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Incommensurability: Was Jim Crow Really That Bad?

Last night, I gave a talk to an undergraduate group of Asian and Asian American students at Arizona, on race and law in America.  I discussed at some length segregation and disenfranchisement of African Americans, as well as discrimination against Asian Americans; anti-miscegenation laws applicable to Asians, for example; laws designed to prevent Asians from owning land, and laws prohibiting the naturalization of Asians in an era when there were many forms of discrimination against non-citizens.   The students listened politely, and with some interest and surprise.  After the talk, I chatted with some of the students, and one sophomore, it turned out, was from Kazakhstan.  I don't think he was trying to top me, exactly, but I was shocked when he mentioned that between 1929 and 1935, Stalin reduced the population of his country by millions--the student said half the population starved, were murdered or induced to migrate.   He didn't say it, but I wondered if he was unimpressed by the fact that some Americans had to sit in the back of the bus.

Surely at other times and places, terrible things have happened.  But I hope that doesn't subtract from the injustice of slavery, segregation and racism in this country.  I do not think it is an answer to the millions of Americans who were shunted by law into inferior education and other opportunities that "Gee, at least you (or your ancestors) weren't liquidated."  On the other hand, after that conversation, I still consider Sascha Baron Cohen to be a genius, but I'm not sure I think the Borat character is  so funny.

What are your votes on the Best Legal Writing of 2006?

I just received an email from the Green Bag/GMU Law's communications office with an interesting announcement of the 2006 honorees for Exemplary Legal Writing. "The awards, now in their second year, are selected by the journal’s esteemed board of advisers, which includes members of the state and federal judiciary, the news media, private law firms and academia.  The honored works will be republished in the forthcoming Green Bag Almanac & Reader 2007."

Chief Justice John G. Roberts was recognized for his opinion in Rumsfeld v. FAIR.  Also honored is Judge Richard Posner, Chief Judge of the New York State Court of Appeals Judith Kaye, former Solicitor General Seth Waxman, and Yale Law School Dean Harold Koh.  In total, 24 works were recognized in six categories: judicial opinions, books, short articles, long articles, briefs and motions, and miscellany.  A list of the honorees is posted after the jump.

Green Bag Exemplary Legal Writing 2006 Honorees

Judicial Opinions

Jay S. Bybee, Amalgamated Transit Union v. Laidlaw Transit Servs., 448 F.3d 1092 (9th Cir. 2006)
Alex Kozinski, Jespersen v. Harrah’s, 444 F.3d 1104 (9th Cir. 2006)
Richard Posner, Cecaj v. Gonzales, 440 F.3d 897 (7th Cir. 2006)
John G. Roberts, Jr., Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006)
Ronald A. White, Green v. Bd. Of Comm’rs, 450 F. Supp.2d 1273 (E.D. Okla. 2006)
William G. Young, U.S. v. Kandirakis, 441 F.Supp.2d 282 (D. Mass. 2006)

Books

Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshal and the Rise of Presidential Democracy (Belknap 2005)

Jack Goldsmith & Tim Wu, Who Controls the Internet: Illusions of a Borderless World (Oxford 2006)

Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (Pantheon 2006; Chatto & Windus 2005)

Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times (Rowman & Littlefield 2006)

Short Articles

Adam Liptak, Supreme Court Smackdown!, N.Y. Times, March 12, 2006
Duncan MacDonald, The Story of a Famous Promissory Note, 10 Scribes J.L. Writing 79 (2006)
Jeffrey Rosen, Judicial Exposure, N.Y. Times, Jan. 29, 2006
Jonathan M. Starble, Gimme an ‘S’: The High Court’s Grammatical Divide, Legal Times, Oct. 9, 2006
Stuart Taylor, Jr., Something’s Rotten at Duke, Nat’l. J., May 29, 2006
Diane P. Wood, Original Intent versus Evolution: The Legal-Writing Edition, The Scrivener, Summer 2005

Long Articles

Harold Hongju Koh, Can the President Be Torturer in Chief?, 81 Indiana L.J. 1145 (2006)
Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249 (2006)
J. Harvie Wilkinson III, The Rehnquist Court at Twilight: The Lures and Perils of Split-the-Difference Jurisprudence, 58 Stan. L. Rev. 1969 (2006)

Briefs and Motions

Aaron M. Panner et al., Amicus Brief in Hamdan v. Rumsfeld
Seth P. Waxman et. al., Amicus Brief in Smith v. Texas

Miscellany
Judicial Conference Advisory Committee on the Federal Rules of Civil Procedure, Restyled Federal Rules of Civil Procedure

Judith S. Kaye, The Best Oral Argument I (N)ever Made, 7 J. App. Prac. & Process 191 (2005)

Mark L. Movsesian, Samuel Williston: Brief Life of a Resilient Legal Scholar, Harv. Mag. (Jan-Feb. 2006)

Initially, I thought this list reflected a predictable GMU center-right bias (e.g., Roberts, Posner, Bybee, Kozinski). Then I saw it also included Judge Young's great Kandirakis opinion, which is a rousing defense of a defendant's constitutional rights -- and which I'm partial to on other grounds. But then I remembered Judge Young is a Reagan appointee also. Scrolling down I was pleased to see the center-left appear in some of the other categories; I was also excited to see a brief in Hamdan by a former boss of mine (the infinitely shrewd Aaron Panner). Anyway, I'll be sure to track down some of these suggestions.

Thanks to the good folks at Green Bag for paying attention to good writing. I suspect next year we'll begin to see some blog posts mentioned, perhaps, under the Miscellany category. In any event, what omissions do you think the Green Bag folks made?

A Turn to the Right?

Peter Berkowitz, a friend and former teacher to some of us here, has just released a fascinating and funny essay in the form of intellectual memoir entitled The Longer Way. It appears in a forthcoming collection, Why I Turned Right: Leading Baby Boom Conservatives Chronicle Their Political Journeys, ed. Mary Eberstadt (Simon and Schuster, 2007). In the essay, Peter acknowledges that he is regularly regarded with suspicion from lefties (he has criticized the critics of Bush v. Gore, among other things) and conservatives, who apparently don't think Peter hates liberalism enough. But in this essay, Peter gives a flavor of why I still (naively?) read his work as a non-conservative, even though Peter now publishes almost exclusively in conservative-affiliated publications, such as the Weekly Standard or Policy Review (which is surprisingly more multivocal since it left the Heritage Foundation and came to the Hoover Institution). For those who have read this essay: am I wrong?

One question, and then two stories from the essay to share after the jump. First, as a young man, Peter described himself as "captivated" by Roberto Unger's Knowledge and Politics, but he observes that the book has been "greeted with a deafening silence by the academy when it was first published in 1975, and since has been largely ignored or derided by professors of philosophy, political science, and law." Is this true? My sense is that Unger's work has meant a great deal to a variety of law professors, even though by the time I was at HLS in the late 1990's, it seemed like his influence had waned. I just did a quick JLR search on Westlaw and found 522 citations to Unger's book and 1500 citations to Unger himself. Since Westlaw's database doesn't even go back that far for many journals, I have to say: that's the kind of obscurity I could envy. To be fair, Peter also mentions derision of Unger's work, but again, my quick eyeballing suggests that Unger's work is probably acclaimed as much as it is derided, though perhaps his stature has waxed and waned over time. What kind of Unger moment do we live in now?

[As is often my practice, I showed this to Peter before posting and he helpfully replied: "My recollection (I'm in Herzliya reporting on national security and the Middle East and haven't got the opportunity at the moment to check) is that Stephen Holmes (in TNR), Don Herzog (University of Michigan Law Review(?)), and Ian Shapiro speaking in effect for liberal political theory, and William Ewald (in the Yale Law Journal) speaking for Oxford analytic moral philosophy, excoriated Unger's work and suggested that there was next to nothing to learn from Knowledge and Politics. It should also be said that Tony Kronman did write an early and illuminating review (including a revealing published exchange of letters between the two). I'm guessing that many of the references you found to Unger come in the 1980s from CLS scholars who for a time embraced Unger as one of their own (around 1983 Unger published a Harvard Law Review article called, if I remember correctly, "The Critical Legal Studies Movement" that did intersect with CLS but went far beyond it both in philosophical depth and political radicalness). Perhaps I should have said that professors of philosophy, political theory and jurisprudence largely ignored or derided Knowledge and Politics. Other than Kronman, can you think of significant exceptions to that proposition??" I don't know enough about Unger's reception history, so I invite others to weigh in on Unger's legacy in law schools today.]

Putting the Hunger for Unger issue aside, the essay has some gems. At one point, Peter describes his unusual experience as a young man in Israel after college, when he was shuttling between providing tennis instruction on a secular kibbutz in the desert and studying at a "English- language yeshiva where I would sit in on two hours of classes on Midrash and Talmud and then gobble down a quick, old- fashioned, Eastern European lunch of boiled chicken and rice, whereupon, to the consternation of classmates and teachers, I’d race out... I sensed that I was living a double life, and that it would be wise to keep it to myself. Eventually, I confirmed as much by casually letting a curious kibbutz friend know how I spent my mornings, and followed up that painful experiment by offhandedly mentioning to an inquisitive rabbi at the yeshiva where it was that I was living. My friend’s face and the rabbi’s contorted in identical fashion, as if I had nonchalantly disclosed my membership in a gang of child molesters."

Later, Peter describes how he ended up teaching at Harvard in the Government Department when he still had another year to finish at law school, which he started after his PhD.

"The offer I received required that I begin promptly. So I agreed to spend the fall semester of my third year in law school teaching political philosophy at Harvard. This was made possible by the best and most dangerous elements of a Yale Law School education. In a meeting in his office during the spring of my second year, the dean casually waived the reasonable law school requirement that students enrolled in courses be in residence in New Haven and attend classes. And why shouldn’t he have? On the one hand, he trusted Yale law students to use their freedom well. On the other hand, he supposed—as the faculty and administration drummed into our heads—that we members of the Yale Law School community were above the law, for if we weren’t, how would we be able to use it to do the right thing?" (emphasis added).

