PrawfsBlawg

Signing off

Thanks to Dan and Prawfsblawg for inviting me to blog. I enjoyed blogging (albeit not as frequently as I had hoped I would) and look forward to seeing many of you at various conferences, symposia and workshops.

Have a great and productive summer!

"An artificial perfection of reason": Intimations from Hamburger

I have been making my way through Philip Hamburger's truly magnificent book, Law and Judicial Duty.  There is a great deal in this book in the way of assiduously researched detail -- but many of the delicate ornaments and historical baubles are placed in the service of several broad themes; the sweep and significance of the book is very much more than the sum of its details, and it has much to say about the way in which we think about the role of the judge and the institution of "judicial review."  In my final post, I want to consider only one of these themes -- artifice, artificiality, and their relationship to law.

The ideal of judicial duty is very much, in Hamburger's telling, the product of the common lawyer's self-conscious effort -- perhaps strategy is even the right word -- to clothe the law in ritual and form.  Thus, in at least partial reaction to Cicero's naturalist aphorism, lex est ratio summa, insita in natura, Coke offered that the common law is "an artificial perfection of reason, gotten by long study, observation, and experience, and not by every mans naturall reason."  (129).

The very notion of "artificial perfection" may strike modern ears as rather dissonant.  Artifice, to say nothing of artificiality, tends to elicit negative responses.  What could be less honest, less sincere, less natural -- in a word, less real -- than artificiality?  Artifice is what is employed when -- because -- perfection is unattainable.

Hamburger takes the part of Coke here.  Of the academic challenge to the common law -- the challenge of the "learned law" (the "scholarly enterprise that encompassed both the civil and the canon law" (103)), and the response of common lawyers to it, Hamburger writes:

The academic ideals have resurfaced in different times in different ways . . . but they have consistently tended to rest on a potent combination of 'realism' and idealism -- on a dismissive realism about the law of the land and the capacity of judges to decide in accord with it and on a high idealism about rational academic models of human law.  (611-612).

Hamburger unites the strains of artifice in the common law with those of a formalistic approach to law.  It is the artifice and artificiality of the common lawyer's way of approaching the law -- its non-realism and non-naturalism, its quirks, habits, dispositions, and ornamented ways -- that is the distinguishing feature of the common law.  This view of law is inherently defensive, pessimistic about law's (and man's) capacity to reach the heights of the academic ideal.  It recoils from the elimination of mystery and mystique in law in favor of its all too natural, and all too accessible, rationalization.  The common law relies on manner, custom, and artifice to sustain itself in the face of the academic challenge.  It keeps always in view a very different understanding of realism, "not an academic skepticism about the law of the land, but a deeper realism about the inadequate intellect and disposition of men."  (612). 

One of the features of the idea of public (legal) reason that I've always most admired is its aspiration to a self-imposed restraint.  Leave aside for a moment that this type of restraint aims ambitiously (though it disclaims ambition) to achieve commonality or an overlapping consensus in the face of the problem of pluralism -- I am much less interested in that than I am in the very notion that restraint is itself a good thing.  Restraint implies discipline, a distaste for "letting it all hang out" or "doing what comes naturally."  Restraint -- no less in personal deportment than in an institutional setting -- connotes a formal, buttoned-down approach to life and law, one that is always conscious of the niceties and manners of social and professional conduct.  And restraint in the law is likewise artifice in the law --a layered, complicated, formal, and baroque approach. 

The supporters of this view of law seemingly grow fewer in number by the generation, as we have moved from questioning the artificial ideal to ridiculing it in favor of a realism whose pantagruelian hunger gorges on everything in sight -- gluttonous and, so, entirely unrestrained.  Yet the conflict between the real and the artificial in law seems to be a perennial one -- one of those fights where neither side ever claims complete victory.     

Does EFCA's Defeat Show the Death of Organized Labor as a Political Force?

While the bloggers here and elsewhere (including myself) are focused on the entertaining but practically irrelevant issue of Sotomayor’s nomination, the really big legal news has been largely ignored by law prawfs. Last week, the Employee Free Choice Act of 2009 (better known as the “card check” legislation) was pronounced dead. Labor could not rally enough Democrats and moderate Republicans to win cloture in the Senate. In particular, Arlen Spector and southern Democrats with lots of non-union businesses like Wal-Mart apparently refused to budge on the bill.

This is extraordinary news, given that EFCA was Labor’s most urgent agenda item. That Labor could not swing the Senate to cloture with an overwhelmingly popular Democratic President and a dilapidated Republican Party speaks volumes for – well, what? The spectacularly unresponsive procedures of the Senate? Or the remarkably marginal influence of labor in the modern American politics? Or both? As I have noted in an earlier post, I am genuinely ambivalent – indeed, schizophrenic -- about EFCA. Fostering a perhaps sentimental Arendtian attachment to participatory democracy, I like the idea of reviving workplace democracy from the clutches of employer coercion. I am not sure, however, that genuinely non-coercive democracy is possible in the economic sphere: There is a non-frivolous argument that the “card check” would substitute one form of (union) coercion for another (management) version.

But, regardless of what one thinks of EFCA, it is simply astounding news – far more significant than anything Sotomayor-esque -- that this Congress and President could not get Labor’s biggest agenda item through the Senate. If not now, when? After this labor debacle, I’d say the answer, for better or worse, is “never.” One is left with the sense that Labor remains politically moribund. But maybe there is a different story?

Some belated thoughts on Iqbal, empathy, and Sotomayor

Fittingly for what is probably my last post on Prawfs for a while, I thought I'd tie together some of the threads that have been running through Prawfsblawg this month, specifically those pertaining to "empathy," the nomination of Sonia Sotomayor to the Supreme Court, and the Court's recent decision in Ashcroft v. Iqbal. I have finally gotten around to reading Iqbal (it's been a busy couple of weeks), and it occurs to me that a pleading standard that demands "plausibility" in a complaint is precisely the sort of case in which, in Marc Blitz's and Orin Kerr's words, empathy is "doctrinally relevant." It seems to me that plausibility as a legal standard -- though it surely makes appearances elsewhere in the law -- inherently calls on the judge to make judgments based on life experiences. Indeed, Justice Kennedy says as much in Iqbal. And you can almost read between the lines to hear him saying, "I have never been a victim of discrimination, and I certainly cannot imagine folks like John Ashcroft and Robert Mueller, folks just like me, engaging in illegal discrimination against Muslims in the wake of 9/11...." A case like Iqbal is the sort of case where a judge like Sotomayor just might view things very differently from Justice Kennedy, Roberts, or the others in the majority, whether we want to attribute that to life experiences due to minority status (see this article from today's NYT) or to some quality of empathy that is perhaps more likely to correlate with minority status, underprivileged upbringing, and the like. 

Takaki on "Revolutionary" Thinking

Since a good deal of attention on Judge Sotomayor has focused on her youthful and subsequent interest in "identity politics," and since some scorn has been cast on her helping to start a course at Princeton on the history and politics of Puerto RIco -- scorn that probably finds its reductio ad absurdam in the blog comments linked to here -- I thought it might be worthwhile to quote from a slightly different take on the nature of courses arising from identity politics.  It comes from an obituary of Ronald Takaki, who established a doctoral program on ethnicity at UC-Berkeley.  Here's the quote:

At U.C.L.A., Mr. Takaki taught the university’s first black-history course, created in response to the Watts riots. When a student asked what revolutionary tools he would be teaching, Mr. Takaki said: “We’re going to strengthen our critical thinking and our writing skills. These can be revolutionary tools if we make them so.”

Of course, that's not what all ethnic studies courses have become, any more than those skills are on offer in every course that pursues a more conventional or "conservative" subject matter.  But it does say something useful and worth repeating about what such courses -- about what all courses -- can be.  In my usual milquetoasty way, I would add that those skills can be conservative or reactionary tools too, in a value-neutral way.  But I could stand living in a world in which revolutionaries and reactionaries alike had strong critical thinking and writing skills.      

Giving students feedback on exams

I am halfway through my grading this term, and, as usual, I feel a certain level of guilt at the inadequacy of the feedback that we typically give to our students on their exams. If the only function of the exams is to help legal employers with their hiring decisions, then, of course, feedback is not terribly important. In my more naive moments, however, I imagine that exam-taking could be more than a painful sorting system. Instead, I imagine that it could be a continuation of the teaching process -- a sort of very intense final class -- in which students and prawfs could think about how the material fits together and have a class discussion about the problem.

For exams to serve that function, however, there has to be a feedback mechanism. Ideally, I'd like to have a "post mortem" class in which the students and I would all meet to go over the exam together. Instead, I write up and distribute a "model answer" with marginalia explaining how the arguments in the answer translate (roughly) into points. I also use old exams as hypothetical problems when teaching the course, so that the gap between preparing for the final and preparing for class can be minimized. I've attached my exam question (Download Hills Spring 2009 ARS Exam (Part 1)) and model answer (Download Model answer (with comments)) from this term's course in Administrative & Regulatory State, a mandatory first-year class here at NYU, to give you an idea of my feedback system. (Feel free to crib from the exam question, by the way, if you like it, keeping in mind that both question and model answer are now in the public domain and accessible by your own students).

It is not a very satisfactory system. Few students come by my office to discuss the exam, and I never know whether my model answer makes much sense or just adds to everyone's confusion. So I am curious whether other prawfs have discovered a better, or at least different, way of integrating the exam/evaluation system into the teaching of the course.

Update: Prawfs-Co-Op Happy Hour, May 30th, 9pm, Marlowe's Denver.

For those of you planning on attending the LSA meeting in Denver at the end of the month, please mark your calendars for Saturday May 30th at 9pm. The festivities will begin shortly after the end of the LSA reception at the University of Denver, and they will continue into the night.

The gathering will be at Marlowe's, upstairs in the Mezzanine.  Marlowe's is about a a block away from the Hyatt hotel in downtown Denver at the 16th Street Mall and Glenarm Place. There's a map you can use to navigate. Feel free to call them at 303.595.3700.  Lucky for us, we will also have the Happy Hour Drinks Specials.  Please spread the word: all are invited. 

New info on Lex Opus; an alternative to Expresso?

LexOpus (http://lexopus.wlu.edu) is a recently launched service at Washington and Lee Law School offering free online submissions to law journals. The service has two facets: 1) An author can make an article available to all interested law journals, inviting journals to make offers. Journals are able to limit by subject matter the articles that they see as open to offers. 2) An author can make offers to law journals in an author-specified journal list, LexOpus making on behalf of the author a short-term exclusive offer to each law journal in sequence. For non-peer-reviewed journals 'short term' is one week. Author offers continue past each journal's exclusive period, on a non-exclusive basis, until rejected by the journal or withdrawn by the author, but any journal with an exclusive period always has acceptance priority. An author can make a work 'open to offers' as well as submit to specific journals, or can do one or the other. As the system does permit uploading of revisions, authors might make working papers open to offers and then, if no acceptable offers have been received, when the finished work is available submit that version to specific law journals. Works can be suppressed from public view if the author so desires. Questions can be directed to:  John Doyle Washington and Lee Law School Lexington, VA 24450

Urgent Sponsored Announcement from University of Tusla

THE UNIVERSITY OF TULSA COLLEGE OF LAW is urgently seeking a visitor to teach Environmental Law in either Fall 2009 or Spring 2010. The College of Law is particularly interested in talking to candidates who are also willing to teach International Environmental Law, European Union Law, International Law, Antitrust, Banking, Corporate finance, Securities or other business related courses. Candidates interested in teaching Environmental Law along with some other course not listed should also apply as there is some flexibility with respect to course offerings. The visit may be for one semester or for the full academic year. Salaries are negotiable depending upon length of appointment and qualifications. Candidates must possess a J.D. degree from an accredited law school. We seek candidates with superior academic records from highly-regarded J.D. and/or graduate law programs who have a proven record of excellence in teaching and scholarship or have, through their professional and academic performance demonstrated superior potential to excel as teachers and scholars. The University of Tulsa is an equal opportunity/affirmative action employer committed to diversifying its faculty and staff. Members of under-represented groups (including people of color, people with disabilities, women and veterans) are strongly encouraged to apply. Please submit (1) letters of interest indicating qualifications and other teaching interests, (2( a current curriculum vitae, and (3) letter of recommendation to Assoc. Professor Tamara Piety, Chair, Appointments Committee, University of Tulsa College of Law, 3120 E. Fourth Place., Tulsa, OK 74104, or by email to [email protected]

Empathy for Schoolmasters, Bong Hits 4 Jesus, and Lawyers for Change

There’ve been some interesting observations in the legal editorial pages and blogosphere lately about what role empathy does – and should – play in judicial reasoning. There’s a short debate about it in the LA Times between Ilya Somin and Erwin Chemerinsky, and some interesting posts on the subject from Orin Kerr and Ilya Somin at The Volokh Conspiracy, and from Mark Graber and Susan Bandes at Balkinization (and I’m sure many others I haven’t read). But as far as I can tell no one’s yet mentioned the First Amendment decisions in the “Bong Hits 4 Jesus” case (aka Morse v. Frederick) and in Legal Services Corporation v. Velazquez, which I think help shed some interesting light on the question (even if they’re not the only potential sources of such light).

As Orin Kerr rightly points out, there’s an important distinction to be drawn between empathy which is “doctrinally-relevant” and that which is “doctrinally-irrelevant.” He presents a clear-cut example of the former: “if a state has a rule that a person sentenced to death cannot be put to death using a method of execution that is ‘very painful’” then judges will find it hard to apply that rule without drawing upon their capacity for empathy. Even if they’ve never been on death row awaiting execution – and I’m guessing the closest many Supreme Court Justices have come to that situation is the time when they’re waiting for a skeptical Senate to decide whether to confirm their nomination – they have to find some way to imagine what would be “very painful” for someone in the prisoner’s position. One can also imagine situations where empathy would be completely unnecessary, such as determining whether a particular person is old enough to be a Senator, Representative, or President.

I’d add that for empathy to be a legitimate part of judicial-reasoning, its doctrinal relevance should not only be present in the case, but als the source of the judge’s motivation for drawing upon empathy. Imagine, for example, a situation where a judge shifts his or her favored methods of judicial interpretation in order to get the best result for a favored party or interest group. In other words, an empathic judge might be a textualist when it favors the little guy, and then – to help out the next suffering petitioner – switch to focusing on statutory purpose or legislative history. Empathy might plausibly be said to be doctrinally-relevant in both the first and second cases, but I think something is likely going wrong if a judge is changing judicial philosophies or switching interpretative frameworks simply to get a result that is more emotionally-satisfying for him because it helps a disadvantaged litigant. The same would be true of a a judge who switches interpretative methods to help a certain industry, or big business more generally, because he or she has been a businessperson before (or had lots of clients who were) and finds it easier to identify with their concerns.

I suspect that there are subtle variants of this framework shifting that might sometimes take work and self-reflection to avoid. Imagine, for example, that a Supreme Court Justice is applying the factors set out in Planned Parenthood v. Casey to determine whether they should vote to overrule an existing Supreme Court precedent. It’s quite possible (I’d guess) that varying degrees of empathy with different parties might affect judges’ determinations about when a certain “reliance” interest is or isn’t strong enough to weigh in favor of retaining that precedent, or whether a certain precedent is or isn’t “workable” in the real world – and that judges would thus have to ask tough questions of themselves (and each other) about the legitimacy for deeming a certain reliance or workability concern stronger or weaker than another.

What the Bong Hits 4 Jesus and Velazquez cases highlight, I think, is that it will often be very hard – particularly in Supreme Court cases – to find empathy “doctrinally-irrelevant” and that, for this reason, empathy will often play some role, and present some danger in Supreme Court decision-making. Take the Bong Hits 4 Jesus case, Morse v. Frederick. . As most readers of this blog probably know already, that was the case where the Supreme Court held that a school principle did not violate the First Amendment in punishing a student for displaying a huge “Bong Hits 4 Jesus” banner at a gathering near the school to view and cheer a portion of the Olympic Torch Relay in 2002 Unlike the hypo Orin Kerr offers, where a statutory rule practically requires judges to imagine the perspective of a prisoner in order to decide if an execution method is “very painful,” none of language in the court-crafted rules at issue in Morse clearly required the Court to place themselves in the shoes of school officials or students. The Tinker case required them to judge whether a certain student’s speech would cause a “substantial disruption of or material interference with school activities,” Hazelwood to decide if a certain speech was an example of a “school-sponsored publication, theatrical production, and other expressive activit[y] that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” and if so, whether the school’s restriction was “reasonably related to legitimate pedagogical concerns,” and Fraser to ask whether the school’s speech restriction was part of its exercise of its “highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse” (or perhaps some other school function that is equally appropriate?).

