch-nemesis appears to agree:

"Folks like John Thain are perfect candidates for public shaming on billboards and in the press," Professor Calandrillo said. “Their good name is what allows them to succeed in business. Once that is stripped, they have little left.” Others in business, he added, may then think twice about their own actions.

Elsewhere in the Times, however, we also see this bit of reporting on Thain's apparent misjudgments. First, he's stated his plan to reimburse the company for the renovation, whose costs include some other rooms besides his office. Second, and more importantly, it appears the story about Thain's distribution of bonus money is more complicated than reports initially suggest. 

Another point of controversy was Merrill’s decision to pay discretionary bonuses to its employees just a few days before the sale to Bank of America closed — considerably earlier than such bonuses were paid out in years past. In the memo, Mr. Thain appeared to challenge Bank of America’s suggestion that Merrill alone was responsible for the earlier-than-usual bonuses. He said the timing, composition and size of the bonuses were all “determined together with Bank of America.” In the interview, he said that Bank of America even mandated that more of the bonus be paid out in cash rather than stock. Bank of America has countered with its version of the bonus affair, telling The Financial Times: “We never said we didn’t talk with them about it. But, in the end, it was their decision and they informed us of it.”

All this is to say that we'd be better off waiting patiently until all the facts are found before rushing to extra-legal judgments culminating in "stocks" and cyber-pillories. There's always time for cool recrimination later...

Update: Over at Co-Op, Danielle Citron notes with greater specificity the dangers of even the privately-instigated shaming punishments, alerting us to the fact that shaming the Thains of the world can be "particularly potent in our networked age: online and offline shaming can ruin reputations, produce privacy invasions, and lead to offline stalking and physical violence."  She develops that argument in much greater detail in a very interesting piece entitled Cyber Civil Rights, which appeared in the BU Law Review a few months ago and which you can download here.

Posted by Administrators on January 27, 2009 at 09:43 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (3) | TrackBack

Monday, January 26, 2009

A Question for Readers

Brian L. links to a paper by a group of law professors, writing through the Center for Progressive Reform, raising concerns about Cass Sunstein's likely role as the head of OIRA.  I was interested in this sentence, which the authors offer up in the course of criticizing Sunstein's skeptical views about the precautionary principle: "It is difficult to think of a single public health or environmental threat that with the benefit of additional research has not proven even more dangerous over time."

What do you think, readers?  Can you supply the authors with any examples?   

Posted by Paul Horwitz on January 26, 2009 at 08:28 PM in Paul Horwitz | Permalink | Comments (20) | TrackBack


So, I'm in the process of trying to get some blurbs for my book, Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, and it's stressing me out.  Blurbs, of course, are those little quotes from famous people on books, telling you that the book is worth reading.  My editor has sent out galleys to maybe 15 people, half academics and half people who are not academics, and now I just sit and wait and see if anyone says anything nice.  I wonder if it would be less stressful if you received rejections from authors who have been requested to give blurbs ("Unfortunately, we receive many requests for blurbs each year and can only respond to a select few") but I have a feeling that either I'll get a nice blurb or I just won't hear anything back at all.  In this way, it's sort of like interviewing with the University of Michigan at the AALS.

Anyone have any tips for getting blurbs, or good stories about getting or giving blurbs, or anything to say about whether you look at blurbs when you're deciding to buy a book.  And is there anyone out there who would like to contribute a blurb for my book?  I don't have any more galleys to send you, but I can vouch that the book is "A wild ride.  Like no other book you've ever read" and "Will make you cry with tears of joy in between convulsions of laughter so raucous they will wake the neighbors" and, as my wife (who is no big fan of anything I write) has offered to contribute, "A little better than I expected.  I only barfed once."

And does anyone know Sarah Vowell's address?

Posted by Jay Wexler on January 26, 2009 at 09:48 AM in Jay Wexler | Permalink | Comments (2) | TrackBack

Sunday, January 25, 2009

Conversation for a Sunday morning

Via TNR, JamesBio Magazine presents a complete ranking of every Beatles song, # 185 (Revolution 9, only played forward, I presume) to # 1 (A Day in the Life). I agree with four of the Top 5 (yes on Hey Jude; Golden Slumbers medley; I Am the Walrus; and Day; not so much on She's Leaving Home).

Let the conversation begin . . .

Posted by Howard Wasserman on January 25, 2009 at 07:21 AM in Music | Permalink | Comments (3) | TrackBack

Law Enforcement and Corrections: A Message from the New Administration

The new White House website is attracting some attraction (some of it from bloggers comparing it to the previous version which, in all fairness, was made eight years ago). Given Jonathan Simon's statement, that no American politician has ever gotten elected on a platform of being soft on crime, it is interesting to state a few things about the new administration's criminal justice policy.

First, the list of topics on the agenda does not seem to include crime control or law enforcement in any particularly visible way.

Second, these issues have been located under "civil rights".

Third, the priorities seem to have shifted toward rehabilitation and re-entry, at least on paper. An excerpt from the agenda page:

  • End Racial Profiling: President Obama and Vice President Biden will ban racial profiling by federal law enforcement agencies and provide federal incentives to state and local police departments to prohibit the practice.
  • Reduce Crime Recidivism by Providing Ex-Offender Support: President Obama and Vice President Biden will provide job training, substance abuse and mental health counseling to ex-offenders, so that they are successfully re-integrated into society. Obama and Biden will also create a prison-to-work incentive program to improve ex-offender employment and job retention rates.
  • Eliminate Sentencing Disparities: President Obama and Vice President Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.
  • Expand Use of Drug Courts: President Obama and Vice President Biden will give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.

How much these national priorities will be reflected in California in the wake of the failed Prop 5? It may well be that the tendency to release prisoners and eliminate parole, supported by Governor Schwarzenegger as a budgetary emergency measure, may actually reflect some of these priorities.

(cross-posted: http://californiacorrectionscrisis.blogspot.com)

Posted by Hadar Aviram on January 25, 2009 at 02:08 AM | Permalink | Comments (0) | TrackBack

Friday, January 23, 2009

Harmless error, unconstitutionality, textualism, and the oath kerfuffle

Two (typically) good Balkinization posts on the oath controversy, one from Jack Balkin and one from Mike Paulsen. Paulsen is trying to explain why the misstated oath does not matter. But he makes the argument in the course of distinguishing what the Constitution requires from the consequences of failing to abide by the text.

I and others have noted that no one takes the presidential oath precisely as written, because everyone adds his name and "so help me God" and omits "(or affirm"). And if those additions/omissions do not matter (a point on which everyone agrees), we have to figure out why transposing the word "faithfully" matters. Paulsen argues, and I think I agree, that the question is whether the deviation (whether addition, deletion, or alteration) "matters," whether it "detracts" from the substance of the oath; presumably that question focuses on whether the deviation from text changes the meaning of the oath. Adding a name or "so help me God" does not; neither does omitting "(or affirm)" (which would make the oath incoherent); and neither would inserting random mumbo-jumbo in the middle of the oath. Transposing a word also does not change meaning--"faithfully" still is an adverb modifying "execute." Replacing a word might not matter if it did not change meaning (say a Jewish President said "Hashem" rather than "God"), but it would matter if it did change meaning (Paulsen uses the example of replacing "faithfully execute" with "probably execute").

Here is where Paulsen is doing something different. Most people (myself included) argue that because the transposition did not change meaning, just as adding "so help me God" does not change meaning, the Constitution was not violated by the oath at the Inauguration. But Paulsen argues that it did violate the Constitution (because the focus is purely on the text and the way the oath always is inconsistent with the text); in fact, every President since Washington has, formally, violated the Constitution by adding "SHMG" and their names. But, because meaning has not changed, the unconstitutionality (the "constitutional error," if you will) is harmless; it does not matter and does not require any remedy.

So in asking whether transposing "faithfully" renders the oath invalid, the question is not whether the oath was unconstitutional; it was unconstitutional, as has every other oath since 1789. The question is whether the unconstitutionality matters. Interesting take that matters for the broader Originalism/Textualism debate (which is what Balkin was taking on in his post), although not necessarily for putting the current oath nonsense to rest.