Public Deliberation Made Easier?

Yesterday, my post/public service announcement over at BioLaw discussed a pending proposal in Michigan that would require all sixth grade girls to receive a vaccine which prevents the transmission of the virus leading to about 70% of cervical cancer. When checking the bill status (it passed the state Senate almost unanimously and has been sitting in a state House committee for about two weeks), I noticed that the Michigan legislature’s website allows public posting of comments regarding pending legislation. This seems like a unique feature to me, though it’s certainly possible that this is becoming more common and I just haven’t noticed. Anyone aware of other states doing this? Thoughts about how legislators consider these comments, as compared to general letters or email/ voicemail messages left in their offices? Anyone out there posted such comments?

Collateral Consequence & Reentry Issues

Over at Blackprof.com, guest blogger and Maryland law professor Michael Pinard has an interesting and challenging post, Reentry Issues and Questions, which apparently will be the first post in a series on the subject. More and more attention has been paid to the collateral consequences of criminal convictions and reentry issues as the legal and social obstacles to offender reentry into society become more significant and continue to impact specific communities disproportionately. I know that in my eleven-year term of practice as a public defender in New York City, these issues went from mostly a background consideration to a key factor in many cases, and prosecutors and criminal defense attorneys quickly needed to become near-experts in immigration law, housing law and public benefits law, at a minimum. Professor Pinard has written some very thoughtful pieces in this area, and his post presents similarly important information and questions.

When your Writing is SSR-empted

In a previous post, I wondered what the right term was for when you are in the middle of working on an article, and then you suddenly see something strikingly similar posted on SSRN. 

This happened to me a couple of years ago when I was working on a contract theory piece (half of which is still kicking around in draft somewhere on my hard drive).  Since then, it’s also happened to at least two other academic friends, and the immediate effect can be quite demoralizing.  Yet, to some degree, it’s quite understandable, especially if you’re working on a hot topic or something that’s been in the news extensively.  Sooo…. after you’ve finished eating all of the chocolate ice cream in the freezer, there are some practical ways to address the problem of the scholarly interloper:

1) Scrap the parts that are common, and then develop one portion – perhaps that received cursory treatment in the interloping piece – into the focus of your article.

2) Was your piece advancing a particular point of view on a theory or a point of law reform?  If so, you may not agree with the policy view that the interloper is advancing.  Perhaps you can set the interloping piece up as your “straw man” to argue against.

3) Place your piece into cyberspace.  (Not literally.  The interloper has already done that).  Rather, is there a way to give the topic a modern spin above and beyond what the interloper has done? 

4) Alternatively, add a different theoretical approach.  The interloper did a law and humanities analysis.  Maybe you could could give it a critical one.

Of course, much of this discussion hinges on how much overlap there is between the two drafts.  If it turns out that the other piece has only a surface similarity to your draft, there may really not be much of a problem at all.  Throw in some citations and a discussion of the article in the introduction, and you’ll be all set.

On the other hand, do a cost-benefit analysis.   If it turns out that the pieces are discussing the same sources, cases, and the overlap is simply overwhelming, it may make more sense to bring your research to an SSR-end and move on to the next topic.  There’s certainly no shortage of interesting legal topics to write about.

[Hat-tip for the sniglet: Adam Kolber]

A Hair Post

Readers of Kenji Yoshino's book Covering, on which we had quite a few posts several months ago, and those who are interested more generally in issues concerning the workplace regulation of appearance, particularly when connected to traits that often connote racial or ethnic identity, should find interesting today's column in the LA Times by Erin Aubry Kaplan.  Kaplan writes about various recent examples of enforcement aimed at dreadlocks and other "natural black hairstyles" -- most notoriously, the recent pronouncement of a sheriff in Louisiana that anyone walking the streets of his town in dreadlocks "can expect to be getting a visit from a sheriff's deputy."  What's interesting, however, is that the other two examples she cites come from black institutions.  In one case, the institution is Hampton Univesity, a traditionally black university that, she says, forbids "unusual" hairstyles, including braids.  In the other, she says that Black Enterprise magazine banned similar hairstyles on student interns.

None of this necessarily refutes Yoshino's arguments, or the other arguments that have been made for the protection in the workplace of hairstyles that are often identified with African-Americans.  But it does underscore the fact that these disputes risk placing the courts at the center of highly contested questions of identity that are internal to the affected community, as Richard Ford has pointed out in a great essay in this book. 

Kaplan writes that these regulations send the message that "[i]f blacks want to have a chance in the increasingly unforgiving corporate world, they will have to shave off their rough edges -- starting with their hair."  I suspect she's wrong to say that the corporate world is increasingly unforgiving, especially on questions of appearance.  She does raise a valid point about the effects of appearance norms.  But does the fact that the regulations she cites (aside from the egregious example of the Louisiana sheriff) come from black institutions complicate the picture?  Does it suggest that "corporate" appearance norms are just that -- collective norms emerging from workplace culture, norms that may be objectionable but can't simply be reductively described as stemming from the callousness of a white majority?  Or, as one of our commenters, John Kang, has suggested, does it suggest that even black communities can internalize a form of "white" aesthetics?  Or is the answer still more complicated than either of those descriptions?         

When all else fails, rocks, paper, scissors!

My colleague JB Ruhl sent around this delightful little order from Judge Presnell in the Middle District of Florida.   The good judge, who has penned some excellent Blakely/Booker opinions, writes:

Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.”

CNN has more.

Kahan on Goldsmith and Yoo

Thanks to Orin, I see that my former evidence prawf and mentor, Dan Kahan, has posted his spicy commencement address up on the Yale  Law website.  Kahan, in seven snappy pages about chick-sexing, moral responsibility, and torture, comes down hard on Torture-Memo author John Yoo, though he doesn't name Yoo in the speech.  Yoo, according to Kahan's analysis, was a "bad lawyer" in part because he failed to accept moral responsibility for the content of his Torture Memo.  Specifically:

Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”

In contrast to Yoo, Jack Goldsmith earns Kahan's plaudits.  Why? Because Goldsmith, when assuming the mantle of OLC, repudiated the Torture Memo as well as temporarily suspended the NSA warrantless wiretapping program.  Thus, despite the undeserved rough handling Goldsmith received at Harvard Law School upon his arrival from some faculty, Kahan thinks things are looking up at HLS:

Now that Goldsmith is there, I suspect it's much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of his actions, it's much less likely any of you ever will either.

Notwithstanding my prior disagreements with him, I love Dan K.  But I can't say with the same confidence he does that Yoo's statement, by which he decoupled law and policy, is itself an evasion of moral responsiblity.  When I clerked, I often had to advise the judge about what the law permitted or restricted even though I had disagreements with the law's underlying policy choices.  No one would say it was "cowardly" to both register those disagreements (either in conversation or urging a special concurrence) or in being clear about what the law was and just recognizing the institutional role one occupies. 

So what is it about the context Yoo was in that removed him from that occupational safe harbor?  To Kahan, it seems as if the problem was that Yoo's role was going to have the effect of interstitially creating law that Kahan disagrees with fervently -- something judges often do also.  But the interstitial nature of the law propounded by the Yoo Memo is, like other law, subject to revision and repudiation in a democratic society.  And indeed, torture has been subsequently, and at least officially, more or less proscribed.  So it might be the case that if Yoo had to write the Memo again from scratch today, the Memo would come out differently.  (My very raw understanding of Yoo's thinking is that POTUS' Art II powers are plenary in the field of national security, and so perhaps Yoo wouldn't actually change his mind on the issue of torture, but I'm not sure.)  Here's my naive question: is the problem with Yoo that he failed to accept moral responsibility for the law he "created" or that his memo "created" a law that most people find repugnant?

Conflict and Legal Scholarship

Conflict is essential to fiction.  The classic Aristotelian framework for drama is based entirely on conflict: conflict between two people, between nations, between the protagonist and the forces arrayed against her.   Non-fiction also thrives on conflict: witness the crop of successful reality shows or documentaries (penguins vs. the elements).  Even legal scholarship requires conflict.  Most law review articles begin by setting forth a problem, a puzzle, a circuit split.  The article then endeavors to resolve the conflict by providing a new insight or creating the proper path to resolution.

With that being said, I think the Yale Law Journal's embrace of conflict has good intentions but a problematic execution.  In their "Call for Debate", the YLJ editors solicit a set of articles that are "engaged in a dialogue on a single compelling topic."  Noting that they want two pieces that "speak to each other," the editors encourage the submission of an incomplete paper and a matching prospectus so that the articles can develop together more organically.   They offer two examples: the Manning-Eskridge debate over statutory interpretation, and the Sunstein & Vermeule-Steiker-Donohue & Wolfers debate concerning empirical studies about the death penalty.

Articles and responses are certainly not new to legal scholarship.  What is new, or at least uncommon, is a solicitation of a matching pair at the same time.  My co-Blawger Paul thinks this is an excellent idea.  In the interest of further conflict, however, I must disagree.

In the traditional law review article-and-response, the article is sent out, read, and then responded to by another academic.  If the responder got the article pre-publication, the response could presumably be in the hopper before the article was published.  But the original author did not pick her interlocutor; the review did.  I am curious about how the Manning-Eskridge and Sunstein & Vermeule et al. debates came to life.  Did these teams present themselves as pre-arranged duels?  Or did the Stanford and Columbia editors choose the responses or the responders to the original article?

If the "debate" comes as a pre-arranged set, I worry that it will be "conflict for show."  Like a musty vaudeville act, the combatants will have all their moves choreographed ahead of time.  ("Two law professors walk into a talent agent's office . . . .")  Having chosen each other, the two sides have to have some degree of agreement.  The natural human tendency will be to pick a sparring partner who is good but doesn't level any really dangerous punches.  Knowing this, the two sides will be encouraged to amp up the level of combat, at least on the surface, to make it look sufficiently contentious.  In the end, the debate will be less like a true match and more like pro-wrestling: it will look really bad but the whole thing will be scripted ahead of time.