One might argue that judges could have made each of these inquiries entirely from where they sit (as judges) instead of by imaginatively placing themselves in the position of a school official or student. But that’s not what they did. Rather, there were plenty of attempts on the part of the Justices to imagine how it would be if they were principals or teachers confronting different kinds of student speech under different possible rules. Justice Roberts observed in the plurality opinion that “principals have a difficult job,” and that the principal in that case “had to decide to act – or not act – on the spot.” In the oral argument, Justice Breyer expressed similar concerns about what it was reasonable to demand of a school principal forced to make quick, on-the-spot decisions about what speech about drugs constitute a threat, and what didn’t: “He doesn’t know the law, the principal. His job is to run the school. And so I guess what I’m worried about is . . . we’ll suddenly see people testing limits all over the place in high schools . . . I want some help here and I’m worried about the principal.” Justice Kennedy noted that a decision in favor of the students’ damages suit would hurt “this principal who has devoted her life to the school.” And Justice Roberts added that such a decision in favor of damages might leave “principals and teachers around the country hav[ing] to fear that they’re going to have to pay out of their own personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school’s educational mission.”

Part of this questioning was made in the context of the argument over whether the principal had qualified immunity, when the Justices were asking the party’s lawyers about whether the relevant law could have been clear enough to someone in the prinicipal’s situation to justify removing such immunity. But empathy was clearly playing a more larger role here: It was contributing to a decision not merely about whether the principal’s judgment was reasonable at the time, but whether an equivalent decision made by another principal (taken after the Morse) decision should or shouldn’t be considered reasonable under the First Amendment going forward. And empathy was playing such a role, I think, because even though there’s no clear verbal command in the First Amendment’s language requiring the Justice to determine someone else’s feelings in a certain circumstance (as a hypothetical statute does when it requires judges to determine if a certain experience is “very painful”) , it’s very difficult for them to understand how a First Amendment regime will work in a school, and the day-to-day consequences it will have, except by imagining how it will look and feel from the vantage point of principals, teachers, students, and their parents.

All of this is consistent with Orin Kerr’s statement that empathy is often indispensable when judges “to try to assess the real-world impact of a particular practice on a person or group of people.” But I also think that, although I haven’t done any kind of survey or case count, that it’s likely to be true of a large percentage of the Supreme Court’s high-profile cases. Justices (and judges elsewhere, for that matter) will often have to get a sense of how the world looks from some party’s perspective in Fourth Amendment search cases, for example, when deciding whether someone had a reasonable expectation of privacy in a certain environment, or in deciding just how significant an intrusion into privacy takes place in a particular warrantless search regime (like a random school or employment drug testing regime). They may likewise have to do so when balancing individual and government interests,, and assessing the risk of existing procedures, and value of additional procedures, in applying the Mathews v. Eldridge test to determine if a person has received the process that is due to her.

Morse v. Frederick also highlights something else about empathy. While having a diversity of backgrounds and life experiences on a court may well make a positive difference in this regard, there’s no way such diversity can possibly provide for all the perspective-taking that happens (and is arguably indispensable) in judicial decision-making. I don’t believe any of the Justices were high school principals before they had their current job. None of them, as noted earlier, were sitting on death row awaiting execution. And none of them, of course, are non-lawyers. So all of them might have to go far beyond their own experience to show doctrinally-relevant empathy no matter how diverse the court is.

And no matter how much capacity for empathy judges bring to the Court, it will probably take a good deal of self-questioning on their part to avoid the dangers of using it selectively and unfairly. As Susan Bandes points out at Balkinization, “despite our best intentions, [empathy] is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren’t all that good at identifying and critiquing our own background assumptions.” Justice Scalia, I think, suspected that precisely this kind of selective empathy was at play in the Court’s decision in Legal Services Corporation v. Velazquez. That case held that First Amendment prohibited Congress from telling Legal Service Corporation what kind of legal arguments lawyers could make with legislative funding for welfare-related legal work. (Congress had told LSC the funds could not be given to any organization challenging existing welfare laws). But it came only a few years after the Court’s decision in Rust v. Sullivan, which permitted Congress and government administrators to impose very similar speech limits on doctors receiving certain federal funds for planning services – limits that barred them from “counseling, referral, and the provision of information regarding abortion as a method of family planning.” Scalia protested that Velazquez was in fact indistinguishable from Rust and guessed that the Court had reached a different result only because the case involved the “work of lawyers” rather than that of doctors and the Court was “display[ing] an improper special solicitude for our own profession.” I’m not sure that’s the right explanation for why Velazquez came out the way it did. But it probably is true that, after decades in the legal profession, it will sometimes take some efforts on the part of judges not to display “an improper special solicitude for [their] own profession.” Some, like Erwin Chemerinsky, have also worried that there are other systematic biases in the way empathy works on the Court. He writes in his LA Times debate with Ilya Somin that “today’s Supreme Court justices apparently feel it more for businesses than employees, and more for victims of crimes than criminal defendants.”

One way of addressing this problem, perhaps, is the one Ilya Somin proposes: that judges determine mental states rather than identify with those mental states. That kind of move sometimes makes a good deal of sense, but it won’t always suffice for the judge’s task. For example, I think it would have been hard for judges trying to get a sense of the challenge facing a school principal to understand that challenge by relying on a purely external indicia of the principal’s feeling state. They needed, and sought to obtain, an internal understanding of the principal’s experience: a sense of how the world looked (and would look) from a principal’s own vantage point. This isn’t to say that their identification with the principal’s visions in Morse, for example, should have led them to ultimately come down on her side. Other legal considerations may trump whatever concerns they have about the difficulties that would face principals in a certain First Amendment regime, including perhaps concerns about what kind of an environment public schools will be for students if the Court adopts a First Amendment regime that is overly generous to certain teachers and principals. Moreover, the result of judges’ placing themselves in another party’s shoes may sometimes cut against that party’s legal position. If, for example, such an imaginative exercise tells them that a certain First Amendment regime **would not** be as burdensome as a party is claiming it is, that may hurt rather than help the case of the party in whose place they are imagining themselves.

Nor is it by itself a corrective to unfairly one-sided exercises empathy for a President to appoint Supreme Court Justices who are unfair and one-sided in a different direction: I doubt individuals will feel much better about a constitutional law decision they perceive as unfair just because there are dissenting justices who are partial towards them instead of towards the winner. The hope must instead be that having judges with very different perspectives and backgrounds will make it likely that all judges will hear questions and arguments they otherwise wouldn’t have heard, and that this will make judges better able to draw upon the right kind of empathy when they need it, and better able to detect and stop themselves from finding themselves emotionally-pulled toward one side of the dispute, when the situations demands more even-handed exercise of empathy (or putting it aside altogether in favor of other sources of legal decision-making).

Is "Business Litigation" a "Background in Business Law?"

Note: The initial version of this post mistakenly attributed the post I discuss below to Brian Tamanaha rather than to Bernard Harcourt.  My apologies!  I've revised it accordingly.

Anent the Sotomayor nomination, natch, Bernard Harcourt has an interesting and impassioned post at Balkinization taking David Frum to task for arguing that Sotomayor has only an "abstract and academic" experience of business law.  Frum describes Sotomayor (and other Justices) as having a background only in "academia and government," and laments this as the general state of the current Supreme Court's experience.  Harcourt points out that Sotomayor spent eight years as a business litigator.  Frum's response to this, apparently, was that "Sotomayor's private-sector work was very far from business counseling of the kind that I described. She worked mostly on enforcing trademarks against counterfeiters."  Harcourt considers this an inadequate response, and believes Frum's remarks about Sotomayor were simply dishonest.

I have three responses to this.  

First, I find it difficult to quarrel with Harcourt's bottom line that describing someone who spent eight years as a private litigator as having only had experience in "academia and government" is highly disingenuous -- and that the fact that Frum apparently knows about Sotomayor's private litigation experience but sticks by his remarks tends to push this beyond mere forgivable error.  Second, and this is just a side-note, although Frum is now willing to criticize Sotomayor for what he apparently views as a lack of business experience, I wonder whether he was as public about criticizing Chief Justice Roberts and Justice Alito as nominees on the same grounds.  If Frum is willing to insist on a distinction between counsel work and litigation, then surely he must also take the view that Roberts's experience as a private appellate litigator also resulted in only an "abstract and academic" experience of business law.  Alito had no private experience after law school.  Was Frum equally public in lamenting Alito's nomination -- or more so, since Alito didn't even have the degree of private-sector experience that Sotomayor had?

That having been said, my third point is that the fact that Frum is disingenuous or dishonest does not mean that he is completely mistaken.  Harcourt is, I think, too quick to equate experience as a private litigator with "business law experience."  Of course, being a litigator in private practice exposes you to business law in certain respects, and may give you something of an education about business practice.  But there is indeed a significant distinction between being a private litigator for business and bring a corporate practitioner, whether in-house (especially in-house) or at a big firm.  Litigators come along after the mess has been made, and take the law as a tool in resolving a dispute; they do not work on planning to avoid messes as such.  The nature of their exposure to business, and to business law, is very different from the kind of experience of business one has as a transactional or in-house lawyer, and it is quite possible -- I know! -- to work for many years as a litigator, working for some of the nation's largest businesses, without having a tremendously well-developed sense of the business environment, of what businesses need to do to flourish, or even of significant aspects of business law that are part of the planning rather than the litigation stage of corporate life.  (Indeed, a great litigator may well know far more about, say, civil procedure and federal courts practice than she does about core issues of corporate law.) 

I do not want to give too much credit to Frum, since I do not think his comments were totally honest (or, depending on what he had to say about Roberts and Alito at the time, totally consistent), but I think he is right that private-sector litigation is indeed quite different from business counseling, and that private-side litigation experience is not necessarily the best grounding in "business."  His criticism may have been opportunistic, but that does not mean it was wholly invalid.  

Of course, in another way, Frum is also being short-sighted.  Simply describing Sotomayor as having worked in "government," without parsing out the different aspects of her public service, means that he apparently thinks you learn nothing about business after almost two decades of experience on the bench in our nation's largest commercial center, on district and then appellate courts in which significant developments in business and business law are addressed every day -- in a quite fact-oriented way at the district court level.  Nor does Frum give due justice to the business relevance of Sotomayor's experience on the New York State Mortgage Board or her board experience at Princeton University.  By talking disingenuously about "academia and government," Frum seems to have let these aspects of her experience drop out of sight.       

Medical Restraint

Atul Gawande has a terrific piece in this week's New Yorker about medical costs.  Gawande travels to McAllen, Texas, which he suggests has some of the highest per-person medical costs in the country.  On his analysis, McAllen may have fancier care than one might expect, but it does not have better care, as measured by actual patient outcomes.  What explains the high costs?  Ultimately, he suggests, has much to do with a lack of collaborative monitoring and cooperation to keep health costs down, and much to do with a lack of restraint on the part of local physicians, who "see their practice primarily as a revenue stream" and so order more tests and more frequent office visits, and perform more surgeries, whether those procedures and visits are conducive of better outcomes or not.  Gawande argues that more important than whether we have a single-payer or multiple-payer medical system is whether we have in place networks of collaborative medical professionals who practice "accountable-care" medicine.

This is a law blog, of course, and I am unwilling and probably unable to kibitz on health care policy.  But what strikes me in this article is the interesting set of connections it bears to many standard dialogues about the legal system and about the judicial system.  This week has been yet another reminder that in standard public discussion of the judiciary, one of the favorite terms is "judicial restraint."  This refers largely to the idea that judges should not reach out and make policy decisions rather than rule on "the law" -- a difficult distinction to sustain, although not a meaningless one.  But for some writers, especially the business wing of conservatism, it is also related to broader systemic effects of judicial activism, at least as it is perceived (and leaving to one side, of course, Due Process cases involving punitive damages).  A concern here, sometimes voiced explicitly and sometimes merely implicit, is that judicial activists lead to unpredictability and instability in the law and the socially inefficient overproduction of litigation.  Indeed, I think it is fair to say that at least some advocates of "judicial restraint" also believe in "legal restraint" -- in the cabining of litigation as a means of social change.  One might respond to this that the law, like other areas, is capable of being guided by the market.  If plaintiffs' lawyers are getting rich, then there must be a socially beneficial reason for it; and market forces will also cause a rise in defense lawyers' work and innovation, leading to some degree of market equilibrium between the contending forces in litigation.  Most advocates of legal restraint do not, however, take this view.  At their best, they argue that litigation causes socially inefficient externalities; at their worst, they view plaintiffs' lawyers' wealth as almost morally repugnant.  Their solution is, by and large, one of command-and-control rather than market solutions: they favor a host of "tort reforms," the narrowing of standing rules, changes in class action law, and so on, imposed from the top down.  (As a side note, it is curious how much time advocates of "legal restraint" spend focusing on plaintiffs' lawyers.  If I were the National Association of Manufacturers, or any number of other industry groups that spend lavishly on law firms and free-lunch think-tanks for the purposes of arguing against plaintiffs' lawyers, I would want to devote an equal amount of my time and money to funding arguments and reforms designed to starve big-law firms and other defense-side rent-seekers as close to death as possible.  Does AEI spend a lot of time working on ways of impoverishing the defense bar?  Or is this a simple case of industry capture?)

If I were a believer in judicial and/or legal restraint, surely I would also find the idea of "medical restraint" attractive.  Surely I would want to find ways of making doctors and the medical industry as lean, efficient, and, not to put too fine a point on it, poor as is possible while remaining socially efficient.  I might reasonably argue about whether that goal could best be accomplished through a government-oriented system or a private, or public/private-oriented, system; but surely in either case I would champion the kinds of "accountable-care" mechanisms Gawande advocates, and I would view McAllen as a serious case of market failure.  If I were willing to tolerate command-and-control mechanisms to solve inefficiencies in the legal process, surely I would at least be willing to contemplate similar mechanisms with respect to reform of the medical process.  Nor would I readily accept that tort reform alone would accomplish what I wanted; as Gawande points out, McAllen is a financial sinkhole despite the passage of tort reform in Texas.  Conversely, if I were staunchly opposed to regulating the medical industry, arguing that the market could sort these things out for itself, I'm not sure why I wouldn't be inclined to say the same thing about the legal industry.  And yet, by and large the strongest advocates of "legal restraint" are among the foremost opponents of "medical restraint."  (One could argue the converse as well: that the strongest supporters of medical reform have by and large been among the foremost champions of the plaintiff side of the legal industry, and of privately-directed legal means of seeking social change rather than leaving everything to the political process.)  

This is a tentative set of speculations, to be sure.  Still, I find interesting the dramatic disjunction in the use of rhetoric in these two areas.  If you're a champion of "legal restraint," and if you believe that shrinking the inefficiencies in the legal system demands a host of top-down solutions designed to enhance accountability in the legal system (including loser-pay rules and other methods of forcing lawyers to internalize the costs of their activities), shouldn't you also favor "medical restraint," and be willing to think about legislation and other non-market methods of achieving greater efficiencies in the medical system?  Advocates of legal restraint in some ways are eager to point to places like England and Canada, which have cost rules, caps on damages, and other legally imposed mechanisms that reduce access to justice but are argued to enhance social efficiency; so why do they not look through the same lenses at the Canadian and English health care systems?  (And, as I suggested above, vice versa?) 

Getting Real about "Legal Realism": Sotomayor ain't no "Realist"

There are posts -- the Wall Street Journal and Leiter's blog, for instance -- suggesting that the usual law professor's self-hatred might be clouding the question of how one evaluates SCOTUS opinions. In particular, the notion that Sotomayor is a "legal Realist" because she believes that judges' backgrounds affect their decisions so trivializes actual legal Realism that it is hard for a non-self-hating legal academic like myself to stomach.

Legal Realism is not the jejune observation that judges' psychology matters. Realism is (or was) a specific jurisprudential school maintaining that (1) as a positive matter,legal commands are, to varying degrees, indeterminate and that (2) as a normative matter, the gaps ought to be filled by empirically well-informed and normatively candid and well-reasoned policy-making. It is a piece of goofy anti-intellectualism that even I, a card-carrying anti-intellectual, will not swallow that the insights of the Cohens, Llewellyn, Pound, et al can meaningfully be reduced to the banal bromide that one's ethnicity, character, sympathies, etc, will affect one's decisions. If Judge Sotomayor's endorsement of this obviously true proposition makes her a Realist, then Chief Justice William Howard Taft is equally a "Realist": As Robert Post's superb analysis of Taft's Prohibition Era decisions demonstrates, Taft routinely invoked the "traditional Anglo-Saxon respect for the administration of the law" and denounced the decisions of that "Jew Cardozo" for undermining this respect. (He did not like Brandeis much, either, and for some of the same anti-Semitic reasons).

Believing that people's background affects their decisions isn't Realism: That's is just realism -- and realism so obvious that anyone who questioned the position would not be guilty of Idealism but plain idiocy.