Posted by Howard Wasserman on January 23, 2009 at 04:02 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (3) | TrackBack

The Difference A Day Makes

wrote yesterday that President Obama should wait a day (or more) before acting to rescind the so-called "global gag rule" on abortion, rather than acting on yesterday's anniversary of Roe v. Wade, because doing so would reject the treatment of abortion as a symbolic rather than a substantive and serious issue, would deprive both sides of the culture wars with the traditional symbolic victory (or defeat) that they use to continue fund-raising, and would help restore abortion to the status of a serious issue that demands discussion and is above the politics of symbolism.  Apparently either great minds think alike or I have friends in high places.  The Wall Street Journal reports:

President Barack Obama will issue an order restoring U.S. funding for international family-planning groups involved with abortion. But he chose not to do so on Thursday, the anniversary of Roe v. Wade.
President Obama was breaking with the tradition set by his recent predecessors to make an abortion-related order on the anniversary of the Supreme Court ruling, another example of his attempt to support liberal policies he believes in while trying to defuse emotional political debates.

If there are any newspaper types reading the blog, I have an op-ed on this subject I'd be happy to sell to you.  In any event, interesting news, and gratifying to me.

Posted by Paul Horwitz on January 23, 2009 at 01:52 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Legislating the Curriculum: The Podcast

At AALS this year, I was part of a great panel about incorporating legislation and regulation courses into the first-year curriculum.  We did a terrible job publicizing the panel -- and the speakers' names weren't included in the main packet.  In the event that you have an interest in the subject, the panel's podcast is available here.  Here was the description and the list of speakers:

Law schools are beginning to explore a variety of ways in which to integrate statutory and regulatory interpretation, and/or statutory and regulatory process, into the first year curriculum. This panel will critically explore several different models that schools have adopted to date: courses that focus on legislative process and statutory interpretation (Legislation); courses that focus on statutory and regulatory interpretation (LawMaking or LegReg); courses that use a specific subject matter as a vehicle for teaching statutory and regulatory interpretation and/or process; and courses that use the legal research and writing component as a vehicle. Panelists will focus primarily on what each model has to offer in terms of substantive content and pedagogical potential. Panelists will also address both challenges in teaching such courses and obstacles in getting such courses adopted in the first year curriculum, and offer some insights for overcoming such challenges and obstacles. One model that will not be discussed is a course that focuses primarily on administrative law and agencies.

Brudney James J. - Speaker
Driesen David M. - Speaker
Feldblum Chai R. - Moderator
Leib Ethan - Speaker
Mc Donnell Brett H. - Speaker
Stephenson Matthew C. - Speaker

If you need a copy of my recent Journal of Legal Education article on the subject, let me know.  Chai Feldblum set up an on-line resource at http://www.law.georgetown.edu/lawmaking/.

Posted by Ethan Leib on January 23, 2009 at 01:42 PM in Ethan Leib | Permalink | Comments (0) | TrackBack

Religion in public places

An unsettled question in the law of limited purpose public forums is whether forums that are made available for broad purposes can exclude religious worship. In a trio of cases culminating in Good News Club v. Milford Central School, the Supreme Court has made clear that religious uses that are within a forum's purpose cannot be excluded because they are religious. This, the Milford school, having decided to make its facilities broadly available for after hours community use, could not exclude the Good News Club, an evangelical Christian group who wished to conduct bible study and related activities for children.

Some have read Good News Club (incorrectly in my view) to recognize a distinction between worship and other forms of religious uses. In this paper (forthcoming in the Mississippi Law Journal), I draw on the theology of Christian worship (which I think broadly applies to many other religious traditions) to argue that worship, while sometimes seen as noncommunicative and deliberative, is, in fact, both and ought not to be excluded from broadly defined forums.

Here's a related question.

Of course, one response to the inability to exclude worship and other forms of religious worship is to close or limit the scope of the forum. That's apparently what happened here (although the proposed use was not worship). A public library that made its facilities available to the community for a variety of uses refused to make it available to someone who wanted to give what I take to be biblically themed financial planning. They were sued and responded by limiting its facilities to library uses.

I wonder (and I do not pretend to know or even have a view on the matter) whether there ought to be a remedy for this. Is it like Palmer v. Thompson in which a sharply divided Court rejected a challenge to a town's decision to close municipal swimming pools rather than integrate them? What if a plaintiff could establish a "discriminatory" purpose? What would that amount to in a case like this? Given that the Court has held that it is viewpoint discrimination to exclude religious uses, does a decision to close a forum for the purpose of preventing a religious use permissible? Or is this case like Locke v. Davey in which the state can refuse to provide a subsidy to religious uses (something which is hard to reconcile with Good News)?

My instinct is that a municipality can close its forum although I am not sure that many will choose to do so. What is less clear to me is how close a question it can be made to be.

Cross posted at Marquette University Law School Faculty Blog.

Posted by Richard Esenberg on January 23, 2009 at 11:50 AM | Permalink | Comments (0) | TrackBack

Is the Obama Administration More Geek Friendly Than Any Previous Administration?

The title of this post was roughly the topic of conversation I had two weeks ago with a reporter from the UK's Times Higher Ed, just as I was headed to San Diego for AALS. Of course, by "geek friendly" I simply mean prone to use more academics instead of folks in the "real world."  At the time, my thought was the Obama administration would have more academics on staff in high positions than the Bush Administration, but it wasn't clear to me that there were more than, say, the number in the Clinton Administration. 

I remembered that Bush 43 had Yoo, Dilulio, Greg Mankiw, Glenn Hubbard and some other economists, as well as Condi Rice. None except Rice was a Cabinet officer and Rice seems like a "discounted" academic b/c immediately prior to her appointments as NSA and SecState, she was in academic administration for seven years. By contrast, and just off the top of my head, Clinton had Reich, Donna Shalala, & Larry Summers in Cabinet offices; moreover, Laura Tyson, Drew Days, and Walter Dellinger had senior non-cabinet positions too. And of course, 42 picked at least one former prof turned judge to SCOTUS (Breyer). I could be wrong; maybe among the lower levels of staff, there were as many academics on the Bush policy team as there were on Clinton's. But Clinton certainly seemed pretty open to having a bunch of profs nearby. The spirit of 43 seems in retrospect comparatively less ... prawfy--at least by my lights.

At least initially, it didn't seem like the Obama administration would be unusual prawfy compared to Clinton's.  But now, with two more weeks past, it seems like there is a decisively more prominent role for academics with 44.  This article in the Times Higher Ed, which quotes me, notes the following:

Robert Gates Secretary of Defence - former head, Texas A&M University

Dennis Blair Director of National Intelligence - professor of strategic leadership, Dickinson College and US Army War College

Lawrence Summers Chair of National Economic Council - former head, Harvard University

Elena Kagan Solicitor General - dean, Harvard Law School

Steven Chu Secretary of Energy - professor of physics, University of California, Berkeley and Nobel laureate

Leon Panetta CIA Director - distinguished scholar, California State; professor, Santa Clara University

Christina Romer Chair of Council of Economic Advisers - professor of economics, University of California, Berkeley

Dan Tarullo Federal Reserve Board - law professor, Georgetown University

Dawn Johnsen Head of Office of Legal Counsel - professor of law, Indiana University

The piece, however, leaves out a number of folks. Again, just off the top of my head:  Trevor Morrison, Alison Nathan, Neal Katyal, Austin Goolsbee, Marty Lederman, Dan Meltzer, Einer Elhague, David Barron, and ... Cass Sunstein. And did I read somewhere that Ken Mack is going to be the staff historian at or near the Oval Office? And that Orin Kerr will be nominated as a late-addition to the bench in a gesture to Republicans for passing the stimulus package? :-)

Of course, having academics around may not be an "unqualified human good."  But putting that aside, I'm curious whether those with a longer memory of history think there was a more prawf-friendly administration than the current one. Is it the case, as Dan Kahan "put it" recently in Spanish, that Durante la campaña, Obama decía que éste era nuestro momento, pues es exactamente lo que piensan los académicos: está hablando de nosotros

Yes we can...but should we?!

Posted by Administrators on January 23, 2009 at 12:51 AM in Current Affairs, Dan Markel | Permalink | Comments (1) | TrackBack

Thursday, January 22, 2009

Great Conference on International Criminal Tribunals

For those of you able to come join us in the Hassee, you should try to clear some time next week on Jan 29-31 to attend an exciting symposium entitled: International Criminal Tribunals: Problems and Prospects. Justice Richard Goldstone will be one of the several distinguished speakers.

More details after the jump.