If the Yale editors want a real debate, they will probably have to pick the two sides themselves.  That may not be too hard, and an author may even be helpful in proposing potential debaters.  But I fear that a pre-packaged debate will not be a true debate at all.

Witchcraft Redux

My stint at Prawfs has come to an end, sadly.  I want to reiterate my gratitude to Dan for the experience, which has been terrific.  I thought I would end where I began, with government regulation of witchcraft in South Africa. 

In my initial post, I defended the new democracy’s first attempt to regulate occult practices.  Parliament recently passed the Traditional Health Practitioner’s Act, which establishes a regulatory agency for the purpose of licensing and regulating traditional healers.  These healers employ occult powers in order to protect clients who feel they have been the victims of witchcraft.  Drawing on democratic theory, I argued that regulating healers in this way is defensible but I warned that the government ought not go further and criminalize witchcraft itself. 

On Friday, I presented a draft of that argument to the New York Junior Faculty Colloquium at Fordham Law School.  The crowd included many friends and (as I learned) more than a few Prawfs readers.  Below are just three of their many insightful comments along with my preliminary reactions. 

Some people wondered whether it makes sense to even consider criminalizing witchcraft, since it is in fact impossible for witches to cause harm by occult means.  Nice point.  A first answer is that most Africans—citizens, members of Parliament, police, etc.—believe that witches can harm others.  But admittedly it doesn’t necessarily follow that we ought to credulously accept that belief as a normative matter.  Others countered that even U.S. law occasionally recognizes beliefs that may appear to be impossible.  In one Mississippi case, for instance, two brothers pled guilty to conspiracy to commit murder by means of voodoo.  (Although such cases are rare, few jurisdictions recognize an “inherent impossibility” defense.)  Tort law, someone else reported, also sometimes permits suits based on spiritual aggression.  And some state health insurance programs apparently cover treatment through prayer healing.  Certainly these examples are controversial.  But my initial sense is that the intent to cause harm (if present in witches) may be sufficient to justify a criminal law against witchcraft, even in the face of serious disagreement about whether witches can cause harm.  Ultimately, of course, I too come out against criminalizing witchcraft—my point here is only that there is something serious to argue about.

A few participants worried that regulating traditional healers will involve the government in favoring or disfavoring particular belief systems in violation of anti-establishment norms.  Favoritism could take several forms, including endorsing certain methods of healing over other techniques.   This is a real concern (even though framers of the South African constitution pointedly declined to include an anti-establishment provision).  My immediate response is that absolute government neutrality, even assuming its attractiveness to another culture, is difficult to achieve in this area.  Certainly many think that previous law denigrated African culture as a whole.  And any conceivable policy approach will violate government neutrality in one way or another.

One of the most interesting comments was only tangentially related to the project.  Recalling that any misfortune can be attributed to witchcraft—including illness, poverty, or even a car accident—one person asked:  What would it take for Africans to come to understand automobile collisions as meaningless accidents?   Americans have come to view accidents as relatively unconnected to human agency, even though we routinely make policy choices that can reduce or redirect their costs.   How might South Africa encourage its citizens to view car accidents and other misfortunes as similarly disconnected from meaningful human action? 

Comments are more than welcome. 

Coming Out as a Bisexual Woman When You're Dating a Man

I'm certainly not the only person in the world to have thoughts on this problem, but in the spirit of discussing issues that junior faculty face, as well as having a meta-conversation, here goes:   Very few of my colleagues or students know that I'm bisexual.  Is it because I believe in keeping my "private" life "private"?   Not at all.

 

The problem is that I do reference my personal life in casual conversation, and I have a boyfriend.   As a result, people around me tend to assume that I'm hetero.  As an extension, many tend to assume that I'm straight: not just hetero, but planning to get married, have children, raise them in a particular way, etc.   (For anyone confused by this, I use "queer" to mean those who are nonconformist with respect to the realms of sexual activity, family structure, and gender performance.   I use "straight" to mean those who are conformist in these realms.  Thus, straight/queer does not map precisely onto hetero/lgb.) If I want to disabuse anyone of the notion that I'm hetero, I must, apropos of nothing at all, advertise my sexual orientation, which I am sure most people would deem to be at best self-important and irrelevant, at worst inappropriate and "too personal."

 

I could avoid mentioning my boyfriend, but that's not only misleading, I think it's the wrong way to treat someone you care for. The option of calling him my "partner" is one I tried briefly, but it grates on me: The gender of my boyfriend isn't universally irrelevant: It's just not a reason to presume I'm hetero. In any case, many people would just assume I am a lesbian, and if they met my boyfriend, revert to assuming I'm hetero. So, I call my boyfriend my boyfriend, and allow others to assume I am hetero, and straight. But given the false distinction between inaction and action, this makes me feel as if I'm closeting myself.

 

On the other hand, I never feel as if I can be very indignant about this. I chose to date a man, and we are currently monogamous, so at the end of the day, my life is a whole lot easier than it is for many lgb people. Thus, to proactively remind those around me that I'm bi feels, well, a little like posing.

 

Why does it matter for people to know that I'm bi?  Of course, nobody likes to spend years of their life fighting for queer rights, only to go in the closet. But it's not just personal irritation and vexation at stake. It is clear to me that my colleagues and students care, sometimes, about the facts that I am not white and am a woman. They have the good sense to know that racism, sexism, and even benign cultural differences produce a variety of experiences and perspectives that are often relevant and interesting. They would similarly care to know, I think, that I have been discriminated against and harassed because of my sexual orientation.

 

Even more importantly, I suspect that if they knew I'm bi, they would also be more likely to entertain the possibility that I'm queer in other ways, too (and that maybe some of the heterosexual people in the room are, too!).   The more we are reminded of the presence of queers in the room, the more likely we are to interrogate the numerous anti-queer assumptions pervading the law, such as the assumption that everyone wants to, or should, ape the model of the nuclear family.   (Bravo to co-bloggers Ethan, Dan, and Jennifer for doing their part.)

 

So, what are some creative ways, not just for professors, but for professionals more broadly, to negotiate this and other problems of heterosexism? I seem to have found my way, in the form of this post.

Metablogging for academics

Over at the new blog, 3LEpiphany, Ian Best, an Ohio State Law 3L, is compiling a very useful set of links regarding academic blogging.  Unsurprisingly, a lot of the posts he includes were written by prawfs both here and elsewhere in the blawg world.  What may be surprising, however, is that  Ian is getting credit from his law school for blogging; or as a lawyer who blogs noted, Ian is paying tuition for the privilege to blog...I sure hope he's getting his money's worth or at least pays in-state tuition.

From Ekow Yankeh: A Gap in my humor

Not too long ago, Seth Stevenson at Slate wrote an article regarding a terrific Gap ad directed by Spike Jonze, lamenting its brief and limited use by the company.   The ad celebrates, with great wit, Gap's new remodeling initiative.  At the heart of his lamentation was puzzlement about why the company would have created, at great expense, such an ad and then have such little insight or courage as to use it.   The ad is in fact quite funny-- you can find one version of it here, featuring a group of customers and employees misbehaving in a Gap store, cresting in a frenzy of destruction.   I was completely enjoying it until a scene where a large object is thrown out of the store's window onto a public street, inspiring a passing driver to launch herself and auto into the store - the ultimate in Wilson and Kelling's broken windows experiment.   

Somewhere in the back of my grading-finals-addled mind, the reason the commercial was contained leaped out at me.   On the foundation of absolutely baseless speculation, I thought to myself, "No way Gap legal allows that commercial to run nationwide."  I mean, who needs that lawsuit?   Trying to defend a commercial as a mere commercial would seem innocent enough but try telling this to the directors of the movie, "The Program."  One person inspired to live out the commercial, one innocently harmed victim and a few creative lawyers and…

Now, after five minutes of calm I find this reasoning overwrought if not unthinkable.  (And in my defense, I did just finish writing a torts exam.)  Still, some part of me wonders, were I in the Gap legal department, would I not have been uneasy or voted against the commercial.   So the question is, is it just me?  What the hell has happened to (my) sensible thinking?  Or, broader, is this reflex of finding legal liability a reflection of a society detached from common notions of responsibility?   Or, perhaps, of law intelligently recognizing and protecting from predictable human failings and suggestibility? 

Wednesday's Open Thread

Here it is.  Remember the rules: be nice and don't be a space hog.

From Ekow Yankah: Of Dressing Up and Selling Out

(Ekow Yankah is a rookie prawf at U. of Illinois and a former guest with Prawfs--Ed.)

Having learned nothing from my prior blogging (i.e. the difficulty of taking on sophisticated subjects in brief and suffering the consequences –or compliment- of much more thorough counterargument) I again tackle a sensitive topic.  The topic has the danger of touching upon the live wire of race and pop culture.  It will undoubtedly invite some to declare that I am a black man whose success has caused me to lose touch with black culture or identity (or much, much worse).   My only real hope is that the lateness of my taking up the topic and the level of conversation on this website provides the highest level of intelligent accusations.   Forward!

Earlier this year the NBA commissioner David Stern announced the imposition of a new NBA dress code.   The dress code requires players to dress in business cassual attire when on official league business, e.g. on the way to games.   It also specifically barred certain articles of clothing in what some viewed as a specific attack on black culture, for example barring all medallions and head wear.  Set aside that some astute observers have noted that the announcement of the policy seemed strategically chosen to focus attention on professional basketball before the season when it is largely missing from the public eye.   The imposition of the dress code, viewed as an imposition of a white mainstream aesthetic attempting to suppress the urban hip-hop style of a league dominated by young black athletes, gave rise to a predictable controversy.   