By contrast, a bona fide Legal Realist judge (1) acknowledges that the precedents are ambiguous and (2) makes a valiant effort to fill in the socio-political assumptions that underlie the statute, regulations, or judicial precedents as a way of resolving the case. As an example of Realist interpretation, consider Justice Cardozo's decision in Steward Machine v. Davis, in which he argued that the Social Security Act's provision for unemployment insurance was a device to overcome states' fear of being generous with UI benefits and thereby becoming welfare magnets. Cardozo concluded that the federal statute's taxing states that did not provide a federally approved UI scheme did not, therefore, "coerce" states but rather liberated them from a paralyzing inability to address the Great Depression. Note the signature style of Realism: (1) Candid recognition that the Spending Clause precedents (aka Butler) were a mess; (2) Candid recognition of the policy basis for the federal statute (i.e., to stop "unfair competition" among the states -- a practice that conservatives rather endorsed); and (3) a frankly normative prescription that "federalism" is not advanced if states are paralyzed from redistributing wealth by interstate competition for capital -- a position that, of course, some (Richard Epstein, for instance) would dispute.

Find me a single opinion by Justice Sotomayor that is so candid about the judge's policy-making role created by gaps in precedents or statutes. Find me one opinion in which she is willing to make a controversial policy choice based on a federal statute, acknowledging, as did those arch-Realists, Max Radin and Karl Llewellyn, that the choices really were not in the text. There are lower-court judges who do this Realist thing -- say, Richard Posner or Stephen Reinhardt. But Judge Sotomayor is simply not one of their number. The truth is that Sotomayor is a good, solid grinder. As several commentators like Turley and Adam Liptak have noted, her decisions tend to be connect-the-dots affairs that cleave to whatever caselaw exists -- and, when the caselaw dries up, then she clams up (as in the Ricci decision). She has hitherto exhibited an indifference to social science or to normative philosophizing that any good Realist would regard as excessively cautious or even intellectually dishonest.

Nothing wrong with that cautious and workmanlike approach to judging. (In particular, you'd think that conservatives would be pleased with such a modest and incremental approach). But to call this attitude "Realist" is a bit much. Realism is a sophisticated legal theory, not op-ed pop psychology. We legal academics ought to give ourselves and our predecessors a little more credit.

In the Mail: Looseleaf Casebooks!

In going through a 10-day backlog of mail at the office yesterday, I was psyched to receive binders containing looseleaf copies of two of my casebooks for next year: Dycus et al.'s National Security Law, and the brand-spanking-new sixth edition of Hart & Wechsler's The Federal Courts and the Federal System.

Is it just me, or are looseleaf casebooks the coolest thing since sliced bread?

Hispanic or Not, The Man Could Write

All the recent talk about whether Justice Cardozo was in fact the first Hispanic justice gives me a chance to share what I consider one of the great lines in the U.S. Reports.  In 1936 the Court decided two companion cases dealing with equal protection challenges to a New York milk marketing law.  In one of the cases, Borden's Farm Products v. Ten Eyck, 297 U.S. 251 (1936), the Court upheld part of the law, on a 5-4 vote with the Four Horsemen dissenting.  In the next case, Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936), Justice Roberts switched sides and the Court struck down the other provision, with Cardozo writing the dissent.  Cardozo's dissent begins with this beautifully understated zinger:

"The judgment just announced is irreconcilable in principle with the judgment in Borden's Case, 297 U.S. 251, 56 S.Ct. 453, 80 L.Ed. 669, announced a minute or so earlier."

Whatever label we give to his ethnicity, the man could write a good line.

Final version of How Should Punitive Damages Work? now available

Via the Tarlton Library email at UTexas, I just saw that the final version of my recent piece on punitive damages is now out. It's called How Should Punitive Damages Work?, and it's the second in a projected 4 part series of articles designed to rethink punitive damages policy and doctrine. You can find the most recent and final version of it here. If the piece enrages you with its perverse, futile, or wildly reckless and unconstitutional suggestions, then I think Penn LR will be open to publishing responses through its excellent online companion, Pennumbra.  As a former Pennumbra author, I highly recommend it--your piece ends up on Westlaw and you get the talented UPLR students working on it too. The abstract of the piece appears after the jump. The article's predecessor, "Retributive Damages," is available here; and a synopsis of "Retributive Damages" can be found on the new Legal Workshop website, over here.

What are punitive damages for? In a companion article,* I argued that states should re-conceive and restructure punitive damages to advance, in part, the public's interest in retributive justice. I called such damages "retributive damages." Although that article provided the rationale and basic structure for retributive damages as an expressly "intermediate sanction," and explained why society should want retributive damages independent of other remedial or penal options, the theoretical nature of the proposal only scratched the surface of how they would operate in practice. 

This Article addresses the next critical question: how should punitive damages work? This question is especially timely in light of the Supreme Court's recent decision in Philip Morris v. Williams, which held that juries may not consider the harms to non-parties in determining the amount of punitive damages a defendant must pay. 

To make punitive damages work, we must first separate retributive damages from damages meant either to achieve optimal deterrence (to the extent permitted by Philip Morris) or to vindicate the victim's dignity interests. Because these purposes are distinct, a jurisdiction that conflates them risks both under- and over-protection of various defendants. Once we correctly understand these distinct purposes, our institutional design for civil damages should map these values appropriately.

This Article begins that important task, first by explaining why and how defendants should enjoy certain procedural protections depending on which purpose the damages vindicate, and second, by addressing two critical implementation issues associated with this pluralistic scheme of extra-compensatory damages: insurance and settlement.

*The companion article, Retributive Damages: A Theory of Punitive Damages As Intermediate Sanction, can be found here: .

LSA, etc

Greetings from glorious Denver. Today was the first day (at least in earnest) of the Law and Society conference.  As I think I mentioned earlier, Alice Ristroph and I used the LSA organizational structure to create a mini crim law conference for about 30 people and 8 panels. The first half of those panels was today and the second half is tomorrow (Friday).  On the punishment theory panel today, we had really interesting papers by John Bronsteen (Happiness and Punishment, with co-authors Masur and Buccafusco), Don Braman (Some Realism about Naturalism, with co-authors Dan Kahan and Dave Hoffman; Don's powerpoint presentation was both effective and hilarious--make sure you invite him to your school for this presentation), Mark D. White (In Consideration of Consequentialist Retributivism), and a less interesting and more inchoate set of remarks by me (Bentham on Stilts? On the Bare Relevance of Subjectivity to Retributivism, co-written with Chad Flanders).  It was definitely one of the best panels I've been on in the last four years, with a really good synergy and engagement by the panelists with each other and with an outstanding set of questions from a great audience at LSA. Every aspect of it was better than I could have hoped for, and I'm grateful to the other panelists and the audience for their thoughtful remarks and participation.

Tomorrow morning, bright and early at 815am, my co-author Jennifer Collins and I will be participating in a "Author Meets Readers" roundtables for our book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties.  Tommy Crocker will be chairing the panel, which includes a great group of commentators: Melissa Murray, Don Braman, Naomi Cahn, and last but not least, the incomparable Alice Ristroph. If you're in Denver, we'd love to have you join the conversation. 

Last, if you're in Denver for the few days, make sure you try the great restaurant our panel dined at tonight: Rioja.  The tuna main course and the goat cheese calzone were delish! Thanks to Sam Kamin for the local Denver recon. 

The Troubling Implications of Justice Thomas's Dissent in Haywood v. Drown

For various reasons, the Supreme Court's 5-4 decision on Tuesday in Haywood v. Drown -- a case in which I co-authored an amicus brief in support of the Petitioner -- has gone mostly overlooked by the media and the blogosphere (for previous posting on the case, see here).  I guess between the Sotomayor nomination, the Prop 8 ruling, and the Supreme Court's overruling of Michigan v. Jackson, we fed courts geeks get left behind...

But before the decision fades into obscurity, I wanted to flag the one thing about it that I found noteworthy -- Part II of Justice Thomas's dissent.

By way of introduction, the issue in Haywood is a classic fed courts problem: Under New York law, the State substitutes itself as the defendant in any damages action against a corrections officer brought in the New York state courts.  But because states cannot be defendants to claims under 42 U.S.C. 1983, the New York law has the effect (although not the purpose) of barring a certain subset of 1983 claims from the state courts. The question presented was whether, as such, the New York law in question violates the Supremacy Clause (the New York Court of Appeals said no, albeit in a sharply divided 4-3 ruling).

For the majority, Justice Stevens reversed, concluding that the New York law is not a neutral jurisdictional rule, and therefore violates the antidiscrimination principle set out in the Court's prior precedents (e.g., Testa v. Katt), pursuant to which states may not discriminate against federal question suits.  Justice Thomas dissented, and in the only part in which he was joined by the other three dissenters (the Chief Justice and Justices Scalia and Alito), he argued for why he believes New York's statute was "neutral," disagreeing with the majority's application of precedent.

More interesting, though, is Part II of Justice Thomas's dissent (in which he was writing only for himself).

  Leaving aside his disagreement over the application of precedent, Justice Thomas apparently takes issue with the Court's entire jurisprudence in the field, arguing that "There is no textual or historical support for the Court’s incorporation of this antidiscrimination principle into the Supremacy Clause." He then proceeds to devote half of his 37-page dissent (to a 12-page majority opinion) to explaining why "The supremacy of federal law . . . is not impugned by a State’s decision to strip its local courts of subject-matter jurisdiction to hear certain federal claims." Put another way, Justice Thomas sees no constitutional problem whatsoever with states deciding for themselves whether -- and with what conditions -- federal question lawsuits can proceed in their courts, even when the same state courts are open to comparable claims under state law.

To me, this is a startling argument. Reasonable people will disagree about whether state courts ever have to hear any class of federal question lawsuits without respect to their jurisdiction over comparable state-law claims, and the Supreme Court has assiduously avoided answering that question. But to suggest that states are free to discriminate against federal question lawsuits under almost any circumstance is to turn the Madisonian Compromise on its head, and to invert the Founders' unquestioned belief that state courts, rather than the lower federal courts, would be the more frequent and reliable adjudicator of federal questions.

I often get in trouble with some of my friends because I find deep principles behind a lot of Justice Thomas's jurisprudence, even when I fundamentally disagree with the assumptions behind those principles.  Here, though, I'm not sure what the deep principle is, other than an absolute defense of state autonomy at the expense of the supremacy of federal law... If anything, though, such an absolutist view is actually demeaning to state courts, because it undermines the significant role they were always meant to play in interpreting federal law -- just so long as they came to the federal law neutrally.

What, and Who, is a "Good" Justice?

In a previous post I asked whether brilliance is necessary for a justice, and whether more intelligence = better judging.  I intimated that my inclination was that beyond a certain (very high) level of intelligence, I saw no evidence that yet more intelligence led to better judging.  Larry Solum and others have taken me to task in a variety of ways (check out the comments and Larry's post at his blog for the roasting).

In order to begin to respond to the questions Larry and others raise, let's begin with this: what makes for a good Supreme Court justice?  What are the criteria, and who are the examples?

More on the Olson-Boies Lawsuit: Responses to Comments

I appreciate the responses to my original post on the Olson-Boies lawsuit.  I tried to post the following comments in reply but for some reason I got rejected (rejected by my own post -- hah!)  Apologies for using the post format as a reply mechanism.  But here goes:

1. Sam makes an excellent point when he offers an alternative, or maybe additional, explanation for what might be going on in this case.  As I read it, Sam's post raises the issue of lawyers, like Olson and Boies, who do both a lot of cause lawyering and a lot of paid advocacy.  In particular, Olson's comments at the press conference suggest that he has adopted his clients' position as his own, going farther, I think, than most lawyers do when they're simply paid advocates.  In a real way he seems to be adopting the position as his own.  That takes me back to my question about lawyers "interfering" (if that's what it is) in cause lawyers' long-term litigation plans.

2. I understand Hillel's argument, which is why I framed my post as asking the question rather than stating a view.  Of course it should be clear from the post that I do have a strong view about the wisdom of bringing this case, and about the hubris (if that's what it is) of a high-profile litigator who enters an area he's never engaged with before and brings something akin to a bet-the-cause lawsuit (see point 5, below).  But as a matter of the professional judgment underlying this decision, well, that I don't know.  Boies and Olson are sharp lawyers, to say the least.  As Hillel says, they're certainly capable of making their own strategic calculations.  So what's the argument for deferring?  Maybe professional respect: if they really care about the cause they're advocating I could see them deferring to the people whose judgments have been pretty good up to now, especially when the costs of a loss are high. Those advocates have lived with this issue for years, and it seems to me that both their investment in ultimate success and their obvious continued diligence in getting there (i.e., it's not like they are shirking or getting timid) warrants some deference to their judgment that more building blocks have to be put in place before making the grab for final victory.  (At the very least Olson and Boies could have done them the decency of either consulting or even just warning them, which it doesn't seem like they did, at least from the news reports -- though I could easily be wrong about that.  But if they didn't that just heightens the sense that they're being both reckless and disrepectful, neither of which heightens my confidence in their refusal to defer.)

I'll be the first to admit that this argument doesn't fully persuade.  Maybe it doesn't even come close.  Ultimately, maybe I can't get over the hump of trusting Ted Olson's good faith, and I'm hiding that distrust behind an institutional deference argument.  Or maybe I'm just someone who values procedure, chains of authority and respect for people who have proved themselves.  On those attitudinal questions I tend to be on the Burkean conservative, traditionalist side (my husband constantly mocks me for being a rule follower).  Maybe that's what's coming out; maybe I think lawyers, including cause lawyers, should err on the side of relying on the advice of those that have gone before, and successfully so.

3. As for Ethan, I never thought the amendment/revision argument was as bad as he seems to think it was.  I think ultimately it was correctly rejected, but I don't think its flaws were so obvious that the gay rights advocates who made it have forfeited any claims to leadership.  Moreover, the anti-8 argument really was defensive; by contrast, I worry that the Olson-Boies suit is an ill-considered attempt to grab the brass ring all at once.  So ultimately, I don't fault the gay rights leadership for using the courts to attach Prop. 8, just like I don't fault the pro-8 forces for aggressively defending its legitimacy as an amendment.

4. JP's concise comment seems pretty perceptive to me.  S/he's absolutely right that making policy through litigation carries with it the risk of cause lawyers losing control of the litigation (and thus the policymaking) agenda.  My original post compared the situation today to that faced by Thurgood Marshall when he was running the NAACP's litigation effort.  I'm absolutely no expert on the history of cause lawyering, but I guess what we're now realizing is that, in a real way, a difference between his NAACP world and today is that today litigation can't be controlled by a single group of cause lawyers.  It seems to be a complex question.  Maybe Marshall had the luxury of that control because so few wealthy people cared about the cause he was espousing.  Or maybe those that did care and had the resources to litigate on their own had a greater sense of deference or loyalty.  Or maybe there was some other dynamic.  If Sam's speculation is correct, and this lawsuit is being funded by pro-gay rights folks with deep pockets, then this suggests that both of the characteristics that might have benefitted Marshall have broken down, at least with regard to this issue.  I'd love to hear the thoughts of others who know more about cause lawyering, both then and now.

5. Finally, the tone.  Fair enough: Regardless of any hand-wringing about professional judgment, I am pretty annoyed at this lawsuit.  I have a lot of respect for public interest/cause lawyers who spend a lot of time -- yes, all their professional lives -- crafting a long-term litigation/legislation strategy to get from point A to point B.  For a couple of high-profile litigators to suddenly enter the fray and make a high-stakes, high-risk legal claim may be their right, but it's hard to believe that it's being done in good faith.  Why didn't they write an amicus brief in the Prop. 8 case, warning that upholding Prop. 8 would raise serious federal constitutional issues?  Why haven't they participated in any of the state constitutional litigation over the last ten years?  Why only now, and why the riskiest argument?

So, in answer to law type, I do have a personal reaction to this -- resentment, but not envy -- because I feel like my rights are now in the hands of people who have no particular track record of demonstrating that they have my best interests at heart.  If in fact they do, then at best they seem to be recent volunteers for the front lines, rather recklessly implementing their own strategy when a defeat has consequences for millions of other people.  The gay rights leadership may or may have done a good enough job to warrant my trust or Olson's and Boies's deference (though I have to say I would never have predicted the progress that's been made in such a short time).  But at least I know they've been out there, fighting the good fight on my behalf for a long time.  Ted Olson?  Not so much, though again I'm loathe to discount the possibility that he's had a conversion that places him in opposition to the political forces he's publicly supported for decades, and that has motivated him to take this highly public and risky move on behalf of people whose rights his side has always opposed.