January 30-31, 2009

The Claude Pepper Auditorium

Florida State University


Thursday January 29, 2009 Pre-Conference Lunch &Talk

12:00 Noon

FSU Law School Rotunda


Attorney David Akerson, FSU Law School Alumnus

“From FSU Law School to the International Criminal Tribunals”



Friday January 30, 2009


9:15 AM               Welcome & Introductory Remarks

                                Professor Terry Coonan, Executive Director, CAHR


9:30 AM               Introduction of Justice Richard Goldstone

                                President Emeritus & Professor of Law Talbot “Sandy” D’Alemberte


                                Justice Richard Goldstone

Former Chief Prosecutor, UN International Criminal Tribunals, the Former Yugoslavia & Rwanda

                                “International Criminal Tribunals: Problems & Prospects”


                                Respondent & Discussion Facilitator

                                Professor Bert Lockwood, Editor-in-Chief, Human Rights Quarterly                        


11:00 AM             Introduction of David Tolbert

                                Professor Sumner “Barney” Twiss, Distinguished Scholar, CAHR


                                David Tolbert, U.S. Institute of Peace

Former Deputy Prosecutor of the International Criminal Tribunal for the Former Yugoslavia & Special Advisor to the UN Assistance to the Khmer Rouge Trials

“Making Complementarity Work: Lessons from Yugoslavia and Cambodia”


Respondent & Discussion Facilitator

Professor Fernando Teson, Tobias Simon Eminent Scholar, FSU Law School


12:30 PM             Lunch


2:00 PM                Introduction of Mark Ellis

                                Monsignor William Kerr, Executive Director, FSU Pepper Center

                                Mark Ellis, Executive Director, International Bar Association

                                “Strengthening the International Criminal Court Through Domestic Prosecutions”


                                Respondent & Discussion Facilitator

                                President Emeritus Sandy D’Alemberte


3:30 PM                Coffee Break


3:45 PM                Introduction of Susana Sacouto

                                Professor Terry Coonan


Professor Susana Sacouto, Director, War Crimes Research Office, American University Washington College of Law

“Victim Participation in Proceedings of the International Criminal Court”


Respondent & Discussion Facilitator

Professor Wayne Logan, Gary & Sally Pajcic Professor of Law, FSU Law School


5:15 PM                Adjourn


7:30 PM                Dinner


Saturday January 31, 2009


9:30 AM               Introduction of Fergal Gaynor

                                Wendi Adelson, Program Director, CAHR


                                Barrister Fergal Gaynor, Irish Centre for Human Rights

Former Prosecutor, International Criminal Tribunals for the Former Yugoslavia  & Rwanda

“Prosecutorial Challenges & Accomplishments of the International Criminal Tribunal for Rwanda”


                                Respondent & Discussion Facilitator

                                Professor David Akerson, Denver University Sturm College of Law


11:00 AM             Introduction of April Carter

                                Professor Terry Coonan


April Carter, Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia

“A View from the Trenches—an ICTY Prosecutor”


Respondent & Discussion Facilitator

Professor Lee Metcalf, Director, FSU Graduate Studies Program in International Affairs


12:30 PM             Lunch


2:00 PM                Introduction of Nicholas Stewart

                                Professor Barney Twiss


Nicholas Stewart, Defence Council, International Criminal Tribunal for the Former Yugoslavia

                                 “A View from the Trenches—an ICTY Defense Attorney”


                                Respondent & Discussion Facilitator

                                Mark Ellis, Executive Director, International Bar Association


3:30 PM                Concluding Remarks & Thanks

                                President Emeritus Sandy D’Alemberte


7:00 PM                Dinner (off-campus)










Posted by Administrators on January 22, 2009 at 04:15 PM in Criminal Law, Current Affairs, Funky FSU | Permalink | Comments (0) | TrackBack

Waiting for the Future: Some Realism about Empirical Legal Studies

“For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” (The Path of the Law, 1897)

No figure was more iconic for the small group of academic lawyers who thought of themselves as “realists” than Justice Oliver Wendell Holmes (1841-1935, Supreme Court 1902-1932) and no statement better exemplified his appeal to them than his bold prediction quoted above.  Yesterday, coming from my second Berkeley Law job talk in as many days in which candidates presented empirical scholarship and statistical data, and having just taught Holmes' essay in a sociology of law seminar, I found myself wondering if this prediction is finally coming true.

There are many ironies about this quote.  First, as Jack Schlegel shows in his great American Legal Realism and Empirical Social Science, just about the only people any where near the realists who could be described as statistically sophisticated were women like Dorothy Swain Thomas.  Indeed, as my colleague Kristin Luker argued in a talk she gave here a couple of years ago, quantitative methods were not as prestigious in the social sciences in the early 20th century, as they would be after World War II, and the often hard work involved in assembling and analyzing statistics was largely left up to women.

Second, hardly any of the published work associated with Legal Realism in the 1920s and 1930s consists of statistical analysis.  As Schlegel argues, most of the Realists were producing scholarship that played by the conceptualist rules of Classical Legal Thought.  They frequently asserted their belief that the legal rules they discussed should be reformed to achieve socially optimal outcomes, but they did so as another variation on the conceptual board, only a few (Douglas, Clark, and Moore on Schlegel’s account) actually worked with statistics.

Third, while Holmes privileges economics, he had in mind and economic science focused on institutions of the labor market that looks more like empirical sociology or labor economics today then most of what has passed under the banner of law and economics in the post-60s law school.

Holmes (or at least his readers) may have conflated two quite distinct ways that law might become statistical; as a tool of predicting judges, and as a method for analyzing optimal social rules.  He opined in the same article that the real business of law was predicting the decisions of judges (and presumably other legal decision makers).  Presumably such prediction could be improved by the development of actuarial methods and their utilization by lawyers and law professors (after all, regression equations are about making predictions).  Indeed, the project of modeling judicial decisions has long been a substantial focus of empirical scholarship on law (especially by Political Scientists) and seems to be enjoying a considerable vogue in law schools. 

Holmes did not make explicit reference to the second meaning of evidence based legal rule fashioning (indeed he had a kind of nihilistic confidence that popular decision making should prevail over expertise, note that having praised master of economics, he was famous for dissenting in Lochner because “this case is decided upon an economic theory which a large part of the country does not entertain.”) but his Realist fans could easily see their own preferred model of law as social engineering celebrated in his bold prediction.  Consider Roscoe Pound:

“The sociological movement in jurisprudence, the movement for pragmatism as a philosophy of law, the movement for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles, the movement for putting, the human factor in the central place and relegating logic to its true position as an instrument, has scarcely shown itself yet in America.  Perhaps the dissenting opinion of Mr. Justice Holmes in Lochner v. New York, is the best exposition of it.”

Unfortunately for the Realists, it was far from clear that the social sciences in 1928 had the tools to answer questions about social optimality  (even assuming the politics of law were such as to permit agreement on the substantive ends against which optimality would be judged).  In fact, there were important studies being done that had considerable relevance to law, including the criminological studies of Robert Park and Ernest Burgess at Chicago, but with the possible exception of sociologist Sheldon Glueck (appointed by Pound to the Harvard Law faculty in the ‘30s), none of the Realists were reading or citing them.  Perhaps the most important academic figure, was pragmatist philosopher John Dewey, who like them articulated a vision of governance and law with an experimental approach directed toward explicit purposeful social ends, and Dewey himself was no more empirically oriented than most of the Realists themselves were.

But the Realists were enthralled with more than a mere idea.  There was one extraordinarily powerful example of what they seemed to be getting at, an example that combined almost all the heterogeneous elements of their aspirations, the abrogation of the law of employers liability (including its defenses) and the adoption of workers compensation in its place during the first three decades of the 20th century. [ fortunately a plethora of outstanding socio-legal historians have plumbed this topic including Lawrence Friedman (article with Jack Ladinsky), Chris Tomlins (article) and John Fabian Witt (book)].  The workers compensation example combined massive law reform, constitutional battles (eventually most state Supreme Courts rejected Lochner type attacks), a triumph of social legislation to enhance the lives of the working classes (although not all workers cheered), and a whole new legal framework based on administrative processes and anchored, yes, in statistics.

For the Realists, and many of their contemporaries this story was one that seemed to confirm the expectation that a major transformation of law and governance was about to unfold and that statistics would play a critical role in it.  But while the administrative state built by the New Deal, shared some of these features (and imitated others, like the supposed “insurance” aspects of social security), it did not in the end presage a transformation in the broader work of law and lawyers along the lines of the Realist vision.