Unlike some commentators I do not find the accusation absurd.   Where the articles of clothing, (or speech, cultural knowledge or other markers) which determine one's fluidity in positions of power are dominated by a single race, it is impossible to imagine that race can be totally separated from these markers.   Put simply, in America, white people largely, though certainly not singularly, define what constitutes "normal" or "appropriate" dress.  Thus, when some black athletes viewed the NBA's dress code as an attempt to impose a style on them as racially charged, their position was not without basis.

To be sure, I am not claiming that Black America is monolithic in style or thought.   African-Americans have a long history of elegance and style; the archetype of the fine Black gentleman and the resplendence of Black churches are but two examples.   Further, the idea that having to dress up for work is somehow antithetical with black identity is not one I believe is largely held.  Thus, the contention that a black man has to stake his identity in part on his low slung jeans and medallions is advanced by, at most, a sub-group of (typically young) African-Americans.   Yet, it is undeniably there and easily tapped into.

We can quickly dispense with many of the arguments made against the dress code immediately following its imposition.   Allen Iverson's repeated position that a suit does not make one a good man, if taken literally, is totally besides the point.  Nobody would seriously contend that what you wear changes your moral make-up.   (The possible exception to this may be where what one wears is morally relevant given social norms, so that wearing red to a funeral with the knowledge that this will cause insult may matter in light of the purposeful violation of strong social norms.   But this point should be put aside.)  The more powerful point in Iverson's position is of that the league's attempt to make its product more palatable is a shallow one as the various advertisers ought recognize that whatever traits that they found unattractive in basketball players would seem unchanged by simply putting basketball players in Valentino.   

This, of course, ignores that in many instances the very thing that advertisers object to is the image of the players and that advertisers are unapologetically shallow.   (Never mind the ultimate question in my mind as to whether, even from an advertising point-of-view, this is a good move for the league.)  The even better argument by Marcus Camby that the league should consider giving a clothing stipend to a group of millionaires predictably drowned in a sea of laughter.   I, for one, thought it did not get a fair hearing and am forwarding this wonderful and ambitious contention to my Dean for translation into the law school setting.

Further, the spate of rights talk ("One has a right to determine what one wears") is untenable.  Absent interaction with other rights (e.g. religious expression) few contest that that employers may determine, within reason, appropriate work wear.   Indeed, it is the very fact that most of us are intimately aware of our employer's ability to demand professional dress that made the entire debate seem silly or self indulgent to the general public. After all, wouldn't many young, white lawyers love to wear jeans and a baseball cap into the office?   Don't the masses of young whites (and for that matter, many others including Blacks) understand that they must trade in some measure of personal freedom in order to participate in commercial life (a point that is made with much more vitriol by unsavory commentators to whom I am sorry to give comfort)?

Still a related point seems to motivate the debate; the idea that somehow, giving in to these demands would somehow be different for a young, black basketball player than for the young, white Merrill Lynch analyst.   It is this charge which worries me.  It is the idea that any compromise, giving even an inch on those markers of Black urban identity is to sell out, which gives this indictment its currency.   This is what grounds Iverson's and Rip Hamilton's comments that complying with the dress code strikes them as "fake."

It is important to recognize that the contention that participation with mainstream demands somehow negates one's claim to Black authenticity is deeply harmful and counter-productive.   This contention introduces a profoundly different tension than the tension facing most white Americans in the same position.   Because the very definition of "appropriate" dress has a racial charge, there may be more at stake for an African-American in considering a career's normal trade-offs.   This is especially so when the symbols that seem under attack are perceived to be precisely symbols of Black (sub)culture.  But in the hand of some, advertently or inadvertently, this position becomes one of cultural brinksmanship.   As I have said, it is not a position I believe most Black Americans to hold, but it is clear that the current is there, readily tapped into and in many cases abused.

For those of you who know me personally and believe this position is simply born of my clearly abnormal like of neckties… ummm… well… I'll get back to you on that.

This looks like a hobbyhorse I can ride

John Tierney's column in the NYT today begins thus:

Journalists and legal scholars have been decrying "cronyism" and calling for "mainstream" values when picking a Supreme Court justice. But how do they go about picking the professors to train the next generation of journalists and lawyers?

Without naming names, Tierney then continues with a reminder of the evidence suggesting political bias in the academy, specifically looking at how law schools are filled with faculty who predominantly give money to (and presumably vote for) the Democratic party. 

This column serves as a good example of the "Your question reminds me of an answer I'd like to give" phenomenon.  Look at the hook to his column, regarding the critique of cronyism.  It cannot be denied that various esteemed members of the conservative punditocracy have been as adamant about the cronyism charges viz. Miers, as the center or the left. See this post by Kaimi, which provides links for George Will, Charles Krauthammer, Randy Barnett, Bill Kristol, and Steve Bainbridge.  These are all conservative "journalists" or "legal scholars."

In concluding his piece, Tierney writes: "As long as the professors look different, why worry if they think the same?"  Tierney may have a point here and I'm not saying that real intellectual diversity, which I hasten to add is not the same as partisan-diversity, is not a desideratum in law schools for both students and faculty.  But it seems strange to launch a critique of the lack of intellectual diversity from the platform of the Miers nomination, which has been opposed by a stunning array of principled conservatives, centrists, and progressives precisely on the grounds of cronyism.  If I'm missing something here, let me know.

Hell hath no fury like a blogosphere scorned

Many thanks to Dan, Ethan, Kaimi, and the rest of the Prawfsblawg glitterati for inviting me on as a guest blogger.  It is exciting and great fun to be part of this terrific forum.

The blogosphere has pretty solidly denounced the Harriet Miers confirmation.  As Mickey Kaus predicted, Bush's success with the Roberts' nomination seems to have set too high a bar for his follow-up pick.  I am a little surprised at the ferocity of the reaction -- perhaps some folks had their hearts too firmly set on a particular brand of conservative jurist.  But I also think some of what is going on is an overreaction to the importance of the Supreme Court.  After all, Harriet Miers may not have the glittering credentials of an Alex Kozinski or a Michael Luttig, but she was president of the bar association for the second largest state in the nation.  Where was the outrage over a certain appointee, to a position where lives could be lost if performed incompetently, who had been forced to resign as commissioner of the International Arabian Horses Association?  Perhaps a little more blogospheric attention to that appointment could have saved lives or billions of dollars.

I guess what I'm saying is, on this one, color me a little Zaring.

Thoughts on Employment and a Non-Gun-Ownership Requirement

Another day, another workplace killing. Things aren't getting any better, are they?

Here's a question, perhaps a suggestion: Should companies, as a condition of employment, start requiring workers to sign an agreement of non-gun-ownership? This would require an employee to state that she does not own any guns, and that she will not purchase any guns during her employment. It seems that if an employer required an employee to agree to non-gun-ownership, the likelihood of a workplace killing by that employee would be lessened.

Such a change wouldn't altogther end workplace killings. There's the possibility that the employee would lie on her application, or would simply acquire a gun after being fired and use it to attack her workplace. On the other hand, it is all but certain that there is some population of unstable, disgruntled employees who own guns, and that for some of those employees, their easy access to currently-owned guns is an important enabling factor that facilitates a decision to transfer their anger into actual killing of their co-workers.

Would a requirement of non-gun-ownership be legal or enforceable? I'm not sure. (Do we have any employment law people here?) A while ago, Eugene Volokh blogged about a court upholding a ban on gun ownership by public housing residents -- apparently that kind of restriction on gun ownership is allowed. On the other hand, there is (at least in one state) a self-defense exception to the at-will employment doctrine.

If this kind of provision is legal, then perhaps it is something employers (and their insurers) should start looking into. Is anyone aware of employers who currently have such a policy?

Why Stop with the Third Year -- Let's Do Away with the Whole Thing!

Laura Appleman wants to do away with 3L year. Perhaps she's selling herself short. From CNN.com:

California, Vermont, Virginia and Washington allow law readers to take bar exams after three or four years in apprenticeships registered with the state. Three other states -- New York, Maine and Wyoming -- let non-law school graduates take bar exams if they have a combination of office study and law school experience.

Fewer than 150 aspiring lawyers are getting their legal educations in programs that require no law school whatsoever, according to the bars of the states that allow the practice. By comparison, more than 140,000 students attend law schools approved by the American Bar Association, and thousands more attend schools not approved by the ABA.

Despite some challenges, law readers can achieve big things. Marilyn Skoglund, for instance, sits on the Vermont Supreme Court, and Gary Blasi is a professor at the University of California at Los Angeles.

I knew one person in New York who was apprenticing. It sounded like a tough path, but it worked for this person's life situation.

Is this generally a good idea? A bad idea? Is it just a relic (only 150 people doing it now) that we can tolerate, or one that should be scrapped? Dan S. and Laura's exchange at Legal Affairs (and here) has highlighted the fact that law school means different things to different people. I suspect that differences in goals and perceptions, such as those that have driven Dan S. and Laura's debate so far, would certainly inform responses to the appropriateness and place of apprenticeships.

One exception to the Ph.D. rule

Let's set aside for the moment our broader differences on whether a Ph.D. is really required for writing interdisciplinary work -- opinions differ -- and focus on some areas of agreement. For instance, even staunch Ph.D. advocate Brian Leiter seems to concede that some J.D.'s are as qualified to write as some Ph.D.'s.

And which are these explicitly Leiter-approved exceptions to the general rule? Venture below the fold, constant reader, for the surprising answer.

It turns out that, even accepting as true all of Leiter's assertions, we find an exception to the general rule of Ph.D. supremacy, hidden deep within the holy writ:

"A BA in philosophy apparently puts you well ahead of a PhD in political science."

That's the exception, folks. A J.D. can write just as well as a Ph.D., provided that that Ph.D.'s Ph.D. is in political science, while the J.D. earned her B.A. in philosophy.

Now that we've found common ground between warring factions, we may rejoice.