Who knows?  Maybe the combination of Ted Olson and David Boies will persuade Justice Kennedy to take the leap.  If it does then I'll nominate them to be grand marshals of the next Gay Pride Parade, confess during my next Prawfs stint that my susicious overly-cautious attitude would have delayed our victory for decades, and give thanks that people like me are safely in academia where we can't do any harm.  If it doesn't, and if the lawsuit crashes and burns and sets back litigation efforts for years if not decades, I'll look foward to seeing Ted Olson lobby just as publicly for a pro-same-sex marriage plank in the 2012 Republican platorm.  And David Boies doing the same on his side, for that matter.

We are all Realists - but don't tell anyone

One of the things that’s always struck me about judges is how reluctant nearly all of them are to acknowledge the extent to which there is a lawmaking role to the job (at least at the appellate level), and more generally how underdetermined an awful lot of legal questions are.  Given that we’re all Realists, as the cliché has it, and have been for quite some time, one might expect that the ideas would be so ingrained as to be unremarkable.  That’s not the case, of course.  Just today the Wall Street Journal reports that Judge Sotomayor’s acceptance of Realism “is riling conservatives opposed to her nomination.”  And there is also the glee with which those lining up against Judge Sotomayor are pointing to the video of her acknowledging that court of appeals judges make law.  All of which, I suppose, demonstrates why a judge might think it appropriate not to acknowledge the lawmaking aspects of her job.

So let me now do that thing where I say something like, “if you think that’s bad, then check this out.  Imagine the reaction if this judge ever got nominated for the Supreme Court.”  And then, of course, I’ll hit you with the surprise answer at the end.

 Here, then, are some quotes from an actual judicial opinion:

“A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason.  For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law.”

“Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so.”

“The complete separation of the judiciary from the enterprise of ‘representative government’ might have some truth in those countries where judges neither make nor set aside the laws enacted by the legislature.  It is not a true picture of the American system.”

“In fact, however, the judges of inferior courts often ‘make law,’ since the precedent of the highest court does not cover every situation, and not every case is reviewed.”

The quotes are from Justice Scalia’s opinion for the Court in Republican Party of Minnesota v. White.  I realize that there are grounds for distinguishing the two sets of statements if one is so inclined – Justice Scalia’s opinion was talking about state courts, Judge Sotomayor also said that the courts of appeals “make policy,” and so on.  But at a descriptive level they seem to be saying more or less the same thing, and it strikes me as something that ought not be controversial, and probably isn’t among this crowd.

There is, of course, plenty of room for legitimate debate over the normative question of how courts ought to go about the task of exercising this authority to make law.  One of the more frustrating aspects of much public discussion relating to the judiciary is the frequent conflation of these two questions.  I’d like to live in a world in which appellate judges were not conditioned to believe that “making law” is something they must never acknowledge doing.  What follows is a gross oversimplification, but it seems to me that if making law is something that judges must deny doing, then it becomes something that they will not do openly (even as they will necessarily continue to do it).  That, in turn, tends to make it more difficult for the various forces that shape and constrain judicial behavior (see, e.g., Llewellyn's "major steadying factors") to operate effectively, and perhaps easier for the lawmaking power to be exercised irresponsibly.  And that strikes me as more worrisome than an awful lot of what is often lumped under the heading “judicial activism.”

The Walls They Are A-Changin'

I have been teaching Art Law for a number of years, so an article in the WSJ about White House art caught my eye. It seems that along with a changing of the guard comes a changing of the walls. There are also a number of law schools and firms with impressive (if not renowned) collections. As examples, the collections at Kutak Rock and Cleveland-Marshall come to mind. If you could choose any famous work of art in the world to hang in your office, what would it be?

 

Ricci v. McCormack

Some of the attention focused on Judge Sotomayor's position in the Ricci case has discussed the likelihood that the Supreme Court will take the opposite view within the coming weeks, in the middle of the confirmation process.  If that is so, I imagine some writers will take the view that being reversed in a high-profile case says something pertinent about whether Sotomayor is worthy of confirmation, or that it is a deliberate public blow against Sotomayor by the Court, one that is warranted or unwarranted depending on one's viewpoint.  I thought it might be worthwhile to remind readers of a similar incident, one that is interestingly recounted in Woodward and Armstrong's book The Brethren.  The tale concerns Chief Justice Warren Burger.  A week after his confirmation, and one week before his swearing in, the Supreme Court announced its decision in Powell v. McCormack, holding that the House could not deny Adam Clayton Powell his seat for reasons that fell outside the scope of the Qualifications Clause.  The decision overturned an opinion written by then-Judge Warren Burger.

Woodward and Armstrong write, without direct sourcing but fairly clearly from Burger's perspective: "The press would have a field day. . . . The reversal was a typical example of the Warren Court's activism -- mere meddling in Burger's view.  He had already been overruled twice that year, but this was the first time since his nomination.  There should have been some way for [Chief Justice Earl] Warren to avoid a direct slap at him, perhaps with an unsigned opinion."  They then recount a discussion between Burger and Warren, in which Warren tells Burger, "'It was perfectly clear . . . . There was no other way to decide it.  Anybody could see that.'"

In short, plus ca change.  Of course, none of this means that critics of Sotomayor can't disagree with her position in Ricci, or even think that that single vote is cause enough to vote against her, although I don't share the latter view.  But being reversed goes with the territory of being a lower court judge, and the fact of the timing of such a reversal, should it occur, should not be viewed as being especially telling or humiliating.  

Of course, this post takes no position on whether Ricci should be affirmed or reversed -- or, for that matter, on whether Powell was correctly decided, or on whether Burger could be rather pompous and self-regarding on occasion, or on whether Warren was deliberately or unconsciously acting rudely in this case. 

A Tour of New York City's Zoning Dysfunction

I live in the Cobble Hill area of Brooklyn, giving me easy access to one of my favorite running routes – a roughly five-mile stretch of waterfront on the Upper Bay and East River that I call the “dysfunctional zoning tour.” Starting at the IKEA store in Red Hook and running past the Fairway Grocery, I can make my way north along the waterfront on Connoyer, Van Brunt, and Columbia Heights to Furman (right under the Brooklyn Heights Promenade) and on into DUMBO. The running route provides both athletic and academic benefits: There are few busy intersections at which an inattentive runner could be squished, and I get a worm’s eye perspective on what one might reasonably view as the Great Zoning Disaster of 1961 – non-cumulative industrial zones (“NCIZs”), meaning zones from which residential uses are forbidden in order to preserve space for manufacturing.

I can almost hear you yawning over the internet: You think that NCIZs are a topic only the wonkiest of local government law junkies (like myself) could love. But think again, gentle reader: As I shall suggest after the jump, it is possible that NCIZs have devastated the housing market not only in New York City but other big cities where they are used to retain industrial jobs. That these zones have persisted for almost a half-century is, I think, a tribute to the potent combination of (a) developer-driven corruption, (b) the Planner’s Meglomaniacal “Field of Dreams” theory that If You Zone It, They Will Come, (c) the political sclerosis induced by NIMBY-besotted neighborhood activists whose sense of civic duty ends at the shadow cast by whatever building is proposed next door, and (d) a Union-Town mentality that sees the retention of any manufacturing job in the city is worth any cost.

If I am right, then reports of some deregulating frenzy during the 1990s and early 00s might be exaggerated – or, at least, these alleged national trends never penetrated the Big Apple. NCIZ might also be a cautionary tale that our new distrust of markets in the wake of the financial crisis should not lead us too readily to jettison "public choice" skepticism about regulation.

My running route provides an object lesson of the zoning dysfunction. The view of the upper bay and Manhattan is spectacular, stretching from the Brooklyn Bridge to the Verrazano. These are obviously prime acres for residential real estate. Retailers like Fairway and IKEA who depend on residential consumers obviously think so, as do the developers with whom I’ve spoken. But the land, like roughly a third of NYC’s waterfront, is almost entirely zoned non-cumulatively for manufacturing, meaning that residential development is forbidden. Lest you think that this “manufacturing” land is teeming with busy wharves and cranes manned by highly paid union workers, think again: Much of it is empty lots or under-used warehouses. Some of the buildings are abandoned and downright derelict. American Stevedoring Inc still operates a small container port, aided by several millions in subsidized rent from the Port Authority. Golten Marine has a maritime repair facility next door. But, for the most part, my casual glance suggests that Marlon Brando would not be battling the mob but rather unemployment on this waterfront.

Why not let residential development in manufacturing zones as of right, protecting the latter from nuisance suits by the former with a “regulatory compliance” defense? The reason is an odd planners’ ideology, first triumphant with the 1961 zoning resolution, that seeks to reserve land for industry in NYC by preventing residential developers from bidding against manufacturers for lots. This theory maintains that, by protecting manufacturers from this competition, the city can keep good, high-paying union jobs in the city through a sort of indirect and off-budget subsidy of cheaper land.

I’ll assume, as a patriotic New Yorker, that keeping employment in the City from departing to New Jersey serves some greater social good, on the theory (I guess) that somehow Newark just does not need all those jobs as much as we do. Even so, NCIZs strike me as a terrible way to subsidize industry when compared to outright grants of tax revenue because they (a) impose large deadweight losses on residential users desperately seeking housing without actually guaranteeing good jobs; (b) are well-nigh invisible because they are off-budget, inviting tiny numbers of manufacturers to extract cheap land at excessive cost; and (c) encourage well-connected developers to snap up cheap land and then use their connections to secure a re-zoning to residential when the time is ripe for development.

Here is some initial evidence for my three objections to NCIZs. First, they hardly seem to be working well: NYC, after all, had 500,000 manufacturing jobs in the 1970s and only 118,000 manufacturing jobs in 2005. Maybe the thousands of acres of NCIZ'd land is somehow stemming an even greater outflow, but NCIZ defenders rarely tote up the costs of each job preserved in the City in terms of lost housing and foregone tax revenue. One study of Chicago found that Planned Manufacturing Districts did not do much to preserve high-paying manufacturing jobs. I know of no econometric study that makes any effort to see if the NCIZ game is worth the candle. Lots of planners, to be sure, tout the benefits of preserving manufacturing jobs in the City. (See, for instance, the Pratt Institute's study). But they make no effort to consider the opportunity costs of each job preserved in terms of lost housing and tax revenue.

Second, the "cheap land subsidy" provided by NCIZs is really hard to see when compared to on-budget costs of outright grants or even with tax subsidies. This invisibility invites enormous deadweight losses to preserve tiny numbers of jobs. When a manufacturer gets a grant or tax abatement, then it is obvious to minimally informed observers that they are receiving an unusual benefit for which they should be held accountable, because the layperson’s baseline of expectations is that one normally pays taxes and normally does not get grants of money from the City. By contrast, when a manufacturer gets a cheap lot because competing bidders have been zoned out of existence, there is no intuitive baseline of expectations by which to identify or measure the benefit. No one can tell why the residential users never bid on the lot (maybe the land just was not suitable for housing even if re-zoned), let alone the magnitude of the price reduction that the manufacturer received as a result of the zoning restriction.

Third, developers are notorious for seeking re-zonings of NCIZ’d land through intense lobbying through the Uniform Land Use Review Procedure (“ULURP”) of city council in which affordable housing, schools, and other blandishments are offered to buy support from politicians. This might be a nice sort of Henry George-style taxation of land rents if there were any systematic effort by the City to compare developers’ gains to the payout. But there is not, and, as Jerold Kayden noted long ago when studying plazas supplied by developers to the city in return for development rights, the evidence that the City is a good bargainer is not strong. (For the continuing wisdom of Kayden's observation, see this news item). The ongoing effort by the Walentas family to secure a residential re-zoning of land on Dock Street in DUMBO, greased by side payments of schools and affordable housing to city councillors, seems to be a typical illustration (conveniently located on my running route).

Why not, then, allow residential uses as of right in manufacturing zones, depriving the well-connected developers of their competitive advantage and enlarging the supply of buildable land for housing by the over 20,000 acres occupied by NCIZs? (If one wanted to keep that Georgist tax on the unearned increment from the change in use, then just impose a stiff tax on the increased valuation resulting from the re-zoning -- keeping the tax uniform to prevent the orgy of deal-making that would otherwise ensue). My guess, however, is that New York City is a union town with a planner's mentality and too many red diaper babies-turned-Brownstoner ever to adopt such a rational solution. Even the efforts of former deputy mayor David Doctoroff could not penetrate this potent combination. Instead of a frontal attack, the Bloomberg administration has assiduously pecked away at NCIZs by granting specific developers' applications for re-zoning or engaging in laborious re-zonings of selected sites (Gowanus, Red Hook, etc) through pitched battles with unions, neighbors, and land-use activists. Whether this grinding process will eventually produce a sane allocation of land is anyone's guess. But the decades of housing lost is a cost whatever the final outcome.

What's Your Family's Catch Phrase?

Did anyone else here catch the show that was on the other night which counted down the fifty top funniest phrases in TV history?  It was a pretty funny program, although the absence from the countdown of either Good Times' "Dyn-o-mite!" or Different Strokes' "What you talking 'bout Willis?" was really inexcusable.  Among the fifty were such gems as "Two wild and crazy guys," "Aaaaay," "Nanu-Nanu," and "Up your nose with a rubber hose."  The top phrase was "Yada Yada Yada" from Seinfeld.

The program got my family thinking that maybe we should have a catch phrase.  Doesn't every family really need one?  I talked to my wife and son about it, and we decided to adopt the phrase "Daddy Doesn't Know" as our catch phrase.  It's something I say all the time in response to their questions because I don't really know a damned thing.  The catch phrase, though, involves more than just saying the words.  There's kind of a special way to say them and some body movement as well.  If you're interested in checking it out, we've posted a very short movie on YouTube, and I invite you to give it a look.

Does your family have a catch phrase?  If so, I hope you will share it with us here.

"Federal Court? Wow. Never Thought of That."

The above quote, from Matt Coles, Director of the ACLU's LGBT Project, appears in the New York Times article reporting on the Ted Olson David Boies lawsuit challenging Prop. 8 in federal court.  (Ethan blogged about this lawsuit yesterday.)  One of the commentors to Ethan's post expressed some cynicism about Olson's agenda, and in the Times article a number of prominent gay rights advocates, like Coles, expressed some reservations about the timing of the suit.  I have no clue what Olson's (and Boies's) reasons are -- maybe they're sincere, or maybe, as suggested by a commentor to Ethan's post, they're cynical.  It's surely the case that the lawsuit represents a massive gamble: if it's successful in the lower courts the Supreme Court is bound to step in, and if Olson and Boies lose at the Court then the issue will be off the federal constitutional radar for a long time, maybe decades.

What I'm curious about is the appropriateness of cause-driven lawyers taking up a cause that wasn't previously theirs, and taking steps opposed, or at least avoided, by the architects of that cause's long-term litigation strategy.  To translate: it's apparently been the common wisdom among gay rights advocates that premature federal constitutional litigation on gay marriage could be harmful to that cause.  That makes a lot of sense to me, though for present purposes what's important is that the (fair enough, self-appointed) leaders of the movement think so.  Then in step Olson and Boies, filing their challenge the very day the state supreme court announced its impending decision in the Prop. 8 case.

Again, leave aside the possibility that this suit is a cynical ploy to create a blockbuster Roe-like federal constitutional/political issue just as the Republican Party is finding itself devoid of winning arguments it can make to the American people.  I don't like casual allegations of bad faith, and it would impugn a lawyer's reputation to make this kind of charge without evidence.  And the presence of David Boies -- surely, nobody's fool -- casts further doubt on the conspiracy thesis, unless Olson and Boies are simply making different political calculations.  Rather, what I'm interested in is the interloper aspect of the lawsuit, where Olson and Boies swoop down, pluck some plaintiffs off the ground and fly off the federal court with a high-profile lawsuit and even a fancy new organization.

Is this appropriate?  Note, this is not an average litigator getting a visit from a same-sex couple who really want to get married and decides to not worry about larger political implications but simply to advocate for the rights of the clients in front of him.  That seems absolutely appropriate to me -- maybe even compelled, though I don't know enough about the relevant legal ethics rules to make that last judgment.  I have got to assume that Olson and Boies picked this cause, and only then went looking for clients.  Indeed, Olson's comments yesterday support this interpretation, which of course jibes with what we all know about high-profile lawyers like these two -- a lot of their work is all about causes, not individual clients per se.

If that's true then it's hard to avoid the conclusion that Olson and Boies have intervened in the strategy directed by other cause lawyers -- among others, the ones quoted in the Times article as expressing  concern and even annoyance about the lawsuit -- who have made gay rights their lives' work.  (Hence the title of this post.)  At best this strikes me as naive; at worst (again leaving aside the cynical political explanation) it strikes me as an arrogant hijacking of a long-term process worked out by someone else.  If Thurgood Marshall were still alive he would probably react to this lawsuit by expressing gratitude for the unpopularity of civil rights litigation in the 1930's: at least he didn't have to fend off others' attempts to bring a school desegregation case to the Court before the time was ripe.