Has the hour of Holmes’ prediction come round at last?  Classical legal thought has remained remarkably enduring as a model for legal teaching. Even today, the law school classroom is dominated by teachers and a teaching model that demonstrates deft and crisp articulation of the axioms and principles that are believed to dominate particular doctrinal fields and to be in play in any particular case. If you interrupt the flow of that articulation to raise questions about the social context in which that case is operating, you will annoy your students (get tenure first, then annoy them).  Holmes wrote in 1897 about "the present divorce between the schools of political economy and law" (when did he think they were married?).  At Berkeley and some other schools this second marriage seems well underway.  This post has gone on too long, but I'm going to try and be more explicit next post about why I think the relationship is more durable this time.

Posted by Jonathan Simon on January 22, 2009 at 01:35 PM | Permalink | Comments (1) | TrackBack

Developing a law faculty: diversify, or build on strength?

I guess I held out pretty well on my New Year's resolution to stop blogging. But now that I've fallen of the wagon, I hope to start posting more again.

Anyway, as a member of my school's appointments committee this year, I've been thinking about how a law school should set its general agenda for hiring. Of course there are a lot of factors to consider, but what I'd like to focus on is how a school can best improve itself as a producer of scholarly writing. (Schools might do this out of a desire to improve the substance of their scholarly output, or a desire to improve their reputation, or both.)

My particular question is this: should a school pursue "breadth" or "depth" in its faculty? Is it better to have a faculty that represents a boradly diversified portfolio of interests, subject areas, methodologies, ideologies, etc., or to have more uniformity along one or more of these axes, thus developing a core strength or a "personality"? If the second of these, should the school simply build on its existing strengths to solidify a comparative advantage, or should it try to anticipate future trends?

The "depth" or "concentration" model makes some degree of intuitive sense, since having several faculty members with overlapping expertise, or using similar approaches, can create synergies that might make their collective work better than otherwise. (On the other hand, modern communications technology might obviate the need for such people to be in the same location.) Certainly some top schools are "stacked" in specific subject areas, and some other schools (e.g., George Mason) seem to have done relatively well for themselves by specializing to some degree. U of Chicago might be an example of the benefits (reputational or otherwise) of having a "personality," though it also seems to me that Chicago's faculty is presently more diverse in various ways than the "Chicago school" label suggests, and maybe after a school has established something like the "Chicago school" identity (real or perceived), it can have a hard time stepping out of its own shadow. And perhaps it's hard to be an "outsider" at a school with a large contingent of people working in a certain area or doing things a certain way, or "insiders" might become a coalition with disproportionate political clout they may not wield to the school's benefit.

On the "breadth" side, a school might specifically feel the need to have "coverage" in a scholarly area (not just a teaching area) where it currently lacks a presence -- not only "we need someone to teach Property," but "we need a law and econ person," or a critical race theorist, or what have you. I sometimes hear people on my faculty expressing views of this general sort, though they don't always agree on what the holes are that we need to fill. Of course, this approach might create positive spillover too, if one person's work benefits from the insights or critiques of someone with a distinct view or approach. (But as an empirical matter, how often do people share their work with colleagues in completely unrelated fields? I observe that happening more with junior faculty than with more established scholars, though I'm sure it varies depending on schools and individuals.)

Do other people have thoughts about this? And do your schools' faculties have conversations about hiring at this level of generality or long-range thinking? I get the sense that for a lot of schools, the hiring process is more ad hoc, responding to (perceived) immediate teaching needs, among other things. Are resource constraints, or the likely levels of disagreement among faculty members about these general issues, such as to make the larger conversation a waste of time?

Also, is either model noticeably better or worse in terms of students' educational experience? Maybe students benefit from exposure to intellectual diversity, but maybe they also benefit by self-selecting into an institution that focuses on the subjects, skills, etc., that they want.

Posted by Michael Cahill on January 22, 2009 at 12:39 PM in Life of Law Schools, Teaching Law | Permalink | Comments (1) | TrackBack

"The Meanings of Religious Freedom in America"

This conference -- "Freedom of, Freedom for, or Freedom From Religion:  The Meanings of Religious Freedom in America" -- should be great.  If you are anywhere near South Bend on Feb. 4 and 5, consider coming.  Panelists and speakers include Mark Lilla, Nick Wolterstorff, Bill Galston, Michael Zuckert, David Campbell, Dan Philpot, John McGreevy, and Mark Noll (and me).  Here's more:

At America’s founding three different and sometimes competing visions of religion in American political life were planted in American soil: freedom of religion, for religion, and from religion. These three distinct conceptions converged at the time of the American founding in the form of the religion clauses of the First Amendment, as well as the many parallel provisions in the state constitutions. Yet Americans do not always agree on the role religion should play in American public life. Should it be excluded from the public sphere or restrictions placed upon its use in public life or is the democratic process weakened and civic life diminished without the full participation of those with strong religious views? What should the relationship between religion and public life be in America? What is religious freedom today: freedom of, for, or from religion?

Posted by Rick Garnett on January 22, 2009 at 12:18 PM in Religion | Permalink | Comments (0) | TrackBack

Abortion, Symbolism, and Waiting a Day

At MoJ, Michael Scaperlanda links to an NPR story suggesting that President Obama may well take the occasion of today's 36th anniversary of Roe v. Wade to reverse some of the previous administration's executive orders on abortion, most prominently the rule prohibiting foreign aid to international family planning groups that also perform or "promote" abortion.  Our estimable co-blogger Rick Garnett has also written about this on MoJ.

Unlike Rick and Michael, I suspect, I tend to favor the President's rescinding the order.  But I'd like to think there is room for one of Obama's classic gestures to the other side in an emotional debate -- a fairly trivial gesture, to be sure, but also a meaningful one.  As the NPR story notes, "it's become something of a tradition" for new presidents to use the anniversary of Roe to issue executive orders on abortion: Clinton did it, and so did Bush 43.  The symbolism is apparent, and in a sense so is the way in which abortion fights are often as much (or more!) about symbolism as they are about substance. 

Rick has followed, even more closely than I have, I'm sure, some of the debates during the campaign over whether a staunch opponent of abortion could vote for a pro-choice candidate or was conversely obliged to vote for an anti-abortion candidate (choose your own terms; that kind of symbolic struggle over nomenclature doesn't interest me).  One of the arguments that was advanced was that many conservative politicians have paid lip service to their opposition to abortion without doing much about it -- indeed, perhaps without wanting to do much about it, lest they go beyond placating their base and face genuine political costs.  (This is, incidentally, one of the many ways that Roe has arguably made the world safe for politicians to use abortion as a symbolic issue without facing serious political consequences for their actions on these issues.) The argument runs that if we are serious about abortion as a moral wrong, we should vote for those candidates who, we are convinced on balance, will actually reduce the number of abortions, whether through social welfare legislation or other more direct means, rather than care simply about whether a politician postures one way or another on the issue.  The contrary argument, which I am not doing justice here but which certainly has strong and thoughtful proponents, is that it would be a wrong in itself to vote for a politician who countenances a grave moral wrong.

I won't take sides here, although I've already noted that I favor rescinding this rule and some others.  I do want to suggest that President Obama, while taking the substantive actions on abortion that he thinks necessary and proper, should consider denying Roe's supporters the symbolic victory of rescinding the rules today.  It makes little difference substantively whether Obama takes action today or waits another day, or week.  But symbolically, it rejects the use of abortion as a symbol, with all the corrosive effects on our politics that it has had. 

Those who hold strong moral views on abortion and abortion rights may not agree with this point, but I would suggest that treating abortion as a symbol ultimately fails to give full respect and dignity to the seriousness of abortion and abortion rights.  Those who staunchly support any liberalization of abortion laws may think that doing so is wrong no matter when the President does so; and those who staunchly oppose restrictions on abortion and abortion rights may conversely think that it is important that the President act today.  But I think there is a sense in which, if the President waits to act until tomorrow, he can say that he takes abortion seriously and that his substantive views on the matter have not changed, but that he believes the whole issue is too serious to treat it as a symbolic issue, and that he is unwilling to use Roe's anniversary as either a sop to his base or a message to those who oppose abortion rights.  Sometimes, it may be the case that the most respectful thing a public servant can do for those with strong beliefs on an important issue is to refuse to play the games of those who lead the forces on either side.               