In the mean while, if you've got a moment to spare, don't forget to read my own draft pieces, Taking Political Science Seriously and All I Really Needed to Know about Political Science I Learned in a 30-minute Perusal of the Blackwell Companion.

Disney-fication

Everyone likes to complain about the recent Disney-fication of Times Square. I'm sorry to report that the phenomenon appears to be spreading. It appears that Conglomerate is now being Disney-fied, as all manner of law professors and other unsavory characters converge on the site to discuss the recent Disney opinion. And like Times Square, I must say that I liked Conglomerate a lot better pre-Disneyfication, back when it was nothing but a bunch of strip clubs, peep shows, and drug dealers.

Ahh well. At least I've still got Prawfsblawg. . .

Pace Hillel: Majoritarianism Is Not All There Is To Democracy

Orin's remarks notwithstanding, there are some non-visiting voices here at Prawfs.  One of those is the voice of our own Hillel Levin, who has generated much discussion about breastfeeding, lactivism, and other important social issues.  One of Hillel's hobbyhorses--and the one that has generated the most discussion here--is his commitment to majoritarianism over courts.   He has honed his arguments through provocative discussions of Kelo and the "french-fry case."  My first instinct to his majoritarianism was populist sympathy.

Much of my own academic work has been of the populist variety: I've argued for new institutions of direct democracy; I've argued that court-centrism is indeed problematic and that legislatures embody substantial democratic virtues that courts lack; and I've even suggested that our conception of responsibility can only be vindicated through democratic procedures.  In short, my inclination is to be sympathetic to majoritarianism over counter-majoritarianism, so Hillel's posts first resonated with me.

But I find Hillel's perspective on legislatures too rosy by half, so have to come to the rescue of the courts.  A single blog post can't do this argument justice, but I do feel that another consistent voice here must speak up about the importance of courts and their unique role in the administration of justice.  Quite simply, justice already costs tremendous amounts of money.  A lone individual who has been wronged must pay high entry costs to have justice done.  The individual will have to find a lawyer; and usually they will have to pay a lawyer.  The individual will have to tell their narrative in a foreign language: legalese.  The individual will have to fit his wrong into a "cognizable" category.  The individual will often have to convince a judge and a jury of his peers that he has indeed been wronged and is entitled to redress.  These costs are severe-- but they are arguably necessary.  Asking the individual, however, to mobilize a political movement to garner the support of a majority of voters is too high a cost, I think.  Worse still, those who fetishize political mobilization over court-centered victories often fail to recognize that those who are expected to mobilize (those already wronged) cannot benefit from the fruit of their labors if their recourse is in the legislature because it takes a new law to get the recognition they need--and the new law cannot apply to the past wrongs. 

[I think even the Court recognizes this distinction.  For example, if one looks at the standing jurisprudence, one can trace a pattern (though it is not universally applied): wronged individuals can often get standing, while organizations that can more easily use the political process do not.  The Sierra Club, with its political capital is expected to go through political channels, while a group of students (SCRAP) can find redress through the courts.  Of course, the Court boots many wronged individuals on standing grounds (Allen, Lyons, etc.)--but it is far more suspicious of organizations that have access to the political process in a way that wronged individuals do not.]

There are other things one can focus on to counter Hillel's counter-counter-majoritarianism: legislatures do not actually respond adequately to simple majorities; legislators respond more to money than to democratic mandates; legislatures makes compromises for reasons endogenous to the legislative process that have nothing to do with the preferences of their constituencies; campaign finance requires reform before we can trust legislatures; etc.  But I wanted to go for something more touchy-feely to start out this discussion. 

Posner's "Bad News"

Judge Richard Posner has this essay, "Bad News," in today's New York Times.  Posner considers the "why", and also the "so what", of what he describes as a number of "trends" in media-and-politics, including the rise of "new media", the increasingly common charges - hurled from the left and right -- of political "bias" in the media, the alleged decline in civility, the increase in polarization, etc.  The essay is, no surprise, a fascinating read.

The essay is full of other provocative observations.  For example:

The current tendency to political polarization in news reporting is thus a consequence of changes not in underlying political opinions but in costs, specifically the falling costs of new entrants. The rise of the conservative Fox News Channel caused CNN to shift to the left. CNN was going to lose many of its conservative viewers to Fox anyway, so it made sense to increase its appeal to its remaining viewers by catering more assiduously to their political preferences. . . .

Being profit-driven, the media respond to the actual demands of their audience rather than to the idealized ''thirst for knowledge'' demand posited by public intellectuals and deans of journalism schools. They serve up what the consumer wants, and the more intense the competitive pressure, the better they do it. We see this in the media's coverage of political campaigns. Relatively little attention is paid to issues. Fundamental questions, like the actual difference in policies that might result if one candidate rather than the other won, get little play. The focus instead is on who's ahead, viewed as a function of campaign tactics, which are meticulously reported. Candidates' statements are evaluated not for their truth but for their adroitness; it is assumed, without a hint of embarrassment, that a political candidate who levels with voters disqualifies himself from being taken seriously, like a racehorse that tries to hug the outside of the track. News coverage of a political campaign is oriented to a public that enjoys competitive sports, not to one that is civic-minded.

In light of Ron's recent post on blogging by law profs, Posner's discussion of blogs, their role, and their effects is particularly interesting:

The latest, and perhaps gravest, challenge to the journalistic establishment is the blog. Journalists accuse bloggers of having lowered standards. But their real concern is less high-minded - it is the threat that bloggers, who are mostly amateurs, pose to professional journalists and their principal employers, the conventional news media. . . .

What really sticks in the craw of conventional journalists is that although individual blogs have no warrant of accuracy, the blogosphere as a whole has a better error-correction machinery than the conventional media do. The rapidity with which vast masses of information are pooled and sifted leaves the conventional media in the dust. Not only are there millions of blogs, and thousands of bloggers who specialize, but, what is more, readers post comments that augment the blogs, and the information in those comments, as in the blogs themselves, zips around blogland at the speed of electronic transmission.

This means that corrections in blogs are also disseminated virtually instantaneously, whereas when a member of the mainstream media catches a mistake, it may take weeks to communicate a retraction to the public.  . . .

The charge by mainstream journalists that blogging lacks checks and balances is obtuse. The blogosphere has more checks and balances than the conventional media; only they are different. The model is Friedrich Hayek's classic analysis of how the economic market pools enormous quantities of information efficiently despite its decentralized character, its lack of a master coordinator or regulator, and the very limited knowledge possessed by each of its participants. . . .

There's a lot more.  I have to admit, I'm not really sure where I stand on the "isn't all this new media great!" v. "we're a nation of sensation-consuming, polarized idiots" debate.  It seems to me that many people -- who regard themselves, quite confidently, as informed and intelligent -- are utterly ignorant; that the rise of the internet and talk radio has led to a more cacophonous and more conflict-oriented public conversation, and also that the effective monopoly the big networks and the leading newspapers enjoyed for a while was unhealthy.  I guess, on balance, I think things are better now -- after Drudge, Fox News, and Rush Limbaugh -- than they were before.  In class, I try to encourage some Schauer-esque skepticism about the "marketplace of ideas" argument; still, there seems to be no avoiding the point -- made by Posner -- that increased competition in the media seems to result both in the expression of more (erroneous) opinions and the exposure of more opinions as erroneous.

Rick

Another blog symposium

The folks over at Conglomerate are hosting a blog symposium to talk about Disney. And what a cast of characters they've assembled:

Sean Griffith of the University of Connecticut School of Law Larry Hamermesh of the Widener University School of Law Lyman Johnson of Washington & Lee University School of Law Larry Ribstein of the University of Illinois College of Law Hillary Sale of the University of Iowa College of Law David Skeel of the University of Pennsylvania Law School Lynn Stout of the UCLA School of Law

Sounds like fun! (And given Larry Ribstein's known penchant for writing about movies, I'm wondering whether he'll be briefly breaking away from the discussion of fiduciary duty to offer a review of Herbie, Fully Loaded).

And incidentally, wouldn't the Disney saga make a heck of a Disney movie? You'd have Keira Knightley Linsday Lohan whoever-the-eighteen-year-old-flavor-of-the-month-is, an intrepid young financial reporter learning to pronounce the phrase "fiduciary duty" as she covers the case (and uncovers key evidence, of course). You could have Geoffrey Rush as ______ the evil/incompetent executive/director (fill in the blank appropriately depending on your own view of the merits of the case), and Orlando Bloom as the young law clerk who uncovers crucial evidence in the case while falling in love with the beautiful young financial reporter. The suspense . . . the drama . . . the romance! I had better find an agent. Remember, you saw it here first. I suppose I'll have to start my "Best Original Screenplay" speech "I'd like to thank Dan Markel for his blog where I first posted this idea . . ."

Deterring Genocide

The always-smart Julian Ku (Hofstra) of Opinio Juris complains that advocates of permanent international criminal tribunals rely too much on deterrence rationales in justifying their advocacy of a standing body to punish inveterate human rights abusers without having any evidence to back up the argument that such human rights abusers could be deterred by a standing body.  Since, Ku argues, even the United States favors ad hoc tribunals, the deterrence rationale for the ICC, for example, only works if there is an additional deterrent effect upon abusers that would not already be accounted for by the use and support of ad hoc tribunals. 

It is an interesting question--but I suppose I would think he's got the burden of proof: an entrenched and standing institution should be more able to mete out justice to perpetrators, all things being equal.  To be sure, evidence for the deterrent effect is always to be welcomed.  But theoretically, I think, logic is with the advocates for the ICC on this count.

Life (sadly) imitates art

The humor site Scrappleface posted a parody, titled "[Senator] Kennedy Slams Unnamed Supreme Court Nominee."  (via Volokh).  It starts off:

Sen. Ted Kennedy, D-MA, today criticized President George Bush's as-yet-unnamed replacement for retiring Supreme Court Justice Sandra Day O'Connor as a "brutal, Bible-thumping, right-wing ideologue who hates minorities, women and cocker spaniels."  "He or she is clearly outside the mainstream of American values," said Sen. Kennedy.