Just to state the obvious: if this lawsuit is successful then I'll be thrilled.  I wish Olson and Boies good luck and good lawyering.  But they've grabbed a baby out of someone else's hands and are running pretty fast with it.  I really hope they don't drop it.

Can a Run Really Count When the Runner Never Crosses Home?

So I'm taking a break from grading con law exams to watch my favorite team (the Mets) beat up on my least favorite local team (the Washington Don't-Call-Them-"Natinals"), and there was an odd play in tonight's game:

With no one out and Gary Sheffield on first base in the bottom of the sixth inning, Daniel Murphy hit a ball that appeared to glance off the facade of the second deck before landing in fair territory. On the field, the umpires ruled that it was in play (and so must not have hit the facade), and Sheffield was thrown out at home trying to score. After going to the video, the umpires overturned the call, and ruled it a two-run homer.  Murphy, who stopped at third, finished trotting around the bases, and the Mets took a 5-3 lead.

Here's my question, though:  What about Sheffield, who was thrown out at home before the replay?  Doesn't he have to go back and touch home at some point? If not, is it possible that I witnessed the first time (or, at least, one of the first times) in major league baseball history that a run "scored" without ever crossing home? 

I raise this because baseball's rules are notoriously formalistic when it comes to crossing home -- think back to Robin Ventura's "Grand Slam Single" in the 1999 NLCS.  So even if Murphy's shot is a homer, doesn't Sheffield have to cross home before his run can count?

Or is this just proof that technology will overcome even the most fundamental of all rule-based systems? Where are our jurisprudence scholars when we need them??

And Now for a More Plausible Challenge to Prop 8 . . .

I have to confess that I never thought the Prop 8 challenges in state court had a legal leg to stand on.  I'm not happy with the outcome of the case because I take no pleasure in my state's denying gays the equality they so obviously deserve.  But the consequences of the court striking down Prop 8 under the theories offered by the opponents of Prop 8 in state court would really have been quite serious: coming down the other way would essentially have made a mockery of governing law in this area and would have been itself a quite serious constitutional revision of direct democracy's role in California's governance and state constitution.  Many people don't like direct democracy and would love to undermine it in any way possible.  But I didn't think this was the right way to revise California's constitution.  I'm a gay rights advocate.  Not this way, though.  And I had assumed we'd win at the polls soon enough. 

But I confess I do take great pleasure in Ted Olson taking on the case.  The Bush lawyer in Bush v. Gore is now filing a federal lawsuit to have Prop 8 overturned on federal grounds: that denying same-sex couples the right to marry violates the federal Constitution.  And he's looking forward to arguing it in front of his buddies at the Supreme Court.  Now that argument just might be a winner -- and there is certainly a firm legal footing to support that argument even if it loses the day.  One can still worry about backlash, about judicial role, and about whether gay rights advocates should go this route instead of a more piecemeal legislative and hearts-and-minds campaign.  But the nerdy lawyer in me has no qualms about this lawsuit the way I had serious reservations about the legal house of cards upon which the state argument was made.  And I'm delighted by the courage Ted Olson is showing in making the right argument against Prop 8, even if it alienates him from large segments of the Right and even if the Left wasn't quite ready to take the gamble.  Ted Olson is now making the argument gays strategically avoided, the Republicans can't stomach, and even our audacious President is too scared to make.  Quite an interesting turn of events.

Alex Acosta to be dean at FIU

I am thrilled to report that R. Alexander Acosta, currently U.S. Attorney for the Southern District of Florida and former head of the Civil Rights Division at DOJ, will be the new dean of FIU College of Law. Acosta graduated from Harvard College and Harvard Law School and clerked for Samuel Alito on the 3d Circuit (my old circuit). FIU press release here.

This is a great hire for us. Acosta has connections in the Miami market that will be a tremendous help for us in attracting students, getting them jobs, and raising money--the three areas in which we are most lagging. I admit to having been initially apprehensive about a non-academic dean. I was won over by hearing about Acosta's efforts as a non-prosecutor taking over a prosecutors' office; the parallels to a non-academic taking over a law school were pretty striking. And we are in pretty good company with schools that recently have gone the non-academic route for dean. Could this be something of a new trend?

And, of course, there is the fact that this played out so publicly, thanks to Florida's Sunshine laws and having a high-profile political figure in the mix. In the end, I do not believe the coverage skewed the outcome, but it definitely changed the way the process worked.

I would pause to compliment and thank our outgoing dean, Leonard Strickman, who got the place off the ground and carried us through the fill-in-the-box steps of ABA and AALS accredidation. Acosta's role is to get us to the next level and I am convinced we got the right person.

The symbolic stakes of the Establishment Clause

It seems to me that the Establishment Clause, at least as it is viewed by the Supreme Court, it increasingly about symbolism. What I mean by this is that more and more, the Establishment Clause disputes that tend to make it to the Supreme Court are over religious speech, symbolism, and the like, where no real financial or other "concrete" stakes are involved. I wouldn't be surprised, moreover, if this reflected a trend in the lower courts as well.

For example, if I'm not mistaken (and I'm sure someone will correct me if I am), all of the Supreme Court's Establishment Clause cases since 2004 have revolved around symbolic or verbal endorsements of religion, with the sole exception of Cutter v. Wilkinson (2005). One might even say that this trend reaches back to the 1990s, in which the big cases were primarily about symbolic government endorsement of religion, except that there were a few equal-access cases mixed in (Rosenberger, Lamb's Chapel, etc.) that can't completely be categorized as such, since the parties were fighting in those cases at least in part over funds or access to other privileges that are not purely symbolic in nature. But contrast those two decades with the 1980s, in which the Court spent much of its energy hashing out the minutiae of the Establishment Clause problems involved in channeling funds to religiously affiliated entities.

What to make of this difference? More after the jump.

Now, I'll admit I've identified a fairly small "n" from which to generalize. Nonetheless, I'd guess a few things are involved: first, it simply may not be worthwhile to challenge funding programs that benefit religiously affiliated institutions anymore, since Zelman v. Simmons-Harris, the 2002 Cleveland school vouchers case, seemingly created a situation where governments would almost have to be trying to violate the Establishment Clause for a funding scheme not to pass muster. Second, perhaps we are now, in the age of the culture wars, simply more attuned to and concerned about the symbolic or expressive dimensions of government conduct and its implied designation of insiders and outsiders. Finally, and relatedly, I would like to suggest that a concern about symbolic favoritism toward religion is and really always has been at the heart of the meaning of the Establishment Clause. The Framers themselves agonized over the constitutionality of legislative prayer, Thanksgiving Proclamations, and the like, though no significant concrete or financial benefits from the government flowed from them.

Other thoughts?

Classroom Twitter Pages

Many of us already use a variety of electronic resources in the classroom, but what about using Twitter?  Personally, I think it might be useful for some purposes, but I can't imagine it replacing TWEN or basic e-mail. It could create interesting opportunities for faculty and students from a variety of law schools to communicate with each other, and the 140-character limit would make reading go quickly (and encourage tweeters to get to the point). There are certainly pros and cons to consider. If you're already using it, how is it working? If you're not using it, would you consider it?

Deborah Hellman on Prop 8 decision, Peter Westen, & Equality

Deborah Hellman sent me the following thoughts on the California Supreme Court's Prop 8 decision and Peter Westen, which I post below:

"Peter Westen famously argued that equality is an empty idea. The basic point he made in his influential article was that the idea of equality could never tell you how much of a particular good a person is entitled to, nor whether she has a particular right. Moreover, equality cannot require that the state treat each of us the same, as the state clearly may treat us differently when there is good reason to do so. The famous aphorism for the rule of law ideal, “treat like cases alike,” is meaningless, he argued, because the important question will always be: which cases are relevantly like which others? And the California Supreme Court unfortunately agrees.

"Yesterday, that court decided that Proposition 8 – which “added” text to the California Constitution providing that “[o]nly marriage between a man and a woman is valid or recognized in California” – was an amendment to that state’s constitution rather than a revision of it. Because an amendment requires only the process used to pass Prop 8 (a referendum), while a revision would require a constitutional convention, this decision upholds Proposition 8. Prop 8 itself overturned the prior decision of the state’s highest court holding that the California Constitution forbids limiting marriage to opposite-sex couples. The court reached the conclusion that Prop 8 is only an amendment to the constitution by finding that the change it makes is not to constitutional fundamentals. It did this by reading equality as an empty idea.
The court reasoned that gay men and lesbians can afford themselves of the civil union opportunities California provides. In the court’s view, while restricting the designation of “marriage” to gay couples is not irrelevant, it does not constitute an abandonment of the state’s commitment to equality because this is a fairly limited restriction. Prop 8 is a constitutional amendment because it makes a minor change, merely limiting the designation of “marriage” to some people while still affording others the actual rights they deserve – to be able to form families, have meaningful relationships, etc.

"This decision shows Westen’s mistake, as well as what is at stake in how we conceive of the norm of equality. Equality is not an empty idea. It requires that the state treat each of us as equals. Westen is right that equality does not require that the state treat us the same in all circumstances. Nor does the norm of equality tell us what particular rights (other than equality) we each have. If the state wanted to stop granting marriage licenses to anyone, essentially leaving the designation “marriage” to religious or other private parties to confer, and simply grant civil unions to both straight and gay couples, the right to equality would not be offended. In that sense, no one has a right to “marriage.” But what equality does demand is that the state must treat us as people of equal worth. This command forbids the state from drawing distinctions among people in a way that is demeaning. Justice Moreno of the California Supreme Court explains in his opinion, concurring in part and dissenting in part, that “[d]enying same-sex couples the right to call their relationships marriages treats them as ‘second-class citizens.’” It is this that equality forbids.

"One cannot help but think of Justice Harlan’s famous dissent in Plessy, “as all will admit, … the real meaning of...” the law is “that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Today we might say, “as all will admit”, the real meaning of Prop 8 is that the relationship between couples of the same sex is not equally valuable as the relationship between opposite sex couples and therefore does not deserve the name of 'marriage.' While this is not exactly the same as branding gays as inferior, Prop 8 surely brands their relationships as inferior, which is awfully close."

Affirmative Action in Michigan & the Hunter-Seattle Doctrine

What should a law professor think of judge’s refusal to enforce plainly applicable doctrines simply because those doctrines are politically unpalatable? The ongoing litigation against my old academic home in Coalition to Defend Affirmative Action v. Regents of University of Michigan raises precisely this question. The plaintiffs are challenging the constitutionality of a state constitutional amendment (“Proposition 2”) banning the University of Michigan’s affirmative action programs. The district court has ruled against the plaintiffs, and the briefs have been filed in the Sixth Circuit. But one suspects that the doctrinal niceties of the case are dwarfed by the following obvious political reality: No court will ever declare that a state’s voters are constitutionally prohibited from jettisoning affirmative action if they so desire, because judges regard the voters’ power to control such controversial policies as essential to those policies' democratic legitimacy.

At issue in the case is whether Michigan’s affirmative action ban falls afoul of the slippery equal protection doctrine of Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) invalidates this state constitutional ban on affirmative action (“Proposition 2”). These cases have come to stand for the principle that state law may not “allocate governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” Washington, 458 U.S. at 469. Invoking this principle, Hunter struck down a city charter amendment barring the city council of Akron from enacting Fair Housing ordinances prohibiting discrimination on the basis of race. Likewise, Washington struck down a state-wide ballot initiative prohibiting school districts from adopting race-based student assignments not required by the Fourteenth Amendment.

As a purely doctrinal matter, it is difficult to see how this doctrine should not also result in the invalidation of a state constitutional ban on affirmative action. In upholding Prop. 2, Judge David Lawson argued that, unlike Michigan’s affirmative action programs, “racial integration programs [like Seattle’s busing program] do not presumptively offend the Equal Protection Clause” and that “[race-based] [d]esegregation [in K-12 education] is constitutionally required in certain instances” whereas “the Supreme Court has never held that affirmative action is required, and Grutter made it clear that it is barely tolerated” (Pages 5-6 of Judge Lawson’s opinion denying plaintiffs’ motion to alter or amend judgment). None of these arguments are very persuasive in the wake of Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738 (2007), in which the Court held that race-based student assignments in K-12 education are now just as suspect as any other race-based classifications. If Washington’s ban on (presumptively unconstitutional but sometimes permissible) race-based busing is unconstitutional because that ban “mak[es] it more difficult for certain racial and religious minorities to achieve legislation that is in their interest,” then it is hard to see why Michigan’s ban on (presumptively unconstitutional but sometimes permissible) affirmative action is not equally an infringement on these minorities’ power to achieve (admittedly suspect) legislation.

But the doctrinal details are obviously beside the point: It is hard to avoid the conclusion that Judge Lawson simply could not swallow the idea that Michigan’s voters cannot get rid of affirmative action if they so desire. Was this lawless behavior, or was it a judge’s legitimate (albeit clumsy) effort to reconcile norms of federalism and popular sovereignty with a doctrine that seemed to cut too close to those constitutional values?

After the jump, I’ll offer a couple of reasons why federalism and popular sovereignty might not be offended by invalidating initiatives like Prop 2 on Hunter-Seattle grounds. But my larger question is whether readers believe that it is appropriate for an inferior court to take such big structural considerations into account to “construe” and limit a precedent that otherwise seems plainly applicable.

On the specific question of whether the Hunter-Seattle doctrine, rightly understood, interferes inappropriately with federalism, I (a certified federalism nut) think that the question is more uncertain than many allow. The doctrine, after all, does not prevent Michigan from prohibiting affirmative action programs. If the state’s voters want to create a comprehensive code for public universities listing the factors that can play a role in university admissions but leaving out race, then they are free to do so so far as Hunter-Seattle is concerned. The Hunter-Seattle problem arises only because the state has set up a system of administrative discretion in which (for instance) the University of Michigan’s regents have broad discretion to decide whether or not to consider any number of educationally tangential factors – alumni status, geographic origin, poverty, professional experience, extra-curriculars like jazz band or debate club, etc – but must ignore any plea by their constituents to consider race. This is the sense in which Prop 2 is (in Justice Harlan’s words from his Hunter concurrence) akin to “dilut[ing] [a] person’s vote or giv[ing] [a] group a smaller representation than another of comparable size.” If Michigan wants to amend their constitution to get rid of the Board of regents and turn their functions over to the state legislature, they are free to do so under Hunter/Seattle. Likewise, Michigan’s voters could simply enact a “university admissions code” that left out race altogether from the list of permissible factors without offending Hunter/Seattle. But, having given their regents enormous discretion over university policy, Michigan's voters cannot then gerrymander an exception to this broad jurisdiction just for issues especially beneficial to a racial segment of the population.

Is such a doctrine consistent with federalism? Consider the following defense of the doctrine in terms of federalism. Federal regimes are valuable because they protect institutions (states) that are politically accessible to a lot of constituencies. Each state is not a monolithic entity but rather a collection of counties, municipalities, special districts, public universities, and literally hundreds of elected executives (e.g., insurance commissioners, D.A.s, sheriffs, drain commissioners, etc), all unified by a constitutional framework that allows them to make coherent policy without treading too injuriously on each others’ toes. These polyglot entities are superior (in my mind) to the federal government precisely because they radically reduce the costs of political participation by shrinking the size and multiplying the number of electoral districts: The average member of the U.S. Representatives raised roughly $2 million in 2005-2006, while expenditures in state elections tend to be much smaller, ranging from $10,000 per representative in states like Idaho that have electoral districts with very small electoral districts to $500,000 in California’s much larger state senate districts.

But the democratic legitimacy of this highly permeable system is undermined by “carve-outs” that eliminate the ability of certain constituencies – especially racial ones – to take advantage of the access that the system affords. Hunter-Seattle can be regarded as a safeguard against this sort of carve-out by requiring that states' voters or legislatures define the powers of the state's institutions without reference to the interests of particular groups. For instance, if the state wants to centralize municipal benefits policy in, say, a single administrative board, then it can do so under Hunter-Seattle. But a state’s banning cities only from providing same-sex employment benefits comes close to offending the principle of equal political access (assuming that the Hunter-Seattle doctrine extends beyond the racial context).

In this sense, Hunter-Seattle is consistent with that other Hunter doctrine -- Hunter v. City of Pittsburgh, 207 US 161 (1907), which declared that cities lack constitutionally protected property or contract rights against the states that create them. Hunter-Seattle preserves this state discretion to centralize vast swathes of policy-making (university admissions, public employee benefits, etc) just so long as the state paints with a reasonably impartial brush.

I do not pretend that these formulations resolve the predictable questions of what it means for jurisdiction to be defined with "reasonable" impartiality. But I do not think that the threat to federalism or popular sovereignty posed by Hunter-Seattle is plain enough to justify a lower federal court's evasion of the doctrine's plain terms.