Posted by Paul Horwitz on January 22, 2009 at 10:56 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack

The Curious Case of "Benjamin Button"

What's curious is not that The Curious Case of Benjamin Button has garnered 13 Oscar nominations, including one for Best Picture.  No, what's curious is that David Fincher, who directed Zodiac, among other exceptional movies, is responsible for this movie, which struck me exactly as Forrest Gump meets Titanic.  With those kind of parents, it's no surprise that the Academy has broken out the laurels.  It's also little surprise that the movie is, in my view, dreck.  It's the longest three-hour movie I ever sat through.   

Posted by Paul Horwitz on January 22, 2009 at 10:26 AM in Paul Horwitz | Permalink | Comments (8) | TrackBack

Capturing the Obamas: The Global Village Gets Smaller

Via Ted Frank on Facebook, I just came across this amazing set of photos.  

Posted by Administrators on January 22, 2009 at 10:21 AM in Current Affairs | Permalink | Comments (0) | TrackBack

Regulation and the Religious Voice

So here's a half-baked idea for a project that I've been thinking about doing for a long time but have never gotten around to.  Maybe if I put it out there, someone can tell me how bad an idea it is, and I can put it to bed forever.  Or maybe people will have good ideas that will spark me to get going on it. 

The project would be at the inters . . . that's right, I'm going to say it, despite every fiber of my being telling me don't don't don't say it no no-- the intersection (ahh, it's done) of two fields I teach in--law and religion, and administrative law.  I've thought about and written about this debate that I know has been aired here on Prawfs before regarding whether it's appropriate for religious citizens to rely on their religious beliefs when reaching decisions on public issues and to articulate their views in religious terms.  I think the answer to this is generally yes.  It's also clear I think (right?) that as a practical matter, religious groups and citizens do attempt to influence policy through lobbying at the legislative level.  But since so much important policy is made by federal agencies, I wonder whether religious groups and citizens participate in the notice and comment process before agencies to influence agency decisions on policies that matter to them.  Since I teach environmental law, I often think about this in those terms: do religious groups that, for example, support protecting endangered species and worry about global warming submit comments to agencies during notice and comment on rules that implicate these concerns, and if they do, what kind of language do they use?  Is it explicitly religious, or do they translate this religious language into the language of secular policymaking?  And if it's the latter, is this something we should applaud or worry about?  What should an agency do if it receives an explicitly religious comment from a prominent group.  Should ignoring it be considered arbitrary and capricious?  Would considering it violate the Establishment Clause?  So many questions.

Anyone think this is an interesting project to pursue?  Anyone know of work already done on it?  There would certainly be an empirical part--combing through online comments in rulemaking proceedings to see whether I can find comments from religious groups and individuals and what those comments say.  But how would I pick which rulemakings to look at?  How many would I choose?  Etc.

Posted by Jay Wexler on January 22, 2009 at 10:20 AM in Jay Wexler, Religion | Permalink | Comments (2) | TrackBack

What the oath retake looked like

Mike Dorf has one thought. I think it was more like this:

Posted by Howard Wasserman on January 22, 2009 at 07:46 AM in Culture | Permalink | Comments (2) | TrackBack

Wednesday, January 21, 2009

Civilian Contractors and the Limits of Military Jurisdiction

With a big hat tip to CAAFlog (a name that'll make sense in a second), I thought I'd pen a few quick thoughts on a fascinating habeas petition filed last week in the D.C. federal district court by a civilian contractor who is being subjected to court-martial proceedings in Iraq for his alleged role in a fire that took place during maintenance of an unmanned Predator drone. Although the contractor in question was formerly enlisted in the U.S. Air Force, there is no question that he is not currently a member of the U.S. military.

As such, subjecting him to military jurisdiction seems to run right into a long line of Supreme Court decisions suggesting that the Constitution categorically bars the exercise of military jurisdiction over civilians (indeed, this is part of the argument in al Marri). The government will argue, I'm sure, that contractors performing what are effectively military-like functions (such as the maintenance work the petitioner was contracted to perform here) should fall on the other side of that line (especially in light of a 2006 amendment to the UCMJ that supports such a reading), but the Court's most recent pronouncement on the subject -- its 1987 decision in Solorio -- seemed to suggest that form matters much more than function. There, the Court overruled the so-called "service connection" test, holding that servicemembers could be subjected to military jurisdiction for any offense committed while in military service, because the Constitution draws such a bright line between servicemembers and civilians.

Moreover, although these facts seem to present the perfect case for reliance upon the Military Extraterritorial Jurisdiction Act of 2000 ("MEJA"), the Justice Department declined to pursue charges against the petitioner in the civilian courts, sending the case back to the Air Force. Suffice it to say, this should be a really interesting -- and potentially important -- case going forward...

Posted by Steve Vladeck on January 21, 2009 at 04:26 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

A question for IP folks

If you are the photographer who took this photo, would you have any claims against the artist who made this image without your permission or license?  Further information over at Swampland.  A quote from the photographer: "As gentlemen we can work this out. . . . I don't want it to get ugly."

UPDATE: Here's the artist (Shepard Fairey) on the Colbert Report.  What is his liability if he didn't make as much money as he could have?

Posted by Matt Bodie on January 21, 2009 at 03:34 PM in Current Affairs | Permalink | Comments (17) | TrackBack

How specific the oath?

A lot of smart, sane people are saying that, purely in an over-abundance of caution, Obama either has or should retake the oath in private. Obama spoke all the words contained in the Clause. The argument seems to be that, because the Oath Clause contains quotation marks, it requires that the President recite the precise words in the precise order. Even if this is just an over-abundance of caution, those recommending the do-over seem to acknowledge, implicitly, there is a colorable argument there that at least could make for genuinely troubling litigation or conflict.

But why is it even is a colorable argument that a do-over could be necessary (even putting standing and political question issues to one side)? The problem with the quotation-marks argument is that Obama (and just about every President before him) added language to the oath, namely "so help me God," which does not appear in the Oath Clause. Can it really be that the President can add extra words if he wishes, so long as the required words are spoken in the correct order? That seems like a very odd reading of the Clause, partially formalist and partially pragmatic. That also leaves open the possibility that Congress could provide by law for an oath that added new language--maybe the "I take this obligation freely, without any mental reservation or purpose of evasion" language that appears in the oath for all other federal officers and employees--so long as the constitutional language remained as it appears in the Constitution.

One way around the "so help me God" add-on language rests on the fact that the President must "swear (or affirm)" and swearing presumes an oath to God. So when a President chooses to swear rather than affirm, as everyone does, "so help me God" is implicit in swearing, so making it express is not really adding new or additional language to what is quoted, which must be recited verbatim.

Maybe. And if the only requirement is that the quoted words be spoken, regardless f order, we could hypothesize the extreme example of a President who utters the words of the oath backwards or in completely random order such that it makes absolutely no grammatical sense--has he truly taken the oath?

Update, 10 p.m. E.S.T:

Obama retook the oath with Roberts at the White House this evening. (H/T: Orin). Of course, as some of the comments to Orin's post show, some people may now try to argue that everything Obama did between noon Tuesday and Wednesday evening is not valid or binding.

Posted by Howard Wasserman on January 21, 2009 at 03:27 PM in Current Affairs, Law and Politics | Permalink | Comments (5) | TrackBack


Given the latest news, I thought it might be an opportune time to tell the folks at Cornell, Harvard, etc., that I am willing to teach constitutional law there, if necessary.  This was not an easy decision to make, but the new emphasis on personal responsibility reminds me that sometimes sacrifices must be made.  

Posted by Paul Horwitz on January 21, 2009 at 02:40 PM in Paul Horwitz | Permalink | Comments (3) | TrackBack

Blawg rankings

Paul Caron's 2008 law-blog rankings are up and available, here.  As usual, no one comes close to Reynolds, and Prawfs is in a tight cluster of 6 (with Leiter, Bainbridge, Balkin, etc.) in the "top 14" (sounds like the U.S. News rankings, doesn't it?).  Any thoughts about, or reactions to, the list?  What does it say (if anything) about the state and future of the law-blogging "thing"?

Posted by Rick Garnett on January 21, 2009 at 10:01 AM in Blogging | Permalink | Comments (2) | TrackBack

Now playing in the non-law-prof blogosphere

A couple of non-law-prof things worth taking a look at.

Noam Scheiber in the New Republic considers the stylistic and pedagogical differences between Harvard Law School and Yale Law School and how their different law school experiences affect the respective governing styles of Barack Obama and Bill Clinton.