It's a decent little short-humor piece, playing off of the fact that the left seems at times to be so reflexively anti-Bush that they would already be opposed to a not-yet-existent nominee.  That's pretty funny, in a way.  But the left would never actually do something so inane, would they? 

An unlikely dialogue

It's not every day that law students upstage law professors online.  But a recent blog discussion is following exactly that pattern.  In one corner of the ring is George Washington Mason law professor Todd Zywicki.  In the other corner is mild-mannered (?) Yale law student Will Baude.  So far, the fight has been no contest, with every point going decisively in Will Baude's favor. 

It helps that Zywicki probably picked the wrong fight.  He criticized a New York Times editorial for the statement that "as with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right."  Zywicki wrote "no one seriously believes that it was the founders who 'came up with the idea of a clear wall between church and state' do they?"

Zywicki's major problem, however, is the factual record.  As Baude and others rightly noted, the phrase "wall of separation between church and state" comes directly from the pen of Thomas Jefferson. 

Confronted with that fact, Zywicki tried to beat a hasty retreat, suggesting that his real argument was that a wall of separation was not "what the founders in general understood the Establishment Clause to mean."  And to Zywicki's credit, that point is almost certainly much more defensible.  However, it's not Zywicki's original assertion.  And Will Baude, like a shark after blood, pounced on the retreating Todd Zywicki, noting that -- whatever the merits of Zywicki's revised assertion --

That's not actually what Zywicki's post purported to be about-- the question was who "Came up with" the wall metaphor. The answer is that Jefferson came up with it, Chief Justice Waite adopted it in the 1870s, and Hugo Black dragged it into the sunlight for its modern revival. The New York Times is right on the specific point.

Other commenters are intervening and suggesting alternate tacks, such as emphasis on the Times' questionable pluralization.  Those may prove enough to salvage a bit of respect for Zywicki.  But so far, he has been decisively outmatched in this argument by his law student foe.  (And Dan, Hillel, Dave -- remind me not to pick a fight with Will Baude!)

An inconsistency that's not inconsistent

Over at Volokh, David Bernstein criticizes plaintiffs' attorney Barry Nace for a perceived inconsistency.  Bernstein writes that Nace defended a malpractice lawsuit by arguing, inter alia, that he

wasn't liable to the client because 'courts soundly and uniformly reject the notion that Bendectin causes birth defects.'  Two years later, Nace told the New York Times that he still believes that Bendectin causes birth defects. I guess he forgot to tell his lawyer.

Bernstein suggests that Nace's two statements -- that courts reject Benedictin cases, and that Nace believes that Benedictin causes birth defects -- are inconsistent.  (Hence the snarky "I guess he forgot to tell his lawyer").  But Bernstein is missing the obvious.  The two statements "courts think X" and "I personally believe not-X" are in no way inconsistent.  It's puzzling how Bernstein could even confuse these two arguments.

Indeed, the very New York Times article to which Bernstein links makes clear that Nace's personal views differ from his legal opinion on the legal merits of the cases.  (For a malpractice suit, it's the legal merits that matter).  The article quotes Nace as saying "this is the safest drug in terms of litigation" and that the Benedictin litigation is "hopeless."  It later quotes Nace saying "In my mind, there is no question that Bendectin causes birth defects." (emphasis added).  Sounds pretty consistent to me.

Of course, there will always be room for disagreement on the merits of the Benedictin cases.  But Bernstein seems quite wrong to suggest that Nace's two statements are inconsistent, when they are in fact very easy to reconcile.  And it seems unwarranted to suggest that Nace "forgot to tell his lawyer" about his personal views. 

(Can you imagine that conversation?  Nace:  "By the way, I personally think that Benedictin causes birth defects.  Does that change this summary judgment motion any?"  Lawyer:  "Nope."  Nace:  "Didn't think so.  Just checking.")

Hybridization

In my new role as Prawfsblawg's car critic, I am pleased to have the opportunity to respond to Dan and rate my Toyota Prius, having just driven it about 3,000 miles.  In short, everyone should get one (assuming, of course, you don't already have one--there are about 30 in the few blocks near my new place in San Francisco--and that you can get one without stealing one--they are on back order and are hard to come by).

One gets about 46-50 miles per gallon.  Really.  On the highway and in the city.  Truly amazing.  And I promise you this saves you a fortune in gas money--and quickly.  Its GPS system is pretty neat too.  Admittedly, the tank is a bit small by current standards (11.9 gallons--and it registers empty at 8, which is  absurd since you can go nearly 200 more miles before really running out of gas); but you cannot forget everytime you are filling up that you are saving substantially.  And the car isn't especially expensive in the first place.  The ticket price would strike you as very fair.

It isn't the fastest car in the world and can lag at 80 mph.  Still, it is quiet (another side benefit of going to electric power) and gets the job done.  Parking lots and valets need some instruction in how to use a car with a power button rather than a traditional key--and that can be annoying.  You won't win any races (or parking competitions because it is bigger than you think and harder to park than one would imagine); but you can feel good that your self-interest is aligned with the best interests of national security and national energy policy.  Two thumbs up.  Way up.

Now, instead of thinking about whether Rehnquist is going to step down, whether there is any real "non-infringing use" of Grokster's service, or whether Establishment Clause jurisprudence will ever make sense, do download my newest paper, recently accepted at Law and Philosophy.  That will give you a sense of what I do when I am not going to conferences or blogging about cars.  And unlike my book (which you only need to pay $11.00 for at Amazon), the paper is free at SSRN.

Thinking About the Birth Rate

A week or so ago, I (naively) posted a wish list of legislative gifts that would make life easier for the childbearing woman (more specifically, me).  Although I had mostly been thinking of reforms that would benefit women with children and possibly make it easier for a pregnant woman to choose to keep a child, Professor Kate Litvak commented that none of these reforms that I proposed, which would be subsidized by taxpayers, had done anything to increase the birth rate in European countries.  Today, Eugene Volokh is ruminating over what innovations (not regulations) could increase the birth rate.

His answer is that technological changes that facilitate young women freezing their embryos for use later in life could increase the number of children that a woman would have in her lifetime.   In fact, a month or so ago a 53-year-old woman gave birth to her second child that she gestated after having frozen the embryos for 15 years.  (I cannot find anything on the show's site to link to on this.)  I think technological advances in this direction could affect some women's choices about the number of children, but perhaps mostly just the timing of the children.

I think that when some of my friends say that they would like more children but that are too old, they don't just mean their eggs are old.  Parenting takes a lot of energy.  I had my first child at 30, and I can't even imagine how exhausting that would have been at 50.  Also, believing that one is too old to have a baby may also be connected to thinking that one would be too old to have a teenager 15 years from now.  So, any technological advances in incubating embryos would also need to be accompanied by general technological advances in medicine that keep us healthy well into our 80s.

Advertising to Teenagers

OK, I know that many people object to tobacco companies and alcoholic beverage companies advertising to teenagers.  What do we think about birth control companies?  The second question I would ask is:  when does advertising birth control become advertising sex?  OK, now that you're about to throw me off the blog, hear me out.

Has anyone seen the Ortho Tri-Cyclen-Lo commercials?  The commercials depict many young women, none with wedding rings on, giggling, skipping around, and doing ballet in the forest.  Fairy dust is floating around.  Happy music plays.  The women, who would seem teen-aged to a teen-ager, are all happy and free.  Meanwhile, the narrator tells you that this new birth control pill has lower levels of estrogen and is basically "not your mother's birth control."  In the 70's, this commercial would be a Stayfree Mini-pad commercial; today, it's a birth control commercial.  If you look at the website, you'll notice a cartoon flower, more happy young women wearing fairy clothing, a link to win reward points, and a link to "carry your pills in style" -- order a carrying case in various colors and prints, including cheetah.

Mature women rarely do ballet in forests or buy a cheetah case for their birth control.  These ads seem fairly pointed in the direction of teen-aged girls. 

Now, I'm not a person going through the 21st century with blinders on.  I would much prefer that my (future) teen-aged daughter be having sex using birth control if she is having sex.   I don't think there is anything wrong with advertising birth control to people having sex.  What I am worried about is whether a young girl who is contemplating becoming sexually active would use this ad to determine whether it is a good idea.  (I'm sure that all teen-agers use perfect logic when making these types of decisions, but bear with me.)  When I was growing up, images around me didn't depict a lot of teen-age sexuality besides movies-of-the-week that always ended in tragedy or movies of the Porky's variety.  In these ads, though, the girls are pretty, skinny, good ballet dancers, and seemingly full of self-esteem.

I may have gone off the deep end here, but I wondered if anyone else had noticed (the ad, not my plunge).

Invasion of the Pixel Switchers

When it comes to color, Leiter Reports has long been a blog that deals in extremes.  Brian Leiter's descriptions of creationist groups are always exceptionally colorful.  And the blog's schematic has long been exceptionally gray.  (If anything, the colorless format added to the blog's persona, creating the aura of a coldly thorough lab technician, systematically dismantling "intelligent design" arguments in between asides about the latest philosophy hires). 

It seems that the gray gentleman has found color.  To be precise, some guy with a bunch of green pixels has taken over the place.  And after an initial moment of shock, I think that the green looks nice. 

Of course, I do hope that green-pixel-man, whoever he is, keeps the site just as full of that juicy gossip investigative coverage of academia that we've all come to expect from Leiter Reports.

Was the Destruction of Alderaan Consistent with Just War Theory?

Professor Bainbridge has some interesting thoughts, writing that:

While the destruction of Alderaan may be regretable, it seems clearly defensible under this understanding of the ethics of strategic warfare. Indeed, as Tarkin noted, the very purpose of destroying Alderaan is to end the war more quickly. Hence, just as was the case with strategic bombing in earlier times, "the vigorous prosecution of the war" could be justified as an effort to prevent "an even greater loss of human life."