Trial experience, pleading, and the Supreme Court

One thing that has not been talked about at all is that, if confirmed, Sonia Sotomayor would be the only justice with experience as a trial judge. One criticism leveled at the Supreme Court for its recent pleading decisions has been the justices' apparent lack of awareness or care for how trial pretrial practice works on the ground or for how difficult it is for lower courts to make heads or tails of the Court's "guidance" on the issues. The hope is that a justice with trial-court experience can make her colleagues aware of life and litigation on the ground.

On subjects such as pleading, this may cut in multiple directions. As several commenters on some recent pointed out, there has been an ongoing back-and-forth between SCOTUS and the lower courts over pleading. Until Twombly in 2007, it had been the lower courts trying to ratchet the requirements up (especially in civil rights and antitrust cases) and the Court pulling them back (likely to the chagrin of the trial courts, who were looking to control their dockets). Now, it is SCOTUS taking the lead on telling the lower courts to demand more from the complaints, but with somewhat mixed signals and without much specificity as to what they should be looking for from pleadings. The result may be more cases being dismissed at the pleading stage, or it may just be another round of motion practice that district judges are going to be forced to deal with.

Moreover, the solution of ratcheting up the pleading requirements is based on the assumption that there is no other way to avoid abusive, expensive, and burdensome discovery for ultimately unfounded claims. The Court has twice rejected the idea that we can trust trial judges to wisely exercise their discretion and to keep discovery in check. It will be interesting to see if a former trial judge is as willing to assume such a lack of competence by lower-court judges.

Sotomayor <> Miers: A Brief Rundown

I've heard this comparison enough (Dreher, Ponnuru, Buchanan on MSNBC) that I thought a quick bullet-point presentation might be in order:

• Sotomayor is not a close friend and counsel to the President; Miers was.

• Sotomayor has the most federal judicial experience of any Supreme Court nominee in over a century; Miers had none.

• Most importantly, Miers suffered from a crippling ideological disconnect from the base of the President that appointed her.  Sotomayor has no such disconnect.  It was the right wing of the GOP that killed Miers.  I'm baffled that folks like Ponnuru and Buchanan seem to have blocked this out.

Daily Kos has a cute analogy game here.  Anyway, I think there's one more difference: Miers was great for the legal blogosphere.  Sitemeter was off the charts!  I predict no such boom for Sotomayor.

How Smart Do You Really Have To Be?

Note: I have edited the title of the post to better reflect its intent and content. --HYL

Okay, so I was a little off.  Stunningly wrong, actually.  This is why they don't pay me the big bucks.  Then again, people pick the Cubs to win the World Series every year and still get paid the big bucks.

I want to ask the prawfs community a question. 

We have already seen a lot of punditry on whether Judge Sotomayor has the intellectual chops necessary to be a good Supreme Court Justice, and we can expect to see much more.  (As I argued in my previous post, I think she obviously does.)

Lurking in the background of this debate is an unstated assumption that being a Supreme Court Justice is an extremely difficult job that requires intellectual capabilities that only a few of even those most obviously qualified possess.

My question is simple: how smart do you really have to be to be a good Supreme Court Justice?  And, as a follow-up, exactly what is it about Supreme Court judging that requires this level of brilliance?

Some Quibbles With Rick

Rick has posted a well-written comment on the National Review's Bench Memos blog, which I've already had occasion to speak ill of once today.  I stand by that, by the way, not because it's conservative but because I think too many of the bloggers there are reflexive, rabid, and, well, silly -- Rick (and a perfectly fair post by Gerard Bradley) excluded.  As always, I don't think such traits are exclusive to the right, and that's why I rarely read either NRO or its mirror-image blogs on the left.  But my writing about Wendy Long sent me back there, and I ran across Rick's post.  He writes, in substantial part:

Look for expressions of regret [over potential smear tactics], and calls for seriousness, civility, and the like, in the days to come from President Obama’s surrogates in the press and in the activist groups.  You will have to look harder, though, for journalists to observe, and these surrogates to admit, that (a) the “let’s use Supreme Court nominations as occasions to smear good people” tactic is one that the Democrats — but not, in fact, the Republicans — have practiced enthusiastically; (b) that Justices Breyer and Ginsburg were easily confirmed, with substantial Republican support, not because they were “moderate,” but because the Republicans voted in accord with the “President gets his (qualified) nominees” standard; and (c) that dozens of Democratic senators, including the president, abandoned this standard (to the extent they ever respected it) and disgraced themselves by voting against Justice Alito and Chief Justice Roberts, easily among the most impressive nominees in history.

It also seems safe to predict that the press will, as they swoon over Judge Sotomayor’s personal story and Ivy League credentials, forget the extent to which Justice Thomas’s own story did not protect him from outrageous attacks, and his own prestigious degrees did not prevent snide insinuations that he was merely the beneficiary of affirmative action.

Let me add some qualifications to Rick's observations.  

First, I agree with him that the Democrats have used Supreme Court nominations -- and lower court nominations! -- to smear what I would call "good people."  This I think is a symptom of what I wrote about earlier -- that because most nominees are reasonably qualified, and most debates over nominees are really about broader substantive questions, we often turn to precisely these kinds of questions.  But I would point out that, in the post-Bork era, we have had only two (and now three) Supreme Court nominees appointed by Democrats, so it's a little early for Rick to assume that his brethren will refrain from similar behavior; moreover, if they do, I hope he will point out to them (at Bench Memos, not on Prawfsblawg!) that "tit for tat" is not a morally sound justification for what he seems to believe is immoral conduct.  Also, I would remind Rick that "impeach Earl Warren," the attacks on Abe Fortas (factually justified, but that does not mean the attackers' motives were pure), and loud whispers about William Douglas's multiple marriages were not Democratic tactics.  I would also say that I cannot say with certainty whether or not Republican senators have been equally fair-minded toward Democratic lower court nominees in the past 16 years (I know the Democrats have played hardball with GOP lower-court nominees over the same period!), and given the low number of high court nominees put forward by the Democrats in that period, his moral account will be incomplete without considering this too.  Finally, I would also point out to Rick that by focusing on Republican attacks on Democratic nominees in arguing that Republicans play fair with nominees and Democrats don't, he is ignoring a key Republican tendency -- the tendency of the party, especially its right wing, to attack itself like an autoimmune disorder.  To the proposition that Republicans don't play dirty pool with Supreme Court nominees, I would add the pert rejoinder: Harriet Miers.

On his point (b), I agree with him that it is foolish to call Breyer or Ginsburg moderates -- largely because, and I would have thought Rick would agree, terms like moderate are largely unhelpful in this context.  In many ways both nominees were quite liberal; in other ways they were somewhat conservative; in still other ways they were "moderates," in the sense that both were technicians and technocrats rather than Douglas-style judges.  But I take it that Rick agrees with the old saw that the legislature is a they, not an it, and that it is difficult to divine the motives of individual legislators from their votes, or even, indeed, from their actual statements.  So I would be less quick than Rick to draw any conclusions, one way or another, about why the Republicans voted as they did on Ginsburg or Breyer.  I assume one reason was that some of them thought such a vote would backfire, that another is that some of them had other places where they wanted to spend their political capital, that another is the one Rick suggested (let the President have his nominee) -- and that still other GOP senators actually did think both nominees were "moderate."  I am not qualified to say.  I am amused, both about Rick and most certainly about myself, that we are both probably trading our usual positions about the value of legislative history!  In any event, I'm not sure why Rick assumes that "let the President have his nominees" is, in fact, the standard all the GOP senators have adopted (whether or not they have said so publicly).  And I'm also not sure whether it's the right standard.

Similarly, on his point (c), while I don't doubt that some or many Democrats have indeed voiced this standard, and that some or many of them haven't lived up to it, I would be less confident saying it about them en masse.  While I haven't canvassed all of his statements and wouldn't be surprised if he hasn't always been so candid, certainly, say, Senator Schumer was up-front about stating that ideology may validly play a role in supporting or opposing a nominee.  For a Senator who believes that this is true and who acts on such a belief -- and I wish more Senators on both sides were willing to do so openly! -- voting against even a qualified nominee on ideological grounds is no "disgrace," although it may be wrong or foolish.  As I suggested earlier, I would far rather see those kinds of votes and discussions than see people play shell games about who is "qualified" for such a position, or see them make the usually phony argument that they are only willing to give the President deference for non-extreme nominees, but that this nominee happens to be a rabid extremist.  Democratic Senators, including Obama, said this kind of thing about both Roberts and Alito, and I generally thought it was nonsense, so I can agree there with Rick.  Most of the writers on Bench Memos have already said the same thing about Sotomayor today.  I trust that Rick agrees with me that this is also nonsense, and that it would be equally "disgraceful" coming from a Republican senator as it is coming from, say, Kathryn Jean Lopez, Michael Greve, or Roger Clegg, to take just a few examples of people who have said egregiously silly things on Bench Memos today.  Finally, a slight, slight modification.  The vote against Alito was too high, in my view, and it was "dozens" (although, again, that doesn't mean all of those votes were either hypocritical or disgraceful; they could have been wrong, but that's not the same thing).  The vote against Roberts was also too high, but it was not "dozens"; it was less than two dozen.  And will Rick give the Democrats of a few scant years ago, as history counts, it, corresponding credit for Scalia and Kennedy, both confirmed by unanimous vote?

Finally, on Thomas, I agree with him that, leaving aside the press for a second, people tend to swoon more over biographical details when they are also in ideological sympathy with the biographical subject, and to ignore or question them when they are not.  Sometimes the skeptics raise valid questions about these individuals!  But the point is that we are rarely skeptical about such things when we are predisposed to like the individual in question, and more often skeptical of or simply willing to ignore these stories when we're predisposed against that person.  But I would suggest that Rick is himself indulging in a little rewriting of history.  (This is the title of his post.)  A good deal of the early media script did indeed focus on exactly the "Pin Point" narrative that he's talking about here, and this no doubt was part of the Bush White House's selling job on Thomas.  Indeed, for me part of the tragic lesson of the Thomas nomination, whatever the truth of the underlying charges, is that when the other party presents a viable nominee with a good story and neither side wants to talk about their broader substantive disagreements, the opposition will go digging for ways to paint the nominee as a devil.  (And the nominating party will be equally disposed, sometimes equally foolishly, to insist that the nominee is actually a saint.)  That is just not a healthy process.  But for what it's worth, I guarantee Rick that some Republicans, whether actual senators or, more likely, staff members (and former staff members -- hello, Manuel Miranda!) and talk-radio types, will either ignore Sotomayor's compelling story -- they certainly won't spend all their time talking it up! -- or questioning whether she deserved to get into Princeton in the first place, or will simply adopt the Thomas strategy of looking for other dirt.  (Indeed, there's some fool over on the VC comments page right now insisting that he'd pay good money to see how low her LSAT scores were.)  I do tend to agree with Rick that many members of the mainstream media are liberal in their personal orientation and that this can bleed into their work in detrimental ways.  But I assure him that Fox News, at least, will adopt something like the approach I've talked about.  

On hearing that I was writing this, my wife said to me that Rick would "break up with me."  So let me say that despite any of our differences, Rick is simply one of my favorite people in the legal academy, both personally and in his work and his actions.  I love you, man!  But I can't see eye to eye with you on this one.  Again, I think we'd be better off disagreeing over the real substance of our disagreements, however quickly that may sometimes lead to a conversational impasse, than by playing the game -- even the meta-game of talking about the process itself.     

  

Initial Thoughts on the Prop. 8 Decision: Back to Where We Started?

The California Supreme Court has issued its decision in the Prop. 8 case, upholding (on a 6-1 vote) the validity of Prop. 8 as an amendment to (rather than a revision of) the California Constitution, but also upholding (on a 7-0 vote) the validity of the approximately 18,000 same-sex marriages (including mine) entered into between June and November, 2008.  Chief Justice George, who wrote the opinon granting same-sex marriage rights, wrote the opinion released today.  Justice Kennard concurred and Justice Werdegar concurred in the judgment (disagreeing with the majority's amendment-revision analysis but agreeing with the result).  Justice Moreno was the dissenter (he was on at least one Obama short-list for the Sotomayor nomination; I wonder how much they knew about his impending dissent).

It's a long opinion (the majority comes in at 136 pages), and since I've only had a chance to skim it lightly I won't comment on the merits of the analysis.  But one interesting issue popped up relatively early in the opinion: the possibility, about which I blogged last November, that a ruling in favor of Prop. 8 left some room for an advocate to argue that the only way to comply with both Prop. 8 and the constitutional analysis in the Marriage Cases was to deny the status of marriage to everyone.

The basic version of the argument is fairly clear: Prop.8 states that only opposite-sex marriages are valid and recognized in California, but the state constitution's equal protection guarantee requires that sexual orientation classifications be subjected to strict scrutiny.  Presumably, the state can honor Prop. 8's language without discriminating against gays and lesbians only by denying marriage to everyone.  Q.E.D.

Chief Justice George may well have been aware of this issue.  Thus, early in the opinion he characterized the Marriage Cases as defining the substantive right at issue as "the opportunity of the individual to establish . . . an officially recognized and protected family . . . entitled to the same respect and dignity accorded a union traditionally designated as marriage" -- a right "distinct from the right to have one's family relationship designated by the term 'marriage'" (p.34).  Today's opinion makes it clear that that latter right -- the right to a status that has all the respect and dignity of the status of marriage -- is not affected by Prop. 8.

This analysis complicates the simple version of the argument described before the jump.  Now the issue becomes whether denial of the term "marriage" to same-sex relationships implies unequal respect or dignity.  This is, of course, exactly what many same-sex marriage-rights advocates have been arguing all along, especially once civil unions started to be offered as a way of resolving the issue.  It surely seems to open the door for a legal argument to that effect.

Are there any clues about how the court might resolve that argument?  Justice Werdegar, in her concurrence, wrote, after noting the strict scrutiny requirement that remains in effect after today, that "all three branches of state government continue to have the duty . . . today as before the passage of Proposition 8, to eliminte that remaining important differences between marriage and domestic partnership, both in substance and perception." (p. 9) (italics added)  She then drops a footnote that says in part that in the Marriage Cases the court "explained how the assignment of a name other than 'marriage' to same-sex unions creates the perception of second-class status, perpetuates disparagement based on sexual orientation, poses practical difficulties for same-sex couples and their children, and threatens privacy."  (pp.9-10, fn.8) She concludes the text of her opinion as follows: "For the state to meet its obligations under the equal protection clause will now be more difficult, but the obligation remains." (p.10)

Of course hers is just a concurrence, but, combined with the majority's language there's at least room for litigation.  But also room for creative action by the state.  Given how much the court relies on the technical status of marriage as the only item affected by Prop. 8, and given the constitutional imperative to maintain a same-sex relationship status that has the equal dignity of marriage, I wonder if we're going to see proposals to essentially have exactly the same forms, legal status and procedures imposed for both marriage and domestic partnerships, with the caveat that only opposite-sex relationships will be referred to as "marriage."  I mean, for example, literally, a form that is entitled "Application for Marriage/Domestic Partnership" and a certificate that says "Certificate of Marriage/Domestic Partnership" with boxes for the clerk to check based on whether it's a same-sex or opposite-sex couple.  And amendment of all state laws to substitute "marriage or domestic partnership" where "marriage" used to be.

Even if the state does this, there may well be litigation.  And it might be fascinating to watch.  If domestic partnerships really do get all this equal legal status, the the marriage/domestic partnership distinction almost becomes a distinction made for its own sake.  That characterization would seem to tee up a federal equal protection challenge, if anyone was willing to bring it.

Who knows.  But certain things do seem clear at this point.  First, today's opinion doesn't settle the issue of what marriage law will look like in California. Second, ironically enough, in the course of settling the law we may be back to the same question that's been on the agenda for several years now: how important is the word "marriage" to the true equality of same-sex couples with their opposite-sex counterparts.

Again, this is all based on an exceptionally quick read.  If I missed something I'd love to hear it.  I'll be saying more about it after I do some more grading!  

How Should We Play the [Sotomayor] Game?