[ed: My bad: Paul (as always) beat me to it on the Scheiber piece--and I basically share his take.]

TPMCafe is running a special feature on Barack Obama's America, discussing what this administration must do to bring the nation back from the past eight years in areas of liberty, equality, community, opportunity, and democracy. Several law professors are playing, including our own Steve Vladeck. Some good stuff there.

Posted by Howard Wasserman on January 21, 2009 at 09:47 AM in Blogging, Law and Politics | Permalink | Comments (1) | TrackBack

The Rorschach Address

Somewhat in the spirit of some of Orin's posts, I agree with Frank at CoOp that "this is a president who takes his words seriously, and whose oratory deserves attention for its deep substance."  Although, curiously, Frank zeroes in on language in the inaugural address in which the new President says that "the market can spin out of control" and "a nation cannot prosper long when it favors only the prosperous."  That was nice, I guess, but I was more moved by these words: "Nor is the question before us whether the market is a force for good or ill. Its power to generate wealth and expand freedom is unmatched."  And also his blunt statement that failing government programs "will end."  I guess the mark of a great inaugural address is that there's something in it for everyone! Although I'm not sure I understand why Frank has "some faith that figures like Rubin, Geithner, and Summers have learned the error of their ways."  I should think that Rubin et al. heard the same words I did and feel pretty good right now.

Posted by Paul Horwitz on January 21, 2009 at 09:42 AM in Paul Horwitz | Permalink | Comments (4) | TrackBack

What makes for a good Associate Dean for Research?

Over at the Faculty Lounge, Danny Sokal writes:

At the AALS annual meeting, I had a a chance to catch up with friends and compare experiences across schools.  From our perspectives, perhaps the most important person on the faculty for the untenured is the Associate Dean for Research.  A good Associate Dean does more than send you emails about upcoming conferences and research grant applications.  At the University of Florida, my Associate Dean sits down with junior faculty on a regular basis to go over research agenda, provides significant comments on drafts, brainstorms on organization of papers and works very hard to ensure that we progress as scholars who can balance between reaching specialists in our field and engaging with a broader scholarly community in our writing.  The sense I get from friends at other institutions in that there is high variance in how hands on the Associate Dean is and the effectiveness and availability of their Associate Dean.  I suspect that if one were to do a longitudinal study of productivity and impact of junior scholars, one would find a correlation between a strong Associate Dean for Research and success in the scholarly enterprise.

It seems perfectly legitimate for ADR's to be involved in junior mentoring, but for what it's worth, I pretty much doubt empirical claims (which, to be clear, are not made by Sokal,) that a strong ADR can "fix" otherwise weak junior talent or that a weak ADR can stunt the success of otherwise strong junior talent. FSU's own ADR, Jim Rossi (visiting at Harvard this spring), has played an extraordinary role in intellectual life and institution-building at FSU, but I don't think anyone, including Jim, views the ADR's role here as encompassing the kind of intense mentorship that might be going on elsewhere.  

That said, in service to my ongoing quest to figure out best practices for law schools, I'd be curious to hear thoughts by ADRs or others of what's working and what's not. Does anyone have something to add to James Lindgren's seminal article on cultivating research and intellectual life, , Fifty Ways to Promote Scholarship in 49 JOURNAL OF LEGAL EDUCATION 126-142 (1999)? What's changed in the ten years since that piece appeared, aside from the appearance of blogs?

Posted by Administrators on January 21, 2009 at 09:38 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Tuesday, January 20, 2009

Who was president while Perlman fiddled?

At noon, EST, by operation of the Twentieth Amendment, George W. Bush's term as President of the United States ended. At that moment, Yo-Yo Ma and Itzhak Perlman were performing (the piece that was, by the way, my wedding processional). It was not until 12:04 p.m. that Chief Justice Roberts and Barack Obama stood up, Roberts asked "Are you prepared to take the oath, Senator?", Obama answered "I am," and they began (by the way, it was Roberts who read the oath wrong initially).

So who was President between noon and 12:04? The Twentieth Amendment states, referring to the noon end of the current President's term, that "the terms of their successors shall then begin." This seems to suggest that the transition happened at noon and the oath is a formality. And if you look at the blog of the re-designed White House web site, it announced Obama-issued proclamations time-stamped 12:01 p.m. And CNN flashed on the screen that Obama had become President as of noon.

But the oath is prescribed in Article II to be taken "[b]efore he enter on the Execution of his Office." Does this mean the oath is necessary for someone to become President? Or does it mean that Obama was President but could not do anything until he had taken the oath? If so, why did Roberts call him Senator before issuing the oath and not refer to him as "Mr. President" until after the oath was completed? And does all this mean that Joe Biden was acting president for four minutes? And what of Robert Gates?

Finally, what are the odds that someone files a lawsuit arguing that Obama did not properly take the constitutionally prescribed oath of office?

Update, Tuesday, 6:15 p.m.:

Orin Kerr and Mike Dorf weigh in. And the prevailing view seems to be that he became President under the Twentieth Amendment at noon and had to take the oath before he could "enter on the execution" of his office--in other words, before he could wield any executive power. And I think I agree with that, otherwise this all becomes unnecessarily complex.

This reading also has some historical support. As Sonja noted in the comments, there was 90-minute gap between President Kennedy's death and Johnson taking the Oath on Air Force One (with Jackie Kennedy famously standing alongside him, still wearing the bloodied clothes from the assassination). And apparently the first Congress believed George Washington became President on March 4, 1789 (the day the first Congress attempted to convene), although he did not take the Oath until April 30.

Finally, one other interesting tidbit (courtesy of my FIU colleague Tom Baker, the real con law expert here): Presidents Jackson, Lincoln, and (Andrew) Johnson at various points argued that the Oath was not even necessary to exercise presidential power (that came with the job), but that the Oath gave them additional powers, namely in the realm of constitutional interpretation, beyond ordinary executive power they would have absent the Oath.

Oh, one last thing: From what I am reading, it is beginning to sound like whom to blame for the botched oath is a political litmus test. But I give Orin the final word on this.

Posted by Howard Wasserman on January 20, 2009 at 01:31 PM in Constitutional thoughts, Current Affairs, Law and Politics, Web/Tech | Permalink | Comments (11) | TrackBack

New Semester, new ideas

Just back from a fascinating weekend in NOLA, where, among other things, I attended much of this amazing Black-Jewish dialogue group. I came home with a cold, an abiding appreciation for Black Catholic masses, and a belly full of beignets. Clearing out my inbox this morning, I just stumbled upon Simon Stern's thoughtful draft syllabus on law and literature, which he helpfully posted on SSRN here. I know that in the past we've posted some syllabi here on Prawfs under the research canons project. That said, I think it's great that Simon (who now teaches in my hometown of Toronto (pronounced Tchrano)) has uploaded to SSRN his really neat syllabus, which includes HLR notes by Jeannie Suk and Prawfsfest MVP Dave Fagundes. 

If you can suggest a link to a "quirky" course syllabus in the law school curriculum, ie, one that integrates readings from a variety of areas, please share it in the comments. And feel free to nominate your own syllabi in the comments or upload it to SSRN if it's yours.

Posted by Administrators on January 20, 2009 at 09:48 AM in Life of Law Schools, Syllabi Project | Permalink | Comments (0) | TrackBack

Monday, January 19, 2009

Civics and Corrections: A Reminder

As we get ready to watch the momentous transfer of power on Capitol Hill tomorrow, I thought we'd ponder for a moment about the rationale behind excluding prisoners, and in some cases ex-felons, from the right to vote.

Four years ago, released prisoners on parole, and probationers, were surprised to find out that they had a right to vote in California. Activists have been working on raising awareness of the right to vote among those who have been, for a while, excluded from the civic process. In other states, such as Florida, in some cases voting rights can only be restored after a hearing.

In their excellent book Locked Out: Felon Disenfranchisement and American Democracy, Jeff Manza and Christopher Uggen uncover some of the reasons why the American system does not award voting rights to its prisoners. Disturbingly, they draw links between felon disenfranchisement and racism, which go beyond a mere coincidence. Even more interestingly, they marshall empirical data, meticulously collected and analyzed, to prove that, had felons been allowed to vote, two presidential elections (1960 and 2000), and several Senatorial elections, would have been reversed.

Some change has already occurred after the publication of the book, as some states loosened restrictions on voting rights. And, as some readers may know, many countries around the world see no problem in allowing prisoners (current and released) to participate in voting.