Also, he has his doubts that Leia was telling the truth when she claimed that Alderaan had no military targets. 

Next week:  The Distribution of Darth Vader's estate.  Some key questions: 

Does Leia have a claim to a portion of Vader's assets, as an "undiscovered twin"? 

May Luke claim a share of Vader's estate, or is his claim barred because of his role in Vader's death? 

What sorts of claims may be raised by the heirs of Vader's victims against the Darth Vader estate?

Heinous Political Ad in Wisconsin

I also posted this on Conglomerate because of the Wisconsin aspect, but I thought PrawfsBlawg readers would also be interested in this ad.  The ad, sponsored by the Coalition for American Families, aired this week in Wisconsin.  The ad attacks Gov. Doyle and his plan to allow some illegal immigrants to pay in-state tuition in the UW system. 

If you want to make the argument that in an environment of scarce resources, we have to make difficult choices and that we don't have the resources to subsidize the education of illegal immigrants, then that's fine.  But don't hire a Latina to complain about how this subsidy isn't fair because

We followed the rules.  We became citizens.  We work hard to save money so our daughter will be the first one in our family to go to college.  We shouldn't have to pay more taxes to fund illegal aliens.  It's hard enough to save the money to send our own children to college.

I'm sure that most immigrants applying to college would like to follow the rules and become citizens. Nice way to encourage people to pull up the ladder.

Feminist Wish List

Kevin Drum is asking his readers what single piece of legislation they would pass on behalf of feminism.  As might be expected, the comments have devolved into abortion sound-bytes, debates over the continued existence of feminism, and attacks on Christianity in general and Catholicism in general.  So, on a clean piece of cyberpaper, here is my wish.

Instead of attempting to reduce the number of abortions by attacking the supply side, attack the demand side.  Instead of making the U.S. a place where it is more difficult to have an abortion, make the U.S. a place where it is easier to have children.  If we believe that every unborn child has unlimited potential and is a sacred gift from God, then let's act like it.  Let's increase women's access to prenatal health care, postnatal health care, and health care for her young children.  Let's increase opportunities for young parents to continue their education or career path with free access to good daycare.  Let's subsidize employer daycares and university daycares.  Let's mandate meaningful parental leave.  Let's make it legal to breastfeed anywhere.  I always here from people that (1) it is almost impossible and very expensive to adopt and (2) there are children in the U.S. who will never be adopted.  Let's subsidize adoption.  Let's streamline the adoption process.  Hey, why don't we create a culture of life that glorifies the creation and nurturing of life?

Some snappy legislative aide can come up with a catchy name for this omnibus bill.  Maybe "No Baby Left Behind" or "No Pregnancy Left Behind."

Dangerous book lists revisited

So, you didn't like Human Events' list of the ten most dangerous books?  Never fear -- liberals have struck back with their own list!  Yes, Kevin Drum has compiled a list of the real ten most harmful books, including entries from Rand, Hayek, and the czarist secret police. 

So there you have it -- handy little ten-books-to-avoid lists for both sides of the political spectrum.  (Or if you prefer, call it a neat little Amazon.com shopping-list for your political enemies.) 

Meanwhile, all this list-making sounds like fun.  I'm wondering how we can get involved.  The ten most dreary law review articles?  No good -- don't want to have to sort through thousands of submissions.  The ten most incomprehensible judicial opinions?  Even worse. 

How about the ten most useless top ten lists?  Ahh, now we're getting somewhere.

Right and Left in the blogosphere

My general observation is that in the blawgosphere, blawgs that lean to the right are generally more popular than those that lean to the left.

Glib liberals will suggest that this is because right-wing ideas are more suitable to the blog medium than the more "complex" left-wing ideas that require articles and books to convey.  (This is what liberals have been saying about the success of right-wing bumper-stickers for years.)

Glib conservatives will suggest that right-wing ideas are more popular in the democratic and populist medium of the web because the ideas are, well, right.  (This is what conservatives have been saying about bumper stickers for years.)

I don't buy either one of these explanations.  Instead, I offer two other possibilities, and I believe that the answer lies in some combination of them:

1. Thoughtful conservative potential blawgers are drawn to the medium more than thoughtful liberal potential blawgers because, let's face it, within the traditional academic fora, it must be lonely to be a conservative.  Blawgs offer both a community and outlet for conservative ideas that liberals don't necessarily need;
2. Liberals interested in reading serious consideration of legal topics need not seek out blawgs, because serious consideration of legal topics from the liberal perspective can be found all over the place.  Of course, serious conservative opinionating is also available to readers in more traditional fora, but the person committed to conservative thought would have to weed through much more liberal opinionating to find it because, again, the academy's traditional media are more likely to feature liberal perspectives.

For the market-heads out there, the first suggestion speaks to the supply side; and the second to the demand.

Thoughts?

Evidence trumps theory . . . again

A while back--back when you knew me as AmosAnon1--Dan was kind enough to pimp my coauthored paper on jury education levels.  As Dan said, we found that, contrary to conventional wisdom,

educated members of society are not underrepresented on juries; in fact, juries are generally better-educated than the community from which they are drawn!

Our paper is not without limitations, as we acknowledge in our paper.  As one commenter charged:

[T]he paper's results aren't quite that strong. . . .  First, as the paper itself notes (p. 25), it did not look at any trials that lasted longer than seven days. But it's the bigger, longer, more complex trials that concern litigation reformers most; not only are these the trial where more is usually at stake, it's precisely those trials that tend to exclude more highly educated members of the venire.

Well, I was at the LSA conference presenting this paper, and Paula Hannaford pointed me to a paper she coauthored that appeared in the Tennessee Law Review.  Sure enough, their rigorous empirical analysis found

a significant and direct correlation between juror education level and case complexity. More complex cases tended to have jurors with higher levels of education.

67 Tenn. L. Rev. 627 (2000).

Well, there you have it.  And I have yet to see a rigorous empirical analysis provided by "litigation reformers" that is inconsistent with our results or those of the Hannaford paper.

Is it possible that some kinds of juries in particular kinds of cases underrepresent the well-educated?  Of course.  Anything is possible.  But in the face of this kind of empirical evidence, the "reformers" need more than elegant theories to convince me. 

To put it otherwise, I'd say the limitations of their studies are more significant than the limits on ours.  The primary limitation of the "reformers'" studies being that they don't have any studies.

Persecution and the Art of Group Blogging

Orin, over at The Volokh Conspiracy, adds a few thoughts on the hermeneutics of group blogging, in addition to Kaimi's and Gordon's posts, discussed below.

I should add just a couple things relevant to PrawfsBlawg, since Gordon singles us out in his post on group blogging synergies for comment. First, as our "About Page" states, our goal at PrawfsBlawg is not to ensure the production of euphony among the various voices that are presented here.  Thus there should be NO assumptions that what one person writes here is agreed with by other contributors to the blog; moreover, there is no obligation upon a writer to distance herself from the other persons writing here. 

Second, and relatedly, insofar as Gordon first found our postings in the beginning to be a random hodgepodge, well, that's all to the good.  Indeed, I confess that I'm a mite saddened by the prospect that some readers are in fact finding an emerging convergence.  This is a polyphonous blog; readers should find more heterogeneity here than in TVC, Marginal Revolution, or Crooked Timber, since there are basically no litmus tests here, other than that the commentary should be reasonably sharp, interesting, useful, or funny, or some combination thereof.  While the anchors of this blog may be old pals, not all of our guests are, and the point of rotating guest bloggers on a regular basis is to stir the pot so that there isn't a univocal convergence ultimately.  Of course, if Gordon was paying us a compliment, which I think he was, then I tip my hat in appreciation.  Notwithstanding the title to this post, there is no real or perceived persecution here.  But you already knew that.

We now return to our scheduled programming...

Professor-Student Blogging at L&EN

While I'm on the subject of Gordon's blogs, I would be very remiss not to highlight the unusual structure of one of his blogs -- Law and Entrepreneurship News -- particularly because I think that that blog offers a unique and very exciting new model for professor-student collaboration. 

L&EN is a hybrid of sorts, part journal-like in character and part blog-like.  Wisconsin law students who want to participate are each assigned a category -- "Small Business" or "Venture Capital" or "Bankruptcy", for example.  So Nick Infusino is the Small Business editor, Marjorie Sterne is the Patents editor, Gerry Torres is the Tax editor, and so forth.  The categories are originally set up by Gordon, who supervises the blog.

From there, the blog is essentially turned over to the student editors, whose job is to post when they see a case or article that touches on their topic.  A Business Week article or two on small businesses?  Nick points them out in a post.  A recent case dealing with patent issues?  Marjorie posts about it.  And so forth. 

At the end of the semester, the blog itself has several months of frequent posts on a range of entrepreneurship-related topics.  And the student editors have become mini-experts of a sort on their topics, since they've been reading news articles and cases on their topics and blogging about them regularly. 

It seems like a great way to get students involved, and a very exciting method to foster student-professor collaboration.  It also may be the first new use of the unique strengths of blogging as a medium in the teaching of law.  (Prior to seeing Gordon's blog, I wasn't sure at all that blogging as a medium had anything to offer in student-professor interactions that other electronic media, like message boards, didn't already offer.) 

Having watched it in action, I'm now a big fan of Gordon's collaborative blogging model.  Once I get my feet under me as a professor, I fully intend to steal franchise :) Gordon's idea and set up something similar. 

L&EN is pretty close to brand-new, and I suspect that Gordon may tinker with the model slightly to work out any kinks that came up the first year.  I'll be keeping an eye out, because I think I've seen the future -- and it's called professor-student blogging.

A positive review of PrawfsBlawg

Wisconsin Lawprof and cheese-monger extraordinaire Gordon Smith (who blogs at Conglomerate, Law & Entrepreneurship, and at Times and Seasons, where I'm one of his co-bloggers) has posted some interesting thoughts on "blogging synergies."  He writes that synergy between co-bloggers can really help a group blog to establish itself, in a way the the whole becomes greater than the sum of the parts. 