So, the announcement has been made, and the press releases -- pro and con -- that have been sitting ready for days and weeks now are shooting their way back and forth like a screen-capture from Joshua in Wargames.  Not to mention the oncoming barrage of blog posts, which, although perhaps not drafted in advance, in many cases will prove no more fresh or surprising than if they had been.  I have written before that the Supreme Court confirmation process has become, in effect, a game.  Not in the sense that it's meaningless or trivial; of course it will have real-world effects, although those effects will be far less great than some of the ensuing arguments will make it seem.  Rather, it's a game in the sense that it follows an evolving but reasonably stable set of standard rules and moves, in which everyone knows and plays their part.  That many people will be passionate about this -- that they will be convinced that they are not simply playing a part, that this nomination and this nominee matter more than most -- does not refute this point; football players and their fans go through the motion about a dozen times a year, and to tell them each game is the same old game, that each is more or less predictable as a game, if not in outcome, and that there's no point getting worked up about it would be a pointless conversation.  And, as I've also written, like other games, the Supreme Court confirmation game is also about goods that precede and in some ways can be more important than the actual identity of the nominee (hence the brackets around Sotomayor's name in the title of this post), because it serves other purposes: fundraising, ideological wagon-circling, political advantage, and, tying these all together, the simple perpetuation of activities -- and jobs! -- that depend on a continuing supply of those goods.  So, of the Sotomayor nomination, I say with weary resignation, let the games begin.

Of course, the academic stance I'm giving above, although I think it's true to life, is also part of the game.  So let me play my part, too, with a few instant observations.  First, I've relied heavily in writing about these issues recently on the statements of Wendy Long, of the conservative Judicial Confirmation Network.  I'm not singling her out because of some animus.  Rather, two things make her a great example: she plays her part so well and so transparently, and her income and raison d'etre so clearly depend on her playing it, regardless of who is chosen.  We could, I think, say the same thing about National Review's Bench Memos blog (and no doubt many liberal blogs), and today the two converge.  Long writes on the blog:

Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written.  She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench.

Not to put too fine a point on it, but this is bullshit.  Not in the sense that it is untrue!  Some of these criticisms may be well-founded, or not.  Most of them are relatively meaningless or unproductive, in the sense that they barely make factual claims at all, but just state -- really, restate -- vague and contestable value judgments.  Those judgments may be fair or unfair; mostly, they depend on your agreement with antecedent premises, such that any useful discussion of Long's statement really has to be an argument about those premises, not about Sotomayor.  

And that's the final point: most of these statements are suitably airy that they could be voiced about just about anyone Obama was likely to nominate.  I am sure that the phrase "liberal judicial activist of the first order" would have appeared in a statement from Long no matter who the nominee was.  Similarly, I could draft a critical statement of similar length and accuracy right now that would describe just about any nominee the next Republican President is likely to put forward, without even bothering to ponder a shortlist of potential nominees.  

That's the sense in which Long's statement is bullshit.  In a (Harry) Frankfurterian sense, it does not matter whether Long's statement is especially true or false about Sotomayor -- to Long, whether she knows it or not, or to anyone else.  It may be that this is inevitable; it may be that it is largely impossible to have a particularized and productive discussion about anyone who is likely to make it through the Supreme Court vetting process, short of the kinds of personal accusations that characterized (and in many respects marred) the Thomas nomination.  But this is the very definition of buillshit I am using here.  We are engaged in a conversation in which, in some ways, both sides of the dialogue are not so much telling the truth or lying, but speaking in a way that is relatively indifferent to whether what they say is true or false.  We are having a conversation that purports to be about an individual -- Sotomayor -- and that plugs in suitable pieces of her biography or her public statements or her decisions from time to time, but which is largely indifferent about whether we are speaking accurately about that individual, because we are really talking about something else -- whether to support liberal nominees or conservative nominees, regardless of how much or little it actually matters, or whether the Democrats should win or lose, or what we think about abortion, or who is to have the political and fund-raising advantage, and where Wendy Long (or Ralph Neas, or some FedSoc or ACS official) is to have his or her next expensed meal (or which law professor is going to speak to which network!).  The Sotomayor game is not an unimportant game, although its implications can be exaggerated.  It does have real-world effects, as I wrote.  And, of course, it is not unimportant, financially, ideologically, or otherwise, to those who will find themselves playing it.  But it is a game, and it is substantially a bullshit game.

In that sense, let me make two recommendations.  They may seem somewhat contrary to my suggestion that we are having a conversation that pretends to be concerned with the particulars of Sotomayor herself but really isn't, but I think they are actually in service of this point.  The first is that it is somewhat pointless, barring exceptional circumstances, to care too much about the particulars of Sotomayor's record.  My point is not that her background or record are irrelevant, but that both parties have learned to nominate individuals who meet any plausible set of expectations that we might hold of a Supreme Court Justice: the nominee will be reasonably smart, experienced, talented, and so on.  Indeed, that is why we pretend to care so much about particulars, about individual decisions or statements or even gaffes -- and why, when those talking points fail, we dig for other behavior (sexual harassment, corporate conflicts, drug use, etc.) that might serve as disqualifiers.  Both parties at this point can be relied on not to nominate idiots or monsters; that leaves us arguing over what each side will argue are telling details, but which rarely are.  Whether or not Sotomayor said that a wise Hispanic woman will reach better decisions than an old white guy, I doubt her overall record will actually suggest someone who departs from pretty standard notions of impartiality and the rule of law.  Whether she was right or wrong on the New Haven case, her opinion will turn out to have been voiced in, or capable of being voiced in, the kind of standard professional rhetoric that judges and their clerks can employ to make a wide range of views "reasonable" in a professional sense.  As for Long's accusation that Sotomayor believes that judges "should dictate policy," what Sotomayor really said was that judges inevitably make policy, and everyone who is not a talk-show host already understands this, from Scalia on down.  (From the second and third pages of Cardozo's Nature of the Judicial Process: "I take judge-made law as one of the existing realities of life. . . . Not a judge on the bench but has had a hand in the making.")  So, absent some extraordinary evidence that is highly unlikely to arise, let us not waste time turning trivialities and incidentals into talking points and issues for debating societies.  Let us not pretend that some particular statement or decision gives away the truth about the nominee.  If we want to discuss liberalism versus conservatism, let's do that; but let's do away with the pretense that we're really talking about the particular nominee, or that some sound bite should make the difference between confirmation and rejection.

Conversely, and with all due respect to my guest co-blogger Rob, a former Sotomayor clerk, let us please dispense with the argument that Sotomayor should be confirmed because she is the best nominee in the best of all possible worlds.  She may be -- I doubt she is, but I'm largely (and I think soundly) indifferent on this point -- and she may not be, but that is a silly standard.  Rob rather famously wrote here that Sotomayor is "an absolutely brilliant jurist and an absolutely brilliant person" (emphasis in original!).  He added that he made this judgment on the basis of having:

worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan’s graduate school, which was widely considered the best department in ethics in the world when I was there.)  Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. 

I can't, of course, say that this is untrue, not having met Sotomayor or, I dare say, most of the smartest people in the world.  I would note that that the comma between "world" and "in both" in Rob's sentence above should be omitted if his statement is to be genuinely accurate.  I highly doubt that the very best minds of the world can be found in either law or philosophy; Rob has, at best, worked closely only with some of the very best minds in the world in law and in philosophy, and that's not at all the same thing as working with some of the very best minds in the world tout court.  I doubt even the more qualified version of Rob's statement.  I don't doubt that some of the best minds in law and in philosophy could have been found at Yale and Michigan, but both faculties obviously also contain some lesser minds, and for many reasons, geographical and so on, many of the genuinely very best minds are likely to be found dispersed among many other institutions or, in the case of law, in private practice.  (Not to mention the likelihood that many of the very best minds in either subject are not English speakers or Anglo-American lawyers.)  Even assuming that the qualified version of Rob's statement is true, I do not assume that working closely with these individuals is a good way to evaluate how brilliant they are.  Surely all former proteges and law clerks realize just how much their relationship to their mentor or judge, the particular nature of that relationship, the filio-piety of the academic and legal worlds, and their own experience can distort an objective evaluation of the people with whom they have worked closely.  The last person I would go to for an objective evaluation of, say, Harry Blackmun, is a former Blackmun clerk.  So maybe Sotomayor is as brilliant as Rob says -- maybe there are none more brilliant -- but I doubt it.

In any event, that standard is neither necessary nor sufficient.  First, it is hardly necessary for a Supreme Court Justice to be the smartest person in the world.  However difficult the job is, it is not that difficult.  Second and more importantly, lawyers and other workers in the intellectual industries can seriously overstate the importance of brilliance.  Many other qualities can be as or more important to the job, such as humility, perspective, a reasonable degree of self-doubt, practical wisdom, good judgment, and so on.  Lacking these qualities, a supremely brilliant nominee would not necessarily be a good choice.  I see no reason to think Sotomayor lacks a reasonable degree of these virtues -- again, I think the vetting process and the degree of experience one must accumulate before being considered for the job largely takes care of this for virtually any imaginable nominee of either party.  But my point is that Sotomayor neither especially needs to be the world's most brilliant person, nor would she necessarily be suited for the job if she were.  I think we can see some evidence of that in the rest of Rob's post, in which he conflates brilliance in the sense of intelligence with brilliance in a variety of other qualities, such as getting the most out of her employees.  

There is a further problem here.  Setting up Sotomayor as the very best, or (what is not the same) the very smartest, possible nominee again leads us to focus on batting back and forth over what amount to trivialities, in which we either argue that Sotomayor cannot be the world's best nominee because she once said something stupid, or in which we go to heroic lengths to justify every statement Sotomayor has ever made.  (Remember Bush 41 saying that Thomas was the best possible nominee for the job?  And liberals arguing that this was an absurd statement?  Neither proposition ultimately had much to do with whether or not Thomas should have the job, of course.)

Finally, and again somewhat in contradiction to Rob's post, and for that matter in contradiction to Jeff Rosen's earlier article, let us not waste undue time arguing over whether Sotomayor is loved by her clerks, or by advocates before the Second Circuit, or conversely whether she is brusque or impatient.  I personally find these qualities very important, and am likely to prefer people who do not forget how to treat those around them over those people who take on superior airs or treat others badly, whether or not one person is "better" at some job than the other.  But this is a personal predilection.  In a deeper sense, though, I doubt it matters that much.  The old saying holds that no man is a hero to his valet; for law clerks, it is more true to say that every man is a hero to his valet.  But neither is that important.  Whether Sotomayor's former clerks love or hate her says something about how she does her job, and maybe about what kind of person she is (although, again, law clerks are unreliable sources), but very little about how well she does her job in ways that the rest of us have any reason to be concerned about.  Similarly, oral argument is itself only somewhat important to a judge's job -- and being liked during oral argument is still less important than that.  It is interesting to hear Jeff Rosen and others argue about what lawyers thought of Sotomayor's behavior on the bench, but, really, I see no reason to care much whether they liked her demeanor or hated it.  She could be a perfectly horrible person and a perfectly qualified Supreme Court Justice, and vice versa.  (And what of the relationship between any of this and the "empathy" debate?  It is possible to be empathetic in carrying out one's duties, professionally empathetic as it were, and yet oblivious to the feelings of people immediately in one's path.  That's crummy, in my view, but utterly common.  And, again, vice versa; how many people who preach social justice and fairness for all also yell at their secretaries?)

This has been a very long post indeed, and since I've suggested that most of the debate about Sotomayor will be, in a sense, rehearsed, one might ask whether it's worth talking at such length about all of this.  I think so.  My point ultimately is a little peculiar, perhaps.  It's not that by recognizing all of what I've argued above, we could have a more productive discussion of Sotomayor.  Rather, it's that there is very little point in having very much conversation about Sotomayor at all.  The more we talk about her, the less likely it is that we will actually be talking about her at all -- unless we sidetrack ourselves with mostly trivial and pointless arguments about particular speeches or decisions, or about alleged smoking-gun issues of personal or even professional conduct.  The real conversations we ought to have are about the very questions that (in addition to the financial/power/etc. incentives I've already noted) cause our conversations about Sotomayor or any other nominee reach such a fever pitch, one that is inevitably disproportionate to the actual nominee himself or herself: should one be conservative or liberal, should one favor abortion rights or not, which party should take political primacy, and so on.  Those are the issues we are actually debating when we purport to argue about a specific nominee.  Debates over those issues are, of course, generally unproductive, although they are the stuff of our broader political dialogue.  But we can't make it otherwise by arguing about the details of particular nominees.  We can't turn an endless (and, for some, professionally rewarding) debate over essentially contested principles into a useful conversation by pretending that we're actually having a dispute over individual nominees -- especially when, given how well both parties are vetting their nominees, those nominees' bona fides are largely incontestable.  

Again, just because this is largely a game does not mean it is not an important one, or at least one that some people will care very much about playing.  But we could play it a little more honestly, or at least be a little more honest about the fact that we are playing it.  We could have unproductive but honest debates about the fundamental issues that actually concern us, rather than pretend that the things we are actually talking about are all that important.  And if that feels too absurd -- if we acknowledge that it's pretty ridiculous to argue over what Sotomayor said in one line of a speech, and equally ridiculous to argue over how brilliant she is, but we think it's just as ridiculous to have another conversation about Roe v. Wade -- perhaps we could just talk less altogether.  Frankly, I could think of worse things.  I see no special reason to care all that much about giving Wendy Long, or Kate Michelman, or whoever else, a generous income, or to give law professors like me a more prominent forum.

 

   

One Small Victory

I don't have strong views about the merits of President Obama's decision to nominate Judge Sotomayor to the Court.  But I am pleased that now she will not be defined by the speculation that's swirled around her over the last few weeks.  I don't know her, and don't know her judicial work, but she's obviously highly accomplished with an extraordinary personal story.  It's unfortunate that in our political culture it's normal for such accomplished people to be mentioned as a candidate for a high position, only to be brought down before that person has had a chance to speak for herself.  Instead of going down in history as the judge who was deemed not smart enough to be on the Court, without any chance to rebut that charge on the national stage, she will now get her chance.  Regardless of what one thinks of her work or her politics or even her suitability for the Court, that's a small victory for decency that should please everyone.

Debating the Guidelines

In my posts so far, I have simply assumed that there exist reliable quality guidelines to measure the quality of empirical work, and then I have looked at how these guidelines should be used. To understate things, this is a substantial handwave. These guideline can be quite difficult to develop, and in this post I want to touch on some of the important issues raised by these challenges, particularly for litigation.

The litigation problem is easy to define:

1. In many cases, the scientific dispute can be dispositive.
2. Different guidelines can reach different conclusions, even when applied to the same set of studies.
3. The result of a case can thus turn on which set of guidelines is used.
4. It is hard if not impossible to assess which set of guidelines is superior.

At first blush, then, shifting from jury fact-finding to systematic reviews simply replaces one kind of arbitrariness--that arising from epistemic incompetence--with another, namely the choice of guidelines. There are, however, two responses to this, one short-run and the other long-run.

The short-run response is that this may be a short-run problem. Quality guidelines are still in their infancy, and some of the disagreement across guidelines will, I hope, disappear as the field matures. After all, many guidelines fail to agree on what constitutes quality in the first place; and quality terms are often asserted, not empirically validated themselves. But with time, definitions of quality should converge, and already there is work on testing the relevance of particular quality items. In fact, the short-run conflict in guideline outcomes could have long-run benefits, since it highlights the issues that need attention.

But long-run problems will persist, both with regards to quality and empirical validation/guideline disagreement.

1. Quality. At the end of the day, quality is a normative issue. All might agree that minimizing bias is important, but there is no objective way to state how bias and efficiency should be balanced, and there may be normative disagreement about the very relevance of other quality components (such as the ethics of the study design). There are two ways to approach this problem.

First, we can think of quality's definition as a matter of law for the judge to settle. What counts as quality can be left to the judge. And defining what quality is is likely a far easier job, and one judges are far more capable of undertaking, than deciding whether a particular study meets that definition. Moreover, this is the kind of task we frequently ask judges to do. In many ways a ruling about whether evidence should be excluded from a criminal trial is a question about how our definition of quality should take into account a constellation of normative values.

Second, and more challenging, empiricists in all fields--not just epidemiology--may be forced to confront the deeper epistemic challenge laid down by Diana Petitti:

[I]f epidemiologists cannot define what constitutes quality in non-experimental studies, how is it possible to do studies that we all agree have merit? If meta-analysis fails because quality is elusive, then all of non-experimental epidemiology fails for the same reason.

This is not an issue for the courts to resolve, but the sciences. As they wrestle with this significant problem, the legal system may likely be able to do no better than judicial definitions. But explicit judicial definitions of quality would be a huge step forward, injecting a powerful dose of transparency into the process, and perhaps encouraging a debate within the law about what good evidence should look like (without requiring legal actors untrained in the sciences to debate whether particular projects satisfy those standards).

2. Dueling guidelines. Over time, guideline standards may converge. But at least two problems should remain, one of which cannot be eliminated. Some disagreement in how to measure particular quality elements may persist, and different analysts always run the risk of applying identical guidelines differently.

First, what happens if two sets guidelines agree on what is quality, but (1) disagree about how to measure it, (2) each use empirically validated measures (and neither can be shown empirically to be better than the other), and (3) reach different conclusions? This could be seen as a flaw in guidelines. I see it as a core strength. Dueling validated guidelines are epistemically informative: they tell us the answer, and that answer is "we do not know." This is an answer we must become more comfortable with, an issue I will turn to in an upcoming post.

But guidelines are often developed for a particular problem, so at least in the litigation setting we won't have dueling guidelines, just the awareness that a different set of guidelines has the potential to reach a different answer. Does this eliminate the usefulness of guidelines for litigation? No. First, the development of off-the-rack quality terms and validated measures will minimize this problem. Second, it is important to avoid the utopian fallacy. Sure, different guidelines could reach different answers. But so too could different juries listening to the same experts. The real question is: will guidelines lead to the right answer more consistently? Or, perhaps: will guidelines lead to the right answer with sufficiently greater frequency to justify the impositions they put on, say, party control?

This utopian fallacy argument can be used to address the second problem as well, namely the important role of judgment in guidelines. Guidelines ultimately will include some sort of subjective element ("does the study properly control for endogeneity?" or "is the sample size sufficiently large?"), and different subjective answers can lead to different outcomes. But again, jurors and partisan experts are applying their subjective judgment, so the question is whether independent experts limited by rigorous guidelines will do a better and more consistent job at doing so. By now, it should be clear what my prior beliefs are about the answer to that question.

Evidence based policy is still in its infancy, and how it should fit into the legal system is a question that scholars and legal actors are only just beginning to address. It may be that EBP will have to mature more before it is ready to be incorporated into the legal system, and so we should not stop considering less extreme alternatives (such as hot-tubbing) in the interim. But at the same time, we should not look at the current limitations of EBP and despair of it ever being useful to the law. It is a growing field, one that is maturing every day. And after all, at one point in his life, Usain Bolt couldn't even walk.

Six (!) Catholics on the Court?

So, it sounds like President Obama will nominate Judge Sonia Sotomayor to replace Justice Souter.  Could it be that we will soon have a Supreme Court that is two-thirds Catholic (and 1/9th "White Anglo-Saxon Protestant")?  Poor Chris Hitchens!  And now for some bold punditry:  I am going to go out on a limb an predict that we will not seen op-eds like this one if Justice Sotomayor's votes are consonant with the social-justice teachings of the Catholic Church.

Padel's Resignation from Oxford

The AP via NYT reports:

Oxford University's first female Professor of Poetry resigned Monday after acknowledging she had helped publicize charges that her rival for the post had sexually harassed a former student. Ruth Padel, 

the great-great-granddaughter of Charles Darwin, made history at Oxford when she became the first woman to be elected to the position of Professor of Poetry since the job was created in 1708....But Padel's election was marred by Nobel literature laureate Derek Walcott's decision to withdraw as a candidate from the election after anonymous letters attacking him were sent to Oxford academics. British newspapers reported that the letters made reference to an allegation of sexual harassment made against the St. Lucia-born poet by a former student in the 1980s. The papers said the letters included references from the book ''The Lecherous Professor: Sexual Harassment on Campus,'' by Billie Wright Dziech and Linda Weiner, which carries allegations against Walcott made by a Harvard freshman in 1981. At the time of his resignation, Walcott said he had never commented on the claims and would not do so now. But he called the anonymous letter campaign an attempt at character assassination. Padel came under increasing pressure after The Sunday Times quoted e-mails it said she had sent to two unidentified journalists drawing their attention to the book. In a statement announcing her resignation, Padel acknowledged sending the e-mails. But she said she did not engage in a smear campaign, explaining that she had only passed on information already in the public domain. ''I acted in complete good faith, and would have been happy to lose to Derek, but I can see that people might interpret my actions otherwise,'' she said in the statement.  Oxford University, which has been embarrassed by the controversy, said it respected Padel's decision and that ''a period of reflection may now be in order.'' A new election is expected sometime before the current Professor of Poetry, Christopher Ricks, steps down from his post at the end of the summer.

What do you all think about this? Is it wrong to draw attention to material in the public sphere--or to do so anonymously when one is the other candidate for the position? Was Padel engaged in a form of anonymous cyber-bullying? Was Walcott's resignation an appropriate form of just deserts? What if Padel had been approached by the journalists and/or offered the information on background and acted in response to student concern? Is it really enough to warrant the claim that she won the professorship as part of a "scurrilous ... campaign"? Last, consider this provocative, but probably unreasonable, claim by one commentor for the Independent:

With Padel too, the shockwaves set off by her emails suggests that ambitious women are not allowed to play hard. Men can and do use any weapons they have when battling against competitors, but not so the gentler sex. How many male professors across the land can honestly say they have always played fair to reach where they are?

I confess, I have no idea how this issue would play out in the US. Some of it reminds me of The Human Stain and Disgrace--two super novels by Roth and Coetzee, respectively.  Thoughts?

Books of Brilliance

Since Paul has already identified the truly important material in this week's NY Times book review, it remains for me to note David Brooks's piqued reaction to Simon Schama's "The American Future: A History."  Brooks disdainfully places it in the "brilliant book" category -- "the sort of book written by a big thinker who comes to capture the American spirit while armed only with his brilliance," and one can feel the indignant irritation radiating off the screen.  The genre includes Bernard-Henri Levy's psychological road trip across America, "American Vertigo," in which the redoubtable Frenchman goes on safari through l'Amerique profonde and reports back on the zoological curiosities encountered along the way. 

I've not read Schama's book, but I am actually more interested here in Brooks's reivew.  I did read portions of Levy's book, and I also recall Garrison Keillor's angry and rather ungracious review of it a few years ago.  I wonder how much longer we are destined for this predictable game -- one which de Tocqueville began, and played well to be sure, but whose staleness seems to increase with each new iteration.  Are we forever condemned to play the earnest, irritated, self-important simpletons?  They tweak.  We react.  And they give off that familiar culturally knowing chortle at the reaction -- as regular and predictable a pattern as one can find in Henry James's renditions of Americans abroad (the majority of which are now more than a century old).  Che noia. 

It does not help in the least when Brooks trots out the exceptionalist nonsense that "of all the books it is impossible to write, the most impossible is a book trying to capture the spirit of America."  Gimme a break.  This bit of embarrassingly pious drivel is attributed to Jacques Barzun, a particularly odd source of inspiration, since Barzun has shown little reluctance to write "books of brilliance" -- but maybe a declinist intellectual history of the entirety of "Western Cultural Life" just isn't nearly as audacious as capturing the ineffable spiritual essence of a comparative baby on the historical scene.  

Here's my strategy for breaking this obnoxious and tiresome cycle.  Now that we have been provisionally re-admitted to the global confraternity of cosmopolites, having put our anti-deluvian renaissance squarely in the rear-view mirror, perhaps it's time to turn the tables.  I suggest a new genre -- one in which those with pretensions to be American public intellectuals tool all around south-western France (avoiding Paris, of course -- we are only interested in la France profonde) and write "spiritual essence" books of brilliance that explain France to the French (or, insert here your own favorite European stalking horse).  Then we can at last play the provocateur, and we can respond to the eminently predictable indignation with a well-placed "Quelle mouche t'a pique', mon cher?"  Do you think summer money might be available for this sort of enterprise?    

The Best Books in the New York Times Book Review...

...often aren't among the books reviewed that week.  They're the self- or vanity-press-published books advertised in the Review.  Some of these books, it should be said, go on to enjoy larger fame and have been picked up by major presses for substantial advances.  Still, the descriptions of these books are often priceless.  My favorite this week is the one for a book titled The Adventures of Marshal Gabby Tucker, Volume One: Family Ties in the West, which can be found at this site:

This exciting Western follows the Tucker family as they search for their kidnapped son, Lefty.  The large family joins forces with local native Americans to find the group of lost boys.  Full of humor and adventure, you'll find yourself glued to the last page.

If that last sentence is true, let me offer an advance review, sight unseen: You won't be able to put this book down!

More on religious freedom, exemptions, and SSM

Picking up on Bill A.'s recent post (here), I thought Prawfs readers might be interested in this piece, by Peter Steinfels, in the Times ("Same-Sex Marriage Laws Pose Protection Quandary"), and this post, by Andy Koppelman, at Balkinization ("Support Your Local Bigot").  Both items relate to the efforts of several law professors (including Michael Perry, Doug Laycock, and Andy -- here is their letter to New Hampshire's governor -- and Robin Wilson, Carl Esbeck, Tom Berg, and me -- here is our letter).

Andy's thoughts regarding the question, "what is bigotry, anyway, and why is it a bad thing?" are interesting:  "Bigotry is wrong for two reasons", he writes, "First, it harms the people who are its objects. Second, it is a moral failing on the part of the bigot. It is important to distinguish these."  In his view, the objection to religious-liberty exemptions to same-sex marriage laws cannot really be that they will harm gay people, "because they will only be invoked by a few people and won’t have much effect on gay people’s opportunities.  It is rather that we shouldn’t accommodate bigotry."  And, in his view, there is no need to "beat up on" "antigay bigots, even the morally reprehensible ones," if "they can be rendered harmless."

Like Andy, I do not believe that all of those who support (as I do) and who would invoke religious-liberty exemptions from SSM laws are "bigots."  (I suspect Andy would be generous in admitting people to his category of those "on that side of the political divide who . . . are honestly doing their best to pursue the right as it is given to them to see the right.")  I do believe, though, that anyone who would claim the label "liberal" should support at least some such exemptions -- not simply because it is not worth the candle to beat up on "harmless" bigots -- but because the refusal (and even, frankly, the reluctance) to concede that there are some contexts or spheres (e.g., the internal polity and practices of a religious community) into which liberal norms need not extend and upon which they should not be imposed is profoundly illiberal.

The Asinine Evidence for Largely Irrelevant Inquiries: Kagan and SCOTUS

I just got back the other day from a quick trip to Israel, where I was teaching a mini-course on punishment and sentencing at Bar Ilan, so I haven't had a chance to do much substantive blogging lately. That said, in the morass of catch-up, I did come across a recent judicial politics posting on NRO (which I came across via ATL) that I though warranted some response. 

In her post, Wendy Long argues that Elena Kagan shouldn't be awarded any points by conservatives in the post-Souter confirmation process for her purported success in making HLS more hospitable to libertarians and conservatives. Why not? Because under Kagan's tenure as dean, only 3 "conservatives" were hired (Goldsmith, Manning, and Vermeule), and this represents only 7% of the hires made during Kagan's time as dean.

Long's argument is based on a simplistic understanding of law school hiring. 

If Long's inference is to be valid, one must assume that a dean of HLS (like other law schools) can simply appoint or not appoint persons to the faculty of her choosing.  But that assumption cannot be granted.  There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance. 

Two more points: first, if the number of conservatives or libertarians hired is thought relevant to gauge the open-mindedness or moderateness of a dean, then so too (if not equally in weight) would be the number of offers made by faculties and deans--one can't always lure every conservative away, even to a place like HLS. But Long gives no information on the number of offers made but rejected. Second, Long also provides no evidence or argument on the number of stellar "conservative" faculty who should have (or plausibly could have) been appointed to the HLS faculty. There might well be the same kind of "size of the pipeline" arguments in this context that are raised in other contexts. While there are many talented conservative and libertarian scholars, how many of them would be clearly "above the median" of the HLS faculty if the goal of the faculty is to improve itself? Long says nothing on this.

In sum, taking credit or blame for faculty hiring is a bit like Presidents taking too much credit or blame in the managing of the economy. Senators (or citizens) should not think that Kagan's potential merits as a Justice are diminished in any way on the grounds of the putatively small number of conservative faculty hired during her tenure as dean. If one is inclined to agree with the analysis above, or parts thereof, I think it makes sense to consider to what extent it makes sense to hold deans "responsible" or accountable for the numbers of women or minorities hired also. Problems in faculty hiring are almost invariably the product of a "they," not a she.

That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice.  Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? Does the same hold true for women and minorities? If the answer to those questions is yes, those are marks of a good dean. And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But the achievements  of a good dean are not the same as the achievements or virtues that conduce to being a good Justice--a point that should make readers even more suspicious of Long's tendentious post.  

Law school hiring observation III: the Prawfs hiring thread

This post is not so much about the hiring process itself as the hiring thread that Dan and the other co-bloggers were gracious enough to organize and host.  As before, these are only my own thoughts and I think it worthwhile in this context especially to emphasize that they may well reflect the point of view of exactly one person.

The first time I had a go at the market a few years back, the process felt quite opaque to me, and it was discomfiting to feel that events were happening, people were being phoned, interviews scheduled, and so on, without my having the foggiest idea about any of it.  This past year, the thread helped to alleviate some of these anxieties.  But it was also a comfort to see in the thread that other people were feeling as I felt -- in the dark and not knowing what might or might not happen.  There was a kind of camaraderie that I felt with the anonymous throng -- and when one feels alone, camaraderie with a nameless and faceless horde of competitors is better than one's own special solitude.  Actually, the second time around, I was lucky to have friends who were going through the process with me and I knew a few people in the academy already who also knew that I was at it and alleviated that sense of alone-ness. 

I gathered from some comments and other responses to the thread that some of those who thought it a good idea did so because of the commonly-voiced and faintly metaphysical notion that "Information wants to be free" -- that just because data was available, it ought to be known to all and that was reason enough.  I have never agreed with this view.

Information does not want to be free.  Information does not "want" anything.  The possession of information is not inherently good or right or deserved, and it is not true that if information exists, everyone necessarily benefits from having an unceasing supply of all of it.  It is people that want information, not the other way round, and people ought to want information for particular reasons -- reasons that they should be able to articulate and explain.  Otherwise, the unabating glut of information, coming in wave upon towering wave, can become just as alienating -- just as lonely -- as the total absence of it.

For me, the thread was valuable insofar as it communicated to people what was happening with the schools in which they had interest.  That seemed important since sometimes it can happen (no, say it ain't so!) that a school is not, shall we say, as prompt about keeping a candidate apprised about the path of his or her candidacy as might be ideal (at least, from the candidate's perspective).  This is only to be expected, of course, since there is absolutely no way that any single school could possibly manage to keep all of its suitors perfectly informed (even should it want to), and a candidate's thirst for information borders on the unquenchable. 

But consider this thought experiment.  Imagine that the schools in which one was interested did keep one adequately apprised of one's progress.  Let's say that a candidate who was curious could, with no adverse consequence to her candidacy, call in to the school and get exactly the same information that was conveyed on the thread.  For example,"Yes, candidate X, we've extended 15 AALS interviews and 4 pre-AALS interviews," or "we've scheduled 3 callbacks in the areas of corporate tax, criminal law, and your area, torts."  If this were acceptable practice, would there be any point in having the thread?  Would there be any additional advantage to accessing all of this extra information?

I can think of at least two, though there may be more.  The first is that the thread can give a candidate a more general, indirect sense of the strength of his or her candidacy.  If my area is civil procedure, and I see that lots of schools are scheduling civ. pro. callbacks but no one has called me, I now gain a better sense for the way in which my candidacy is being perceived.  Admittedly, it's an imperfect indicator -- I don't know for sure that I wasn't called back because my candidacy was weak -- there might be other reasons.  But I do get some sort of unfortunate, but probably necessary, critical appraisal, and my expectations can begin to shift gradually, as can my plans.

But the second reason is the one that I alluded to above.  The thread can itself be a comfort in what is an otherwise quite solitary process.  It can be a wildly imperfect substitute for "friends" with whom to share the experience -- albeit faceless and nameless virtual friends (whom you don't know, and who don't know you right back).  And it can be a small help, a teeny tiny little comfort, to know about some fellow souls with whom to travel through this process.  Maybe the thread goes some small way toward that end as well. 

Teaching about Writing by Doing

I am just back from an arduous "vacation" with to Disneyworld with my husband, my toddler, and my preschooler (hence the blogging hiatus), to find that all hell has broken loose, at least, as Howard Wasserman has been describing, where notice pleading rules are concerned.

One good thing that happened in my absence, though, is that my colleague Jacqueline Lipton's short article, "Ph.D. Lite":  A New Approach to Teaching Scholarly Legal Writing has been published in the inaugural issue of de novo, the Cardozo Law Review's online supplement. Among other things, Jacqui explains in this article how she writes a short article at the same time and on the same schedule as her students who are writing their Notes and shares her progress (and her drafts) with them. This strikes me as an extraordinarily brave but likely very effective way of teaching good writing. Read more about it here. 

Signing off

I hate to blog and run, but after weeks of exams and grading, it's time for a vacation before I return to the computer and a new article.  I have thoroughly enjoyed the past month-plus on Prawfs, and I'm grateful to Dan et al. for allowing me to stay on a bit longer than usual. 

My best wishes for an enjoyable, productive and fun summer to all.  And for those of you with some time on your hands and a love of good music,  Sasquatch!, Bonnaroo and Pitchfork all promise excellent lineups!