This weekend, Parade Magazine published a letter from President-Elect Obama to his daughters and to every child in the country. Obviously, our children, whose future we hold so dear and care so much about, did not vote in the last elections. The Presidential stewardship, as Obama so movingly said in his acceptance speech, transcends those who voted for him; it extends to those who voted for other candidates, and hopefully will also extend to other groups who did not have the privilege to vote at all. As many of us hope for change in many ways, we can hope that our future paths and endeavors also direct us to re-entry, restoration and reintegration after punishment.

Cross-posted to http://californiacorrectionscrisis.blogspot.com

Posted by Hadar Aviram on January 19, 2009 at 12:08 PM in Criminal Law | Permalink | Comments (0) | TrackBack

How Should an Originalist President Pardon? (By Bernie Meyler, Cornell Law School)

The culmination of a presidency marked by as expansive a view of executive power as that of George W. Bush should be an expansive exercise of that most unchecked of executive capacities, the power to pardon, shouldn’t it? As the days of Bush’s time in office draw rapidly to a close, speculation mounts about whether he might pardon actors from his administration, including Vice President Dick Cheney himself or others, before they have even been indicted for any offenses. If, however, Bush wishes to remain faithful to another tenet of his administration—the endorsement of originalism in the justices and judges whom he has appointed—he would do well to impose some limitations upon his own exercise of the pardoning power.

The capacity to pardon is perhaps that which most closely ties the U.S. president to an earlier line of English monarchs. Under Article II of the Constitution, the president has “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” As long as the underlying offense is federal, and an impeachment is not in question, the Pardon Clause leaves little recourse to Congress to circumscribe the conditions under which the president may furnish pardons or limit the identity of those pardoned. Because the Pardon Clause specifically delegates the power to pardon to the president, courts would also be likely to consider most challenges to presidential grants of pardon to be nonjusticiable political questions.

Nevertheless, if Bush endorses an originalist model of presidential—as well as judicial—constitutional interpretation, two English statutes and subsequent commentary upon them suggest that he ought to impose constraints upon his own pardons. Seventeenth-century English pamphlets, as well as William Blackstone’s influential Commentaries on the Laws of England, and writings of members of the founding generation refer approvingly to the limitations upon the pardon power derived from a fourteenth-century statute in the reign of King Richard II and a seventeenth-century law passed during the reign of King Charles II.

In the first of these pieces of legislation, 13 R. 2 st. 2 c. 1, King Richard II, maintained his absolute right to decide on a pardon yet simultaneously agreed not to allow any charter of pardon for “murder, or for the death of a man slain by await, assault, or malice prepensed, treason, or rape of a woman, unless the same murder, death of the man slain by await, assault, or malice prepensed, treason, or rape of a woman, be specified in the same charter.” Later glosses on this statute emphasized that the purpose of pardoning was to remit punishment, but not to allow offenses to be smothered before coming to light at all.

The second piece of legislation, 31 Car. II c. 2, sometimes known as the Habeas Corpus Act of 1679, is a statute reaffirming the writ of habeas corpus and providing stringent penalties for attempts to thwart the workings of the writ. In this statute, Parliament specified that anyone who unlawfully transported a person out of the realm for imprisonment or other purposes would be subject to severe punishment and not be able to avail themselves of a royal pardon. Subsequent commentary confirms that this law was aimed at reigning in the excesses of the use of the royal prerogative and at preventing the King from simply pardoning after the fact those who violated the procedural safeguards provided by the writ of habeas corpus.

Under this logic, anyone who participated in the extraordinary rendition of persons within the United States to locations abroad should not be able to avail themselves of the benefits of a presidential pardon. Furthermore, as the statute of Richard II suggests, pardons for serious offenses ought not to be issued without a specification of precisely what is being pardoned. Although the power of pardoning has, at previous moments, been effectively deployed as part of a strategy for achieving peace for the future, its scope cannot encompass simply obliterating the past. The American public, just as much as the English subjects of the fourteenth century, have a right to know that President Bush is aware of exactly what he is pardoning, and that both he and the electorate are fully cognizant of the events that have occurred.

-Bernie Meyler, Cornell Law School (cross-posted at http://findandreplace.blogspot.com)



Posted by Ethan Leib on January 19, 2009 at 11:46 AM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

An Inaugural Scrooge

Paul's post on the iinaugural spectacle prompts me to confront my own reaction which is, for the most part, one of bemusement. It all strikes me as too much by half. 

Of course, the election of an African-American president is a significant event. I was not one of those who doubted that the U.S. would elect a black president. Contemporary racial bias seems to express itself in presumptions about people that we don't know. In a nation that has - for reasons that are lost on me - made Oprah its most admired person, the election of an African-American is not all that surprising.

But that doesn't make it any less momentous. As others have noted, Obama could not have been served lunch at many restaurants in North Carolina during the year he was born. Last fall, a majority of the state's electorate voted for him for President.

So that makes this inauguration special. In contemplating my own reaction, I also have to make allowance for the fact that I did not vote for Obama and do not welcome much of what I believe his administration will do. I understand, as well, that this type of transition is a time for us to engage each other with good will.

Paul suggests that the triumphalism of the inauguration might be justified as a celebration of the event and what it tells us about our democracy and racial progress. It is better, on this view, to see it as being about the event than about the man and his ideology.

While we can qualify our individual enthusiasm in this way (I am all about that), I don't think the social meaning of the event can be circumscribed in this way. The avalanche of Obama Inaugural geegaws and jingles; the starry eyes and breathy invocations of Hope, Change and New Day and whatever cannot help but be about the man and his ideology.

But who cares? Aren't I just refusing to be gracious in defeat? Isn't it OK to be optimistic about new leadership?

To some extent, I am and it is. But just as you can't separate politics from the celebration, you can't completely remove ideology from your reaction to it.

As a Burkean conservative, my expectations for politics are modest. One of my concerns about the Obama movement is that it places (in its rhetoric, if not in its specifics) excessive hope in politics and the state and, worse, does so by investing its personification with some post-ideological and extrapartisan wisdom.

I suppose that we will all come down to earth in a few days. But I think there should be some healthy skepticism about what is on offer. Political honeymoons are times when things get done. They are also times when mistakes are made. I would prefer a more subdued reception.

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

Posted by Richard Esenberg on January 19, 2009 at 10:55 AM | Permalink | Comments (11) | TrackBack

Peaceful Transitions

A fuller response to Hadar's query: At 11:50 a.m. EST tomorrow, I will dismiss my civ pro class (we usually go until 12:15 and I can make the 25 minutes up in our next meeting). I will tell them that class is dismissed because in ten minutes, political power will be transferred peacefully (barring anything truly unforeseen) to a different executive from a different political party planning to bring about a [ed: hopefully very] different governing agenda. Whatever one's thoughts about the outgoing and incoming executives or about the racial and cultural significance of this particular Inauguration, celebrate the procedure. However routine the exchage has become, do not take it for granted. Peaceful transition is what makes a true liberal democracy. In form and even substance, elections are easy--Zimbabwe, Venezuela, Pakistan, all routinely hold elections. Actually surrendering and exchanging power without violence, conflict, or social convulsion is hard.

So, for a fictional (although accurate) look at the presidential transition behind the scenes, check out this clip from the series finale of The West Wing. Around the 2:15 mark, over a blues rendition of "America the Beautiful," staffers begin bloodlessly shifting the Oval Office and the White House: taking all of President Bartlet stuff out of the Oval Office (note the copy of Foucault) and moving Santos's stuff in, taking down Bartlet's official portrait and putting Santos's up in the same spot on the wall. It is a neat sequence, capturing visually how engrained peaceful transition is, when we get to focus on the mundane details.

Posted by Howard Wasserman on January 19, 2009 at 10:08 AM | Permalink | Comments (0) | TrackBack

U Who?

Not to be too much of a party-pooper, but I confess to some ambivalence, with a couple of important caveats, about the triumphalism of yesterday's concert and the substantial involvement of various celebrities in it.  In particular, and it may sound odd coming from a Canadian citizen and US permanent resident, but I am ambivalent about the fact that U2 was one of the performing acts yesterday.