I think Gordon's on to something.  Blogging synergies allow co-bloggers to build off of each other's strengths and to explore more thoroughly their common interests.  Plus, a good group blog brings together the separate (but overlapping) communities of people interested in the subjects discussed by each of the different contributors, and that interaction creates its own synergy.  And finally, a good group blog can avoid one of blogging's biggest pitfalls -- dead time -- by having enough contributors to consistently keep good material flowing.

Gordon also has some kind words for us Prawfsblawgers in particular, writing: 

It's been entertaining for me to watch Prawfsblawg organize. At first, the posts seemed like a wholly random collection of thoughts, most about law schools and law teaching. As time has passed, the bloggers over there have been refining their blogging styles and converging on a more consistent style. Moreover, they have expanded their topical repertoire, and they now post on all sorts of legal issues while retaining an affinity for topics relating to law schools and law teaching. My sense from looking at the long list of guest bloggers is that they are still figuring out the ultimate direction of the blog, but they are in the process of creating a really good product.

Thanks for the kind words, Gordon!  I've enjoyed Prawfsblawging so far as well, and like you, I have the sense that the blog is cohering into something distinct and recognizable.  Hopefully the future will see the development of this voice, as well as bringing added synergies that make the blog even better.

Religious Laws

E. Volokh is arguing at the VC and at The Huffington Post (here and here, respectively) that people need to have the right to make their political decisions for purely religious reasons and that it is a mistake (constitutionally and otherwise) to criticize citizens or leaders who vote for policy outcomes to enact their religious viewpoints into law.

I appreciate Volokh's point.  It must be the case that people should be free to develop their opinions consistent with their consciences.  It could only be a flaccid politics that would disallow people to make decisions according to the principles they hold most dear.

Still, I wonder if this line of reasoning doesn't make it too easy for the religionists.  It has to be the case that there are demands of public reason in secular liberal societies that prevent policies from being enacted when, at their core, they are nothing more than a religious preference.  So we have to build in a constraint or two.  We couldn't, I take it, allow a majority of leaders or citizens to enact a public policy for religious reasons only because there are potentially secular reasons that may have motivated some of the policy's adherents.  If a majority of an enacting Congress appeals to the Bible to justify a law, that must run afoul of Establishment Clause principles, despite our deep commitment to freedom of conscience.  What if a majority of voters in measures of direct democracy (say, banning same-sex marriage) are motivated almost exclusively by religious reasons?  Would that not also seem to run afoul of the Establishment Clause and impermissibly mix religion and law?  In short, Volokh is right that it is too facile to condemn all whose political beliefs emerge from a religious viewpoint; but we must be careful before we allow religious reasons to justify actual policy enactments.

America voted

Congratulations to new (so) American idol Carrie Underwood! Underwood has a sweet soulful country sound and I will definitely buy her record. Americans showed once again that they do have a taste for voting, just not for political politics. Pop politics received this season on idol a striking record of one half-billion votes!

Of Amici, Ethics, and Blogging

So I was talking to Julian Ku yesterday.  He's a foreign relations law expert at Hofstra and blogs about international law and the like at Opinion Juris.  Of late, he has spent a lot of time blogging about the Supreme Court's Medellin case.  His various views can be found, e.g., here, here, and here.

When the case was before the Supreme Court, he also submitted an amicus brief in the case, along with other law professors (see it here).  I got to thinking about what ethical responsibilities an amicus author might have to his "client," whomever he/she/it may be.  Say I submit or sign an amicus brief on behalf of the American Society for International Law to the Supreme Court.  Are there ethical duties that may prevent me from freely blogging about my thoughts on the case?  Julian: can you ask Monroe or other legal ethicists?  Can someone write in with the answer?

From the Department of Needlessly Inflammatory Comparisons, Volokh.com Division

Comes now a post by Volokh conspirator Dave Kopel, which begins:

In 1924, after Lenin's death, the Communist Party of the Soviet Union introduced the concept of " socialism in one country." Recognizing that the hoped-for Communist revolutions elsewhere in Europe would not take place, the Soviet Communists set about building their version of "socialism," and then adding other nations to their "socialist" sphere of hegemony whenever possible. Today, many international gun prohibition advocates have recognized that, even though world-wide gun prohibition is not achievable in the near future, gun prohibition can be advanced in individual nations.

This is shocking news, of course:  Modern gun control proponents want to work incrementally.  This is outrageous because the Communist Party also once worked incrementally.  Such (shocking!) similarity is apparently more than enough justification for tying together these two entities -- one of which invokes strong negative connotations -- within the same paragraph.

The comparison is gratuitous.  There is no discussion of the merits of Communist incrementalist strategy or of any partcular similarities between Communist incrementalist strategies and gun-control incrementalist strategies.  There is no mention of the numerous relevant disparities between the groups.  Perhaps most importantly, there is no hint at all that every political group on the face of the planet uses incrementalist strategies at various times.  This is the equivalent of saying "Lenin used pen and paper, and so does Handgun Control, Inc."  It's an incredibly irresponsible comparison, and frankly, I'm surprised that Eugene Volokh, who is normally a stickler for fair argument standards, is putting up with it.  My guess is that he simply didn't notice it.

Eugene, of course, is well-known for his use of "substitute in another party's name" hypotheticals to illustrate unfair arguments.  I can't claim the same dexterity with the form that Eugene regularly displays, but I think that even my own less agile attempt at this kind of adaptation makes clear the extent of the problem:

When he was in charge of Fascist Italy, Musolini used to meet with his followers and rile them up.  This was an important Fascist tactic.  Today, the NRA meets with its members and riles them up. 

Is that really a fair comparison? 

And if not, then what on earth are Lenin and the Communist Party doing at the beginning of Kopel's post?

Legal Affairs Debate Club

The Debate Club looks promising this week: Should states abolish marriage?

In the first post, Mary Lyndon Shanley begins to construct her argument that, rather than simply provide civil marriage to same-sex couples, states should do away with "marriage" altogether and replace it with civil unions; "marriage" should be a term employed by religious groups.

This is something I've given a great deal of thought to.  I think that one of the reasons same-sex marriage is taboo for so much of the country is that marriage is still identified as a very religious institution.  There is something odd about the fact that being united in a church or synagogue is itself sufficient to confer a secular social status.  Are there any other civil functions akin to presiding at a wedding that can be performed by clergy? 

It is easy to see why, historically, marriage straddles the line between church and state.  But it is also easy to see that if we were designing the institution from scratch today, we'd probably come up with something entirely different.

In principle, therefore, I agree with Shanley.  Hers is even a solution that religious people could embrace (putting aside the current political tenor, which makes it impossible), for it reinforces the religious character of marriage.  Recall that one of the strongest arguments in favor of the general separation between church and state is that religion itself becomes corrupted when it is entwined with the state.

Alas, of course, this policy proposal is unlikely to win many adherents, for a variety of practical reasons.

I look forward to reading this Debate Club, and I'm particularly interested in seeing what Shanley has in mind for civil unions: to whom would they be available (e.g. just couples, or also groups), and how much would the rights and responsibilities associated with civil unions look like the rights and responsibilities currently associated with marriage?  In other words, are we just talking about a semantic change, or does she have in mind much larger reforms?

The Courtroom as a Hall of Triangles?

Ian Ayres, at Balkinization, is thinking through whether criminal juries should be prevented from seeing non-testifying defendants.  Presumably, without being able to see the defendant, a jury would be unable to use information about what s/he looks like to render a verdict.  Why this fabulously bizarre idea wouldn't apply to civil cases too isn't made clear.

This seems like an uncommonly silly proposal -- and the further applications Ian envisions would, quite simply, make a courtroom look like a funhouse, defying the aesthetics of openness so critical to our system of justice.  Most basically, the premise -- supposedly based in Malcolm Gladwell's new book -- seems plainly wrong: Ian claims that "[t]here is no reason in the world that the jurors need to see a non-testifying defendant," and that "Gladwell is clearly right that there is no reason why jury should see defendant."  I would think that the information a jury could glean from watching a defendant shift in his seat during testimony about him/her and the crime would be at least as useful to a jury as a defendant's testimony.    

Those Communists

A few weeks back, AA1 and I tried to dissect Jim Lindgren's attack on our Gerontocracy by poking holes in the substance of his proposal.  But I failed at the time to deflate some of his rhetoric.  He wrote:

The current Court is nothing less than a gerontocracy—like the leadership cadre of the Chinese Communist Party.

Preying on some Americans' sense that the Chinese live in a completely repressive and autocratic society, Lindgren hopes to use the CCP as codeword for political evil. 

As some of our readers know, I have an interest in how the CCP is doing its business these days (and have written on my recent exposure to the CCP here).  In the service of educating people about the CCP's interesting experiments in real (deliberative) democracy, I offer this article from Time/Asia.  Let's not jump to conclusions too quickly about that one-party authoritarian regime.

Check it out

One of my favorite sites on the web is the Legal Affairs website.  In addition to posting insightful articles from the magazine, it also hosts Bashman's How Appealing blog, an absolute treasure for the court watcher, practitioner, commentator, or scholar.

But by far my favorite element to the site is the "Debate Club" feature.  If you haven't discovered it yet, go take a look.  Each week, the powers that be at Legal Affairs invite two legal commentators to debate an interesting topic.  Some of the topics are more compelling than others, of course; but it is usually a good read.  All of the archives are available.

This week, Phillip Carter and James Joyner discuss whether the U.S. military must adopt a draft if it is to maintain its global presence, an issue discussed previously on slate.

I personally don't have a horse in this race, but it seems to me that the best argument in favor of a draft is that it would give everyone in the country a personal stake in military policy.  Of course, that benefit is only realized if the wealthy, the elite, and the connected are not given favorable treatment.