On the triumphalism and the involvement of celebrities, I think there is a difference between gathering to celebrate the peaceful transition of power in the democratic process, and the hope that any and all such transitions represent, and gathering specifically to celebrate the ascendancy of a particular party or person.  Although Obama certainly was the people's choice, too much triumphalism of the latter category can feel like gall in the throats of the many who did not vote for him.  Of course, we could echo Justice Scalia's words about Bush v. Gore, and tell the losers to "get over it."  But we could do with better role models on such issues, couldn't we?  
As worrisome for me is that Washington is a town of star-[redacted]ers, and I would not like an administration that campaigned in the name of the people, and that used but recognized the dangers of personal charisma, to give in too much to the ways of that city, which worships celebrity and loves to bask in personal and reflected glory, and in which "wall of fame" photos are the central decoration.  As I wrote before, we could have seen much about what would be both good and cloying and awful about the Clinton Administration when we watched Michael Stipe and 10,000 Maniacs serenade the new President with "To Sir With Love" in 1992.  I also wrote here that I was not crazy about the kind of it's-who-you-know coziness at the top that placed an advance copy of the final episode of the Sopranos in Al Gore's private plane, lest he have to DVR it like the common folk.  I took some heat for that one, but I'm still uncomfortable about the kind of self-love, sense of privilege, and distance from everyday experience that the lives of the super-elite can entail.  I do think Obama quite rightly uses his charisma as a valuable tool for governing.  But when the New York Times magazine devotes its most recent issue to a portfolio of Obama administration figures, meaning that each one had to show up and agree to a worshipful portrait session rather than modestly say "no thanks," I worry that this famously disciplined group will lose something in the process.

As for U2, I suppose there's just something that nags at me about a foreign band playing at such an event.  Certainly it's a band with a long association with the United States.  And if they were willing to play at any American inauguration, for a figure of any party, I would feel much better about it.  But when the message is that, in effect, celebrities from around the world are coming to tell the United States how glad they are about the election of a particular individual that they favor, I get a little queasier.  This shouldn't be a partisan moment, and yet such performances in some ways heighten that partisan feeling.

Now the caveats.  I think there are ways to engage in this triumphalism, as little as I personally enjoy this kind of pomp, that focus on the event rather than the man.  Transitions should be times of hope or guarded optimism, even when you didn't favor the election of a particular individual.  Although this doesn't always sink all the way down, there is some evidence of this even when the new President does not share "our" views; newspapers in particular, but others too, often take a tone of reserving their judgment and hoping for the best when the changeover occurs, and the stories get softer until there's some evidence on the ground.  When Bruce Springsteen sings "The Rising," it doesn't have to be about the rising of Obama in particular; it can be about the hope that we all will rise together.  I don't know whether the performers yesterday performed in that spirit or not; but it can at least be a far cry from the hero-worship of "To Sir With Love."

Second, there is the simple truth that the United States has elected and will now witness the inauguration of its first black president.  This is still an awesome thing and, as in November, I think the sense of disbelief and joy will crest in the next couple of days.  That is a thing worth celebrating, and it can be seen as an extraordinary moment for the whole American people, of whatever party, rather than as the apotheosis of a man or a party.  In that sense, yesterday's events truly could be a celebration by and for all of us, and not just those who are liberals or Obama supporters.

Finally, and I am somewhat attracted to this, we could view the day's events -- including U2's performance -- as a moment of in-your-face American exceptionalism.  In the popular imagination, that kind of pugnacious "We Are the Champions" nationalism is probably associated more with conservatives and Republicans, but from a Canadian perspective I think liberals and Democrats are hardly any strangers to the belief that theirs is the best country in the world.  Part of the worldwide excitement about Obama's election can be seen not just as a political statement about Bush exhaustion or about Obama's more liberal ideology, but also as a kind of statement of respect and even envy.  Many Western nations, despite their own lack of a recent history of slavery and formal and informal racism, are not even close to electing someone who departs so radically from the traditional backgrounds of their leaders.  The Times the other day had a fascinating story about the career of a Japanese politician whose rise was capped by the fact that he was a member of the buraku class.  There's been a lot of talk in this election about how the United States can, with this election, finally rejoin a community of nations from whom it had become estranged in recent years.  But there is a sense in which I would feel better about the triumphalism of the concert, and the appearance of a foreign band, if the real message here was that the United States was boasting yet again about its exceptionalism and the ways in which it is the envy of other nations.  If U2 wants to come and perform, not as a way of casting a vote they don't have the right to cast, but to pay obeisance to the egalitarian potential of the US of A, I'm okay with that.  Although I still don't think that star-studded concerts and portrait portfolios in magazines scream egalitarianism.  

Posted by Paul Horwitz on January 19, 2009 at 09:44 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Sunday, January 18, 2009

Query: Hold Class on Inauguration Morning?

I hear that many colleagues in various departments across the country might be canceling classes to allow students to watch the inauguration ceremony, which at Hastings we're showing on a large screen in a big hall.

The ceremony is 9:00 Pacific time. I teach at 9:40. What do I do?

On one hand, I think this is a hugely important and momentous event in American history, and folks may want to remember having seen it live. On the other hand, as the case is in a democratic system, there will be some folks in the audience for whom this event is not cause for celebration. Also, people are adults and can be expected to make their own decision on whether to attend class or to watch the speech; and everyone can watch the reruns on C-span.

Those of you who teach Tue morning to noon, what are you planning to do?

Posted by Hadar Aviram on January 18, 2009 at 10:54 PM | Permalink | Comments (8) | TrackBack

A Guide to the Presidential Oath

In its inauguration package, the New York Times has a short piece on the Presidential oath.  Hey, here's an idea!  While you're at it, why not also look up my recent piece in the Northwestern University Law Review's Colloquy called Honor's Constitutional Moment: The Oath and Presidential Transitions [thanks to a reader who was either very diligent or quite bored on a Sunday, I've fixed the link, hopefully].  A slightly longer version is available at my SSRN page.  And please check the Colloquy web site in the coming weeks for more pieces in an online symposium on presidential transitions.

Posted by Paul Horwitz on January 18, 2009 at 04:09 PM in Paul Horwitz | Permalink | Comments (5) | TrackBack

Saturday, January 17, 2009

Silly Writing: A Weekend Roundup

Here, for your non-edification, are a couple of articles that appeared yesterday.  In the first, Noam Scheiber discusses how Harvard beat Yale in the Democratic Party.  He argues that the differences in behavior between the Clinton and soon-to-be Obama administrations in the transition period reflects, in part, "the elite institutions that socialized them -- namely Harvard and Yale, [and] their respective law schools."  He trots out all the usual anecdotes about the two law schools, and a few I hadn't heard before: Charles Reich saying that his property course should be called "the intellectual, moral, ethical, and political implications of property ownership in America" -- more fun than the RAP, I suppose; Obama urging Roberto Unger to "bring the theorizing back down to earth"; the construction of mock issues of the HLR to appease Erwin Griswold.  I always enjoy this sort of thing.  Still, this is decidely one of those cases where the plural of anecdote is not data, and the whole piece comes off as weakly supported.

In the New York Times yesterday, Mary Frances Berry writes an op-ed that moves beyond weak argument and is closer to being insidious and dangerous.  She writes that "President-elect Obama should abolish the now moribund Commission on Civil Rights and replace it with a new commission that would address the rights of many groups, including gays."  Her reasons for concern with the civil rights of gays and lesbians arabsolutely fine with me.  Still, one might be surprised to hear one who has been so long associated with the Commission on Civil Rights arguing for its abolition.  What's the reason?  It has nothing to do with any argument that the Commission is unable under itexisting authority (such as it is) to say anything about gay rights.  No, the problem is that "[t]he Commission on Civil Rights has been crippled since the Reagan years by the appointments of commissioners who see themselves as agents of the presidential administration rather than as independent watchdogs.  The creation of a new, independent human and civil rights commission could help us determine our next steps in the pursuit of freedom and justice in our society."

Well, there is no doubt that the makeup of the Commission has changed significantly since Berry's day; and the appointment by the outgoing administration of individuals who see themselves as serving the political agenda of the president rather than their offices would come as no surprise.  On the other hand, I doubt that characterizes all the current commissioners; obviously what bothers Berry in large measure is not that they are not independent, but that their agenda and views are different.  Still, it strikes me as a pretty dubious response to the alleged capture of an independent commission to shut it down and recreate it with new commissioners, presumably ones more to her liking.  I hope Berry has not spent any time complaining about executive branch abuses in the past eight years, because obviously her differences lie only with the ends, not the means.     

Posted by Paul Horwitz on January 17, 2009 at 11:13 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack