Efficiency v. Justice

It only takes 16 pages of Blackwell's Companion to Philosophy of Law and Legal Theory before the attack on Law and Economics begins with a bang. In his introduction to property law, Columbia Law Professor Jeremy Waldron throws down the gauntlet:

In general, Law and Economics professors have made no attempt to show why we should be preoccupied with efficiency to the exclusion of all else, or why the law should take no interest in what has traditionally been regarded as its raison d'etre - namely justice.

My Contracts professor, Robert Scott, gets some attention in the subsequent chapter on contracts, but otherwise it looks like it'll be another 300 pages before I get to a thorough discussion of L&E.

More on the Redactions

A reader sent in some interesting thoughts:

I haven't read all of the redactions, or all of the redacted document, but I think you might be missing one prominent reason for at least some of the redactions: namely, that the passages in question demonstrate that DOJ, even under this Administration, has acted in a manner that would have been unconstitutional according to DOJ's own briefs in Grutter and Gratz. Take the example you give, for instance: "The fact that the current top political leadership of the Department is diverse sends an important, positive message as the beginning of management's leadership strategy." If "diversity" was part of the management's "leadership strategy," and if such diversity in the appointed positions within the Department was being sought in order to send "an important, positive message" -- and both things are undoubtedly true, as anyone can see (putting aside debates about whether the particular message being sent was in fact "important" or "positive") -- then, according to the SG's own briefs, the Department was acting in violation of the equal protection component of the Fifth Amendment's due process clause. (Of course, in light of the decision in Grutter, that no longer is necessarily the case.) This is simply one prominent example demonstrating that the folks actually running the Bush Administration did not ever believe what the SG told the Supreme Court -- in other words, file under "Actions Speak Louder Than Words."

These are excellent points, and well worth discussing. It does look like many of the programs currently in place at the DOJ, and many of those recommended in the report would violate either the letter or the spirit of the administration's stated positions in Grutter. Looks like it is a good thing they lost that case.

Ridiculous Redactions

I spoke a couple days ago about the new report praising diversity at the DOJ. Well forget that. It turns out half of the report was redacted, and through the miracle of lousy computer security, we now have the unredacted version.

Why was this blacked out? To avoid embarrassment? To prevent anyone from realizing that this administration is not perfect, that there are still problems in the government? Can't these people ever admit when something is wrong?

Here's my favorite redacted line:

The fact that the current top political leadership of the Department is diverse sends an important, positive message as the beginning of management�s leadership strategy.

Well that sounds good, why would they redact that? Maybe because most of those minorities leaders have already left the department. I guess that sends an important, negative message then, doesn't it?

Here are some other choice pieces blacked out when publicly released:

Continue reading Ridiculous Redactions.

Philosophy of Law

For over a year now I've been wanting to start reading philosophy of law, after a brief excursion last year into political philosophy. Well today I picked up and began Blackwell's Companion to Philosophy of Law and Legal Theory, an anthology edited by Dennis Patterson of Rutgers Law. I've owned the book for months, but hadn't opened it up. Well today I did, and what did I find in the table of contents? Brian Leiter on "Legal Realism," Jack Balkin on "Deconstruction," and Larry (I mean Lawrence B.) Solum on "Indeterminancy." It's a legal blogger's dream!

Other books on my reading list include H.L.A. Hart's The Concept of Law, Fuller's The Morality of Law, Finnis' Natural Law and Natural Rights, Kennedy's A Critique of Adjudication, and Dworkin's Taking Rights Seriously, Law's Empire, and Freedom's Law.

Anyone have further suggestions?

UPDATE: Blogging is really great. I just got a very nice e-mail from Professor Patterson thanking me for mentioning the book. Well thank you Professor for providing the perfect starting point for anyone interested in legal philosophy. I'm through the first two essays (on property law and contract) and can already say this volume is highly, highly recommended.

UPDATE II: Here is Professor Solum's Top Ten Contemporary Jurisprudence books. Looks like I need to pick up a few more texts. I have Rawls' Theory of Justice but haven't been sure where to fit that into the reading plan.

To BarBri or not to BarBri

That is the question. I'm pretty hesitant to drop that much money in order to watch videotaped lectures. I've always been a book learner, and my gut instinct is to buy the books but not the lectures. I'll mostly likely be taking the Virginia bar. Any advice from the gallery? Remember that the Army does not reimburse for bar exam review expenses.

A Democratic Virginia?

Of all the things I didn't think would come into play next election, the idea of Virginia voting Democratic is near the top of the list. Imagine that, my vote actually counting for something. Looks like I'll have to pay attention this time.

Of course, in the insanely unlikely event a Democrat could win Virginia, I imagine it would be accompanied by a full-scale nationwide Bush collapse. So maybe it wouldn't matter anyway.

More on Intrinsic Rights

Micah Schwartzman has a response to my intrinsic rights post. He's certainly much more qualified to talk about this stuff than me, and my original post was obviously painted with too broad of a brush. Nonetheless, I have a few responses and clarifications.

Continue reading More on Intrinsic Rights.

Choosing a Firm

I've had a few angry moments during this job search. Despite those experiences, I've done very well overall and am now in the exciting but difficult position of having to decide which offer to take for next summer (though I still stand by the "bullshit grade-whoring crapshoot" label). Right now I've narrowed it down to 2 D.C. offices, with one callback in Chicago still to go.

The 2 D.C. offices could not be more different, as far as firms go. One is among the very top firms in D.C., a big main office with 300+ attorneys. The other is a much smaller (<100) branch office of a non-D.C. firm. The former has a better reputation in D.C., and probably everywhere but the latter's home base. The former has a much broader practice, but the latter is stronger in the areas that most interest me, trial litigation and white collar crime. The people at the former were friendly, the people at the latter were just plain fun to be around. I feel like the former have decided I'm "good enough" to work for them, whereas the latter see me as a potentially exceptional candidate.

I'm not yet sure whether I want to work in the firms after law school (if the Army lets me go reserve) or whether I just want to do my 4 years active and go from there. As such, it's a tough decision. On the one hand, the bigger office would probably look better on my resume, and might be the better place to go "two years and out". On the other hand, if you told me I had to pick a place I'd work for 10-20 years, I'd take the smaller in a second. I'm trying to narrow it down to one D.C. firm before I go to Chicago, but it's not easy.

Intrinsic Rights? Hogwash

A South African Rhodes Scholar has used my post regarding the Gitmo prisoners as an example of what he calls the "sad" decline in the American sense of justice post 9/11:

Well, at least the author thinks that the detainees should have access to legal process, which is more than the Bush administration is willing to grant them. But, more seriously, firstly, rights are not extended to people on the basis of whether they 'deserve' them or not. Rights are intrinsic; humans have rights by virtue of being human, not by virtue of perceived moral character. One does not give someone a right out of a sense of magnanimity; rights are owed. Secondly, what on earth happened to the presumption of innocence, one of the most fundamental principles of criminal justice? How can the author claim to have 'little sympathy' for the detainees when their guilt or innocence has not been established through the judicial process?

If "rights are intrinsic", then define them. Come on, I'm really interested to hear all about my instrinsic rights. Which rights are these? Who gets to define them? What enforcement mechanisms? Don't waste your time. It's a bunch of pseudo-ethical mumbo jumbo that has little meaning in print and even less in practice. A system based on "instrinsic rights" extends protection only as far as the judge, jury, and executioner want.

Continue reading Intrinsic Rights? Hogwash.

Diversity at Law Firms and the DOJ

Law.com has an article about a new study analyzing racial and gender diversity among the lawyers at the Department of Justice:

According to the report, conducted in 2002 by KPMG Consulting (now known as BearingPoint) and Taylor Cox Associates, the Justice Department's attorney ranks are more diverse with respect to race, ethnicity, and gender than the U.S. legal work force overall.

The article doesn't list every recruiting technique that the DOJ uses to bring in (and hopefully retain) minority attorneys, but the ones they do list don't seem to offend any notions of nondiscrimination:

At a ceremony in the Justice Department's Great Hall, Thompson announced that the department was creating a new recruiting position responsible for reaching a broader applicant pool and would begin advertising all attorney vacancies on the Internet.

And to improve morale and retention, Thompson reported that the department would institute a mentoring program for all incoming attorneys, initiate diversity training, and establish a formal career development program.

In addition, the department launched a student loan repayment program that will assist roughly 50 lawyers this year and up to 100 lawyers in 2004.

This might help to explain one of the stranger things I saw in this interviewing season: numerous firm brochures which listed both their nondiscrimination policy and their commitment to a diverse workplace on the same page.

But what I've been wondering is whether opponents of affirmative action would also be opposed to recruiting and marketing drives that clearly target minority groups. Here's a hypothetical, for argument's sake: Firm A is a very prestigious firm, ranks high in all the various lists, and normally recruits only the cream of the crop from the top schools. But it has a problem with racial diversity, having only a handful of minority attorneys. So this fall, the firm decides to interview not only at Harvard, Yale, Stanford, and Chicago, as they do every year, but also at Howard. They make it a policy to hire at least one person from each school. Have they done anything morally and/or legally wrong? Have they violated their own nondiscrimination policies? What about those of the law schools?

UPDATE: Along these lines, Tung Yin points me to Eugene Volokh's law review article on California's Prop 209; particularly interesting is the section on outreach programs:

Continue reading Diversity at Law Firms and the DOJ.

Leavitt as EPA Chief

As an ardent environmentalist who lived in Utah for 6 years, I feel quite a bit of trepidation concerning the confirmation of Utah Gov. Mike Leavitt as chief of the EPA. Yet take a look at that article (an AP release), and you won't find one bit of information regarding Leavitt's tenure as governor or his actions and views regarding environmental protection. It's just another story about Senate politics. The same has been true of most of the stories about Leavitt's nomination over the past several weeks. That's a bad sign.

For those who are interested, here's a bit of actually helpful journalism from USC's Daily Trojan.

Why Would You Say That?

Alright, I understand Mr. Schiavo is under a lot of pressure and is likely receiving a good dose of hostility from many quarters. But why would you go on television and tell the world that your wife put herself in a coma because of an eating disorder?

Michael Schiavo, the man at the center of a right-to-die controversy in Florida, said Monday he believes his wife's heart failed 13 years ago as a complication of bulimia.

Anyone watch the interview or have a plausible explanation for why he would bring this up?

I Agree, Release the Data

Steve at Begging to Differ thinks Harvard Law Review should release the data regarding gender and their selection proces. I agree. As Steve says:

If indeed they spent thousands of hours crunching the numbers, and if indeed the numbers show men outpace women in grades and legal writing, well, let�s see those numbers. Don't just throw it out there and expect anyone to take your word for it.

If the numbers show the disparity, then we know that the point of attack should not be at the selection process, but in the training and testing of the students. But if they don't, then we know the problem is with the Law Review. And Sasha Volokh's whole "the Law Review's selection methods are not the HLS community's business" is way off base. Though it is a private organization, it is a student organization affiliated with the university, using the law school's name, and profiting thereby. No organization at Harvard may discriminate on the basis of sex (ask President Summers why fraternities and sororities are not allowed on campus), and the community has a right to verify that the law review is not engaging in such discrimination.

That said, I would be surprised if there was such discrimination. That doesn't mean there's not a serious problem at Harvard (and at UVa, and I assume at our sister law schools). Women as a group ought not be systematically "underperforming" according to the law school rubric, and if they are, I for one think it's a problem with the rubric. So perhaps the law review itself doesn't deserve the heat it's getting, but if they'd release the numbers we'd know where to look for the source of this disparity.

Simultaneous Deaths and Property Law

Transmogriflaw has stumbled upon my favorite property hypothetical, and I thought I'd share what I said about it last year:

Law academics are renowned for their creation of bizarre and unlikely hypotheticals. Yet as usual, life is stranger than fiction. When land is owned by two (or more) people in joint tenancy, there is an automatic right of survivorship (if one of the joint tenants dies, his/her share is automatically passed to the remaining joint tenants). Well here's a fact pattern you don't expect to find in your Property casebook:

If A and B, joint tenants, die in a common disaster and there is "no sufficient evidence" of the order of death, Uniform Simultaneous Death Act Section 3 (1953) provides that one-half the property is distributed as if A survived and one-half as if B survived. Suppose that A and B are killed while riding in a car struck by a train. When witnesses arrive, there are no signs of life in A; B is decapitated and blood is gushing from her neck in spurts. Does B survive A? See Gray v. Sawyer, 247 S.W.2d 496 (Ny. 1952).

For anyone who shares my morbid curiosity, here's the text of the decision (which was not on the merits, but rather on whether the witness testimony was sufficient new evidence to mandate a new trial):

The newly discovered evidence is that Mrs. Ruth Hickey heard the noise of the accident, turned and saw what had happened and then went immediately to the scene. She found Mrs. Gugel decapitated, her head lying about ten feet from her body, which was actively bleeding 'from near her neck and blood was gushing from her body in spurts.' Her legs were crossed but thereafter straightened out.

Realistically, a person is dead when there has been a complete decapitation of the head, as was proved in the original case; but upon a hypothetical question submitting the above statements of Mrs. Hickey and, as well, the terrific mangling of the body of her husband and other conditions relating to both, several doctors expressed the opinion that Mrs. Gugel had survived her husband for a fleeting moment. The doctors told the court that a body is not dead so long as there is a heart beat and that may be evidenced by the gushing of blood in spurts. This is so though the brain may have quit functioning.

A horrible accident that has survived 51 years to become a very strange law school casebook footnote.

Single Favorite Recording of All Time

Here's another fun game we can all play on a slow Friday afternoon. Name your single favorite recording of a song. It can also be your favorite song overall, but need not be. It can be a studio version, a live recording, an original or a cover.

Mine is Bruce Springsteen's "Thunder Road", track one, disc one of "Live 1975-1985."

Top 20 Movies of the Last 20 Years

Piggybacking on Dan Drezner and the Crescat Sententia folks, here's my list of the top 20 films of the last 20 years:

1. Twelve Monkeys
2. Glory
3. Goodfellas
4. Schindler's List
5. Rushmore
6. Moulin Rouge
7. Platoon
8. Shawshank Redemption
9. Lord of the Rings
10. The Game
11. Grave of the Fireflies
12. Leon
13. Crouching Tiger, Hidden Dragon
14. High Fidelity
15. Ran
16. Shakespeare in Love
17. Donnie Darko
18. Big Lebowski
19. Amelie
20. Fight Club


I know I'm like two years behind, but now that I've seen the first 20 episodes of 24's first season, I have a few things to say:

1. I hate Palmer's wife. I hope something bad happens to her.

2. These CTU field agents sure are good at getting killed. None of them seem to last more than 15 minutes.

3. Great, great television. I always liked Kiefer Sutherland (ever since Stand By Me), so it's been a pleasure to see such strong, consistent work from him.

Quick Plug for Howie

My favorite musician, Howie Day, came out with his second album a couple weeks back, titled Stop All The World Now. I've listened to his first album hundreds of times, so it's a little weird to hear new stuff from him. Still, any Howie is good Howie, and I can't wait to carve this new album into my brain with repeated listenings.

OH! I also just downloaded my first song from the iTunes music store. Howie's "Madrigals" from the Madrigals EP... great stuff.


The Curmudgeonly Clerk has the latest in an ongoing discussion about anonymous bloggers.

Like the Clerk, I am only pseudo-anonymous. All of my friends, family, and most of my classmates know who I am. If you know my real name, it's not hard to find out that I'm Unlearned Hand. It is a little bit harder to go the other way. I have one and only one reason for my anonymity: I am a military officer, and though I would never purport to represent my thoughts as anything other than my own, I have to be careful with what I put in the public forum. Using a pseudonym just provides a little bit of distance.


Let me make one thing clear: I have little sympathy for the detainees. If they were to sit in Gitmo for 50 years I wouldn't feel bad for them. I don't think they "deserve" the rights provided by our Constitution, and some of them probably really do not fall under the Geneva Convention rubric.

It's the lack of process which bothers me. Process implicates the captor as much, if not more than, the captive. It speaks to our morals, our capacity for seeing a fair trial given to those we hate the most. I don't think they have a right to it, but I think we should give it to them anyway. We are better than them, and we are better than the alternative which they represent.

I'm willing to cut the administration a lot of slack, but I'd like to see two things in particular in return: more transparency of the process (expected timelines, or like PG suggests, at least a metric) and aggressive forward movement on the tribunal front.

UPDATE: Thank God for Phil Carter. I'm not ready to endorse his conclusions, but at least he shares some insights and actually defines and uses the term metric along the way.

Standards for Self-Representation

Via TalkLeft I see this transcript of the bench conference in which Muhammad asked that his lawyers take over the case once again; the judge's response:

If I let them take over the case again, I'm not going to let you change again and represent yourself. I told you before that once the trial starts, it's going to be at the court's discretion as to whether you can represent yourself or not. When you asked before, it was at the very beginning of the trial, and you told me you had been thinking about it for several months, and that's the main reason why I let you represent yourself. Now, if they take over this case, they stay as counsel the rest of the way. Do you understand that? We're not going to switch back again.

This got me interested in the standards for allowing defendants to represent themselves, and how much discretion the judge has.

Continue reading Standards for Self-Representation.

And in This Corner

Yesterday I linked to Sebastian Holsclaw's abortion posts, and today I'll link to a through response by Ampersand at Alas, a Blog. In particular, he points to a key line from O'Connor's concurrence in Stenberg:

A ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.

I'd forgotten how explicit O'Connor was about this. Now we can argue about Congressional fact-finding all day, but in the end it's my belief that the current court would still strike down this legislation. O'Connor has shown herself to be quite adept at making these close cases end up exactly where she wants. It's part of why I dislike her jurisprudence so much.

That's the last from me on abortion for awhile.

Saudis Seeking Friendlier Confines

It's hard to imagine the Saudis getting coddled better anywhere than the U.S., but it looks like they're the next consumer of Britain's so-called "Libel Tourism":

A group of wealthy Saudi businessmen have opened up a new front in the terror wars. Confronted with inquiries into their alleged ties to the financing of Islamic terror groups, they have launched an ambitious campaign to clear their names by filing defamation suits in the British courts.

In a growing phenomenon that lawyers have dubbed "libel tourism," the Saudis are seeking to invoke Britain's plaintiff-friendly libel laws to silence critics in the United States and in the international community.

The legal actions come at a time when American lawyers for the families of September 11 victims are aggressively pursuing a $1 trillion lawsuit in the United States that accuses dozens of Saudi royal princes and wealthy businessmen of providing funding that led to the terror attacks. By targeting U.S. media organizations and others in the British courts, some of the Saudis may hope to shift the focus and win judgments elsewhere.

Well I've been hearing about these British libel laws for some time, and have been wondering how it is that our two countries have developed such disparate systems. I went looking around the internet, hoping to find some explanation based in policy or history. Instead, the only difference seems to be the First Amendment. Looks like I ought to get around to reading that copy of Anthony Lewis' Make No Law.

Thankfully, it appears that those of us with no foreign assets can rest a bit easier:

Writing in the Libel Defense Resource Center's 1999 Cyberspace Project, Kurt Wimmer, a partner specializing in new media at Covington & Burling, and a Harvard law student, Joshua Berman, note, "Even assuming valid jurisdiction, a foreign plaintiff may not, consistent with both international law, U.S. foreign relations law, and U.S. public policy, enforce an Internet libel judgment in U.S. court, so long as that judgment is inconsistent with the requirements of the First Amendment."

Well that's a relief.

Justice Moore Fails to Get Pryor Disqualified

Chuck Shumer must be dancing in the streets: two ardent right-wingers in a judicial deathmatch:

The Court of the Judiciary on Wednesday rejected suspended Chief Justice Roy Moore's bid to remove Attorney General Bill Pryor from the judicial ethics case that could lead to Moore's removal from office.

The court issued a one-sentence ruling saying only that the motion was denied.

Moore had argued that Pryor has legal conflicts and should not be allowed to prosecute him for refusing a federal judge's order to remove a Ten Commandments monument from the state judicial building's rotunda.

(Hat tip: Southern Appeal)

Habeas Filing Deadlines

Per Howard Bashman's request, here's a few words on today's 6-5 6th Circuit decision. As explained by the dissent, the issue at stake was whether the 1-year statute of limitations for federal habeas petitions includes:

the time between the denial of petitioner�s state post-conviction claim and the denial of his petition for a writ of certiorari on that claim before the Supreme Court.

The majority held that:

the statute of limitations... is tolled from the filing of an application for state post-conviction or other collateral relief until the conclusion of the time for seeking Supreme Court review of the state�s final judgment on that application independent of whether the petitioner actually petitions the Supreme Court to review the case.

Well let me say that though I took Civil Procedure and Criminal Procedure last year, we never covered habeas relief and spent limited time on statutes of limitations. But I gather that the dissent (and apparently all other Circuits) believe that the statute of limitations should begin to run when the highest state court has denied the claim, and should not be tolled while the defendant appeals to the U.S. Supreme Court. The majority seems to rely on pragmatic concerns which would promote an easy and uniform standard. The minority makes the dangerous move of actually trying to follow the language of the statute.

I think Bashman's quite right (of course) that this is not the end of this case, and I will look to see the Supreme Court's writ of certiorari. Kind of a sick thing to be looking forward to a statute of limitations case. Thanks Howard!

More on Partial-Birth

For more on the partial-birth question, look no further than Carhart v. Stenberg, the 2000 decision overturning Nebraska's partial-birth abortion law. There were multiple problems with it, especially that it had no health exception and was overly broad. On the broadness issue, see O'Connor's concurrence:

Nebraska�s statute is unconstitutional on the alternative and independent ground that it imposes an undue burden on a woman�s right to choose to terminate her pregnancy before viability. Nebraska�s ban covers not just the dilation and extraction (D&X) procedure, but also the dilation and evacuation (D&E) procedure, �the most commonly used method for performing previability second trimester abortions.�

I won't go into the details on the various kinds of procedures (read Breyer's opinion if you want them), but here's an edited passage from the amicus brief filed by the American College of Obstetricians and Gynecologists:

�Depending on the physician�s skill and experience, the D&X procedure can be the most appropriate abortion procedure for some women in some circumstances. D&X presents a variety of potential safety advantages over other abortion procedures used during the same gestational period.... That D&X procedures usually take less time than other abortion methods used at a comparable stage of pregnancy can also have health advantages. The shorter the procedure, the less blood loss, trauma, and exposure to anesthesia... Especially for women with particular health conditions, there is medical evidence that D&X may be safer than available alternatives.�

I don't know if any of that is helpful, but that's what the court focused on in when it last saw these laws.

I'll tell you what, the thing that gets me is the Congressional activity. Of all the legislative bodies in America that ought not be regulating a woman's right to choose, Congress is at the top of the list. Drugs and abortion, Republicans love the feds.

UPDATE: Here's a link to the bill. From my cursory look, I see an exception for life of the mother but not health. If that's true, I don't see it passing muster with this court. I can't decipher whether it has the same problems re: vagueness of prohibited procedures.


It's interesting to look at this Florida right-to-die case in light of the Court's opinion in Cruzan v. Missouri:

A lawyer for the husband of Terri Schiavo, the brain-damaged woman at the center of a Florida right-to-die controversy, said Wednesday a new law allowing Gov. Jeb Bush to order her feeding tube reinserted is unconstitutional.

Well let's take a look at Cruzan. In that case, the challenged law was Missouri's requirement of "clear and convincing evidence" to show the now-incompetent patient wished to have treatment withdrawn.

Whether or not Missouri's clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the State may properly seek to protect in this situation. Missouri relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the States -- indeed, all civilized nations -- demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death.

But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decisionmakers. And even where family members are present, "there will, of course, be some unfortunate situations in which family members will not act to protect a patient." A State is entitled to guard against potential abuses in such situations. Similarly, a State is entitled to consider that a judicial proceeding to make a determination regarding an incompetent's wishes may very well not be an adversarial one, with the added guarantee of accurate factfinding that the adversary process brings with it. Finally, we think a State may properly decline to make judgments about the "quality" of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.

The law in the Florida case is much different, and I have to admit I'm not familiar with the details, but it certainly raises interesting questions about powers delegated to the governor. It may also be a step too far for some on the Court. But the emphasized lines from Cruzan suggest that the husband in Florida may have an uphill battle.

Listening to the Other Side

It's not often I find a reasonable and engaging post on a topic like abortion, but Sebastian Holsclaw has started his new blog with two very good posts on the subject (one addressed to pro-life advocates, the other to pro-choice advocates). It's especially refreshing because Sebastian is himself pro-life, and I usually find it particularly difficult to discuss abortion with those I disagree with. The comments to each post aren't uniformly intelligent, but better than most discussions of this topic.

Who Represents Corporate America

American Lawyer has the details on which firms represent America's biggest companies. Most of the firms on the list are familiar to me, but I am astounded by how many different firms each company has relied on. They seem to average at least 10 different firms once you combine the different practice areas. This seems especially strange considering how many of these big firms shop themselves as "full-service" firms. If that is so important, why are these corporations spreading the business around so much?

Mistreatment of Legal Staff

As the lawyers of tomorrow, I think we ought to be paying attention to stories like this:

A Paul, Weiss partner, Kelley D. Parker, apparently received a subpar order of takeout sushi. So, according to the memo, she asked a paralegal to research local sushi restaurants. The paralegal took to the task aggressively, interviewing lawyers and staff members at the firm, reading online and ZagatSurvey reviews, and producing a three-page opus with eight footnotes and two exhibits (two sets of menus). The memo concludes by expressing the hope that Ms. Parker will now be able to choose "the restaurant from which your dinner will be ordered on a going-forward basis."

The memo was written more than three months ago, and its studiously formal language suggests it could be a parody. Regardless, it is making the rounds of New York law firms and Web sites like Gawker.com, circulated by associates and paralegals eager to expose what they see as the capricious and demanding behavior of partners. Some believe it illustrates the climate of a large law firm for many paralegals, who may feel compelled to give every assignment the single-minded vigor of a filing in a capital case, even if they are only helping to find some particularly fresh raw tuna.

Is that the sort of atmosphere we want to live in? It's certainly not one I want to create. It'll be a long time before I'm ever a partner in a law firm (actually, it may never happen). But even as a young associate I'll be working with secretaries and paralegals, and mission #1 for me is to ensure I treat them with the respect that they deserve. The behavior seen is stories like these are so antithetical to true leadership and command, it blows my mind. But that's one of the problems with lawyers. They are trained to excel in single combat, and are never taught how to work appropriately in a hierarchy, how to be both a leader and follower, how to avoid the moral hazards of collective action, and how to maintain morale.

UPDATE: At least the partners are sharing the wealth, as seen in this anecdote from the Incompetent Attorney:

The partner asked me to send an e-mail to the client with certain information. He called 10 minutes later and asked why I didn't send it. I explained that I couldn't find my files anywhere and I didn't remember where I put them.

He replied "Oh, they're on my desk. I went through your office last night and took all your files. Come by and get them."

Well that's something to look forward to.


This is the coolest damn thing I ever saw. I can't believe it took the record business this long to [allow Apple to] create it.

Atheists and the Law

Ylgesias has a post up about atheists that I don't really agree with:

A secular person, of course, may be reigned in by the law, but a president constrained only by the threat of legal sanction would be a dangerous thing indeed, because all rhetoric aside, the President of the United States is, to a large degree, above the law in virtue of his large say in what the law is.

But how would this theory apply to our current President? Plenty of arguments out there suggest his faith is exactly what does make him think he's above the law.

Matt seems to be forgetting how often "God's law" and American law (esp. the Constitution) might come in conflict. I'd rather have someone beholden solely to the latter rather than solely to the former. Of course there are also plenty who seem to be balancing the two pretty well.

My Future Clients

Can't wait to work for these guys next summer. Two different firms I interviewed with (and really like) bragged to me about their representation of Saudi royals:

Lawyers representing two Saudi princes argued Friday that their clients have immunity from lawsuits relating to the terrorist attacks of September 11, 2001, because they are diplomatic officials.

Saudi Defense Minister Prince Sultan bin Abdul Aziz and Prince Turki al-Faisal, formerly head of Saudi Arabia's intelligence agency, have been sued by hundreds of relatives of the victims, who allege that they knowingly contributed money and support to al Qaeda through Islamic charitable organizations.

The $1 trillion lawsuit says members of the Saudi royal family paid protection money to Osama bin Laden's group to keep it from carrying out terror attacks in Saudi Arabia.

The lawsuit claims the money was paid soon after the Khobar Towers bombing in Saudi Arabia that killed 19 U.S. airmen in 1996. The suit does not specify the amount of money involved in the payoff.

Since I'm in Foreign Relations Llaw this semester, you'd think I'd have something interesting to say on the topic. Unfortunately, I'm a month behind in the reading. Still looks pretty interesting.

From Law School to Iraq

I'm sure he's not the only one, but Michael Moebes has quite a story:

Two months shy of his law school graduation, Michael R. Moebes sat in a Decatur, Ga., coffee shop working on a paper about retirement planning. Then his cell phone rang.

It was Mike Nave, Moebes' colleague from the Tennessee Air National Guard.

"I've got some bad news," Nave said.

"You're the last person I want to hear those words from," Moebes responded.

I have a classmate who was pulled out of law school early this year, as well as a friend from Harvard who got pulled out of his senior year. Anyhow, check out the story, it's got a collection of e-mail messages that Moebes sent from Iraq.

Base Closures

I seem to remember this being a problem that produced quite a bit of hostility towards President Clinton. Now Secretary Rumsfeld is getting ready to close more bases:

The Pentagon will take a creative approach to shrinking its military base structure, but it has not yet set targets for the number of bases to be closed, a senior official said Tuesday.

Larry Di Rita, chief spokesman for Defense Secretary Donald H. Rumsfeld, said the secretary has not instructed his staff to reduce the base structure by any specific percentage, although Rumsfeld often has said studies show a 20 percent to 25 percent surplus of base capacity.

What I'm curious about is the connection between these potential domestic shifts, and the widely reported changes proposed for our foreign bases. If we stopped having permanent deployments in Germany or S. Korea, instead basing units in the U.S. and rotating them out of country for 6 months at a time, it seems we'd need a lot more real estate state-side. Let's hope the higher-ups are considering these questions together.

Just Out of Curiosity

Obviously this is an unscientific polling method, but I would like to hear my readers' thoughts. How many of you support the death penalty as punishment for murder, but would oppose it for any rape (no matter how heinous the circumstances, so long as the victim doesn't die)? Assume, of course, that Coker v. Georgia was not on the books.

I'm very much on the fence, at least on the abstract moral question of where to draw the line for death as punishment (as opposed to policy difficulties, or problems of implementation or racial disparities).

Muhammad Trial Blogging

Don't know how I missed this, but thanks to my friend Kelly for pointing to this live blogging from the Muhammed trial. This is fascinating both for its content and for the potential it shows for blogging.

The Pledge

Will Baude has a few interesting original thoughts on the Pledge cases (along with a link to Howard Bashman's coverage):

On the one hand, it's hard for somebody with strong Originalist/Formalist sympathies to see any intellectually honest grounds on which to strike down the two words. On the other hand, there are stare decisis concerns. With school prayer's unconstitutionality given, the case becomes a lot harder. If all of your classmates stand up around you reciting phrases, led by the teacher, announcing themselves to be "under God," isn't that prayer in some non-trivial sense? Of course, many of the conservatives who support "under God" here probably support school prayer too, so they may let their desires to turn back the clock get involved in their opinion writing here (we'll see). Kennedy's vote (and O'Connor's) (and opinion, assuming he has one) will be interesting to watch, as Kennedy's the one that wrote Lee, which said that psychological coercion was enough to trigger an Establishment Clause hammer. Will Newdow be able to convince the Court that psychological coercion is at work here too? Should that be the test? Should be fun.

Agreed. I'd also like to add that I think Scalia has gotten just what he deserved. As Volokh said, "this shows the value of Justices keeping quiet about contested currently litigated issues..." Volokh also has his own thoughtful analysis of the case.

Death for Rape

Yesterday I mentioned finishing the prospectus for my seminar paper. I've been reluctant to post about it until it was in a defensible form, but I think it's getting there. So here is the first paragraph of the prospectus, which of course I'm happy to make available to anyone who is interested (it's 10 pages, double-spaced):

The purpose of this paper is to examine the abolition of the death penalty as punishment for rape during the 1970�s. The focal point for the discussion will be Coker v. Georgia, the 1977 United States Supreme Court decision striking down Georgia�s capital rape statute. Though Coker comes at the end of the story chronologically, the story will be framed by the language of the opinion. The majority�s opinion is a hodge-podge of bad history and judicial policy-making. The latter has been attacked by numerous critics of the court in this and other cases, and falls largely outside the realm of this particular paper. Instead, this paper will focus on the court�s historical discussion of legislatures and juries as proxies for public opinion. In particular, the majority places heavy emphasis on Georgia�s status as the sole remaining state to punish rape as a capital crime. Yet neither the majority nor the appellant�s brief gives any factual explanation for this legislative trend. Instead they claim that the trend is a result of the national consensus that death for rape is disproportionate. That claim might suffice if there were external evidence showing such a national consensus. Instead, the only evidence the Court offers are that very same legislative trend, and the rarity of juries using the death penalty. This circularity is not surprising once all available evidence is considered. As this paper will show, there is no historical support for claims of a national consensus against death for rape.

Forgive the ineloquence, it is after all only a prospectus.

Israel Non Grata

At first, I shared Armed Liberal's anger at the lack of labelling of Israel on the State Department's map of Saudi Arabia. Then Kevin Drum stepped up and show us what a silly over-reaction this was:

Far be it from me to go easy on the craven, striped-pants Saudi-loving weasels in our State Department � as opposed to the craven, denim-clad Saudi-loving weasel in the White House � but I notice that this map of Iran fails to label Turkey and this map of Egypt fails to label Syria. Contrariwise, this map of China does label Taiwan, and we all know how our mainland Chinese friends feel about that.

Good work, Kevin. This is a much needed reminder for pro-Israel advocates to keep their finger off the trigger except when absolutely necessary.

Obligation to Help a Burglar?

So here's the nerdy law student question we couldn't figure out today (probably because none of us really learned torts):

Let's say a burglar breaks into your apartment. Let's say you shoot him, and let's assume you have a valid claim of self-defense. But the burglar isn't killed immediately. Instead of calling 911 right away, you purposefully and calmly wait for the burglar to die, and then call 911. Suppose the burglar's family can prove that if you'd called 911 right away, he could have been saved (so we have causation). Would the burglar's family have a cognizable claim against you for your failure to immediately call 911? What about criminal charges?

UPDATE: OK just to clarify, I'm not wondering whether you can shoot in self-defense. I'm assuming that you can. What I'm wondering is, if you've justifiedly shot a burglar, but he doesn't die right away, do you have a duty to call an ambulance for the burglar that you've shot? If you purposefully wait for him to die before calling 911, have you violated some duty to help your shooting "victim"?

Consent and Alcohol

Eugene Volokh adds his two cents to the "no means no" debate between Easterbrook and Lithwick:

If I'm right that the "no means no" argument doesn't usually mean "no means never," then Easterbrook's point that "no" may mean "not now, but maybe after more wine" is something of a red herring, and doesn't really help much advance his argument. The simple "no means no" framing has misled him. And if I'm wrong, and most people who argue "no means no" do mean "no means never," then the simple "no means no" framing has misled Lithwick. (I set aside the question of at what point consent is made meaningless by intoxication; I assume the "after more wine" refers to something less than an intoxicating quality.)

For what it's worth, I think Lithwick owns this debate. What interests me, though, is the parenthetical Volokh throws in at the end. This is the very question Professor Coughlin and I are going to be working on this semester, what she calls "sex under the influence." It's an incredibly difficult and controversial question, particularly on college campuses, and it's an interesting area to delve into. In particular, it really illustrates the limited powers of the law.

Federalism and Marijuana

Larry Solum has the blow-by-blow of the 9th Circuit arguments in the medical cannabis cases, starring Volokh Conspirator Randy Barnett:

One of the marvels of the Raich case is that it exposes an extraordinary fact: more than two hundred years after the Constitution was adopted, the federal courts are still puzzling over the fundamental nature of the limits of federal power.

Absolutely... it'll be interesting to see where the 9th Circuit goes on this question, and whether the Supreme Court's new federalism will get involved to uphold or overrule. Solum has an excellent quick review of the movement from Wickard to Lopez and Morrison. Future ConLaw students should take note!

Fuck Mumia

I'm sorry for the vulgarity, but I am so sick of this case and the mindless "rebels" who champion it. Unfortunately now the entire city of Paris has taken up the cause (link via Volokh):

The city of Paris made an honorary citizen of celebrated US death row inmate and black activist Mumia Abu-Jamal, sentenced to die for the 1981 murder of a white Philadelphia policeman. It is the first time Paris has bestowed the honor since Pablo Picasso was made honorary citizen in 1971, Socialist mayor of Paris Bertrand Delanoe told an audience of 200 people, taking the occasion to attack the "barbarity" of the death penalty.

Raising his fist in a sign of solidarity, Delanoe then shouted "Mumia is a Parisian!" as the crowd of mostly-leftist activists cheered and applauded.

Good, you can have him. Let him kill your police officers.

French school children are required to study the case as part of their education.

Oh, ok. They can kill your police officers.

Paranoia or Prudence?

Looks like the military is being even moresecretive than normal about the Gitmo spy cases:

Court staff refused to give out copies of the ruling, relying on Air Force officials to do so. The copies the Air Force released have signatures of court officials and telephone numbers of al-Halabi's defense lawyers blacked out.

The recommendations of the officer who presided over that hearing, Col. Anne Burman, also are classified. Reporters traveling to the prison camp in Cuba this week were required to sign a pledge not to ask questions about the investigation.

At this point it's hard not to be skeptical every time the government tells us that things need to be kept secret. It's a symptom of being too secretive in areas that don't require it... a crying wolf effect if you will. It makes it much harder for people to assume good intentions in cases like this.

Where Sodomy Is Still Punished

Military.com has a UPI report on the potential application of Lawrence v. Texas in military courts:

The military is expected to argue that it needs to be able to prosecute for sodomy -- oral and anal sex -- between any two partners whether same sex or even married -- to maintain order.

Spinner and the team of military lawyers defending Marcum will argue Tuesday at the U.S. Court of Appeals for the Armed Forces in Washington that military regulations and laws prohibiting fraternization -- inherently coercive sex between members of different ranks in the same chain of command -- or adulterous sex, as well as conduct unbecoming of an officer, give adequate coverage.

The Supreme Court opinion was so broad, I'll be pretty surprised if the military courts try to find a way to protect these sodomy laws. "Don't Ask, Don't Tell" will be a whole separate ballgame, but I'm confident these sodomy laws will be struck down.

UPDATE: Phil Carter seems to agree.

The Future of Litigation

Law.com is running a multi-article feature on The Future of Litigation that is worth taking a look at if you've got the time. In particular, the first article on "Where We Are" tosses up some pretty radical solutions to the defects in our system:

The ultimate solution, to prolong the metaphor, may be to divert the waterway. So here's a radical thought. What if, instead of tort litigation, we had a national victim's compensation fund, funded by a tiny tax on all corporate revenue? We could still have plaintiffs lawyers investigating malpractice and bad products and all the other problems that lead to personal injury suits. But liability would be determined by a minicourt administered by the fund, and damages would be awarded based on a matrix of injury. Egregious conduct by corporate defendants would result in punitive damages to be paid into the fund. Legitimate victims would be compensated fairly, innocent corporations would be vindicated, transaction costs would be slashed.

That's about as huge a departure from our current system as I've heard anyone seriously contemplate. It has a snowball's chance in hell of becoming reality, but it reflects one person's view that the system is broken AND tort reform is not enough.

Credit Where Due

Though this particular post is about broader issues in Iraq, I want to stop and give Matthew Yglesias credit for continuing to point out that "we can't keep up what we're doing for years and years without... doing incredible harm to the Army Reserves and National Guard."

It's an issue he's been bringing up for months, and it looks like the mainstream media is finally starting to pick up on it. In my mind this is the single biggest issue facing the United States military today.

UPDATE: In comments, PG suggests that this problem might pre-date the current conflict. She's quite right, we saw hints of this both in the Balkans and the no-fly zones in Northern and Southern Iraq. I think a perverse twist of a history is largely, though not wholly, to blame. During the Cold War, and especially the 1980s, we had huge defense spending and a huge military fully prepared to fight two wars at once. Yet because of the Cold War tensions and the Vietnam experience, we hadn't had a real military conflict since Vietnam (Grenada and Panama don't really count in my book). When the Cold War ends, so does support for the huge military. Especially after the Persian Gulf war, we saw huge cuts in manpower, whole Army divisions disappearing. Yet the end of the Cold War also allow for a decade of smaller operations (Haiti, the Balkans, Somalia, no-fly zones) which in a way actually increased our manpower needs from what they actually were during the Cold War. The large and extended committments we now have in Afghanistan and Iraq (as well as our continuing committments in Korea and the Balkans) may be the straw that breaks the camels back and forces America to decide. A larger military or a cut in foreign involvement?

Why Plame Matters

Let me confess, I really don't think the Plame affair is a particularly big deal. It doesn't tell me anything I didn't know about Washington politics, and I'm not convinced it was a particularly nefarious activity.

But at least the press has regained its critical abilities. Whether I agree or disagree with a particular president or his policies, there's nothing I can't stand more than an acquiescent press. It's an indictment of Americans that they don't find ways to keep themselves better informed, but so long as Americans suffer that laziness we must demand more from the big media. They need to be skeptical, ask tough questions, and highlight the weaknesses and hypocrises of those in power along side the strengths and achievements.

As If It Mattered

If I cared even a bit about the California recall, which I don't, I might be persuaded by the line of thinking that Alex Knapp sums up here:

Apart from a minor setback, I think I've been pretty unabashed in my support for Arnold Schwarzenegger's run for governor. But in case you've missed that, let me just say to all you readers out in California that I wholeheartedly support Arnold Schwarzenegger for governor of California. Gray Davis is a mess, Bustamante more of the same, and McClintock is just damned scary--let's keep the Christian Reconstructionists out of office, shall we?

The fact of the matter is, we need more socially liberal, economically conservative politicians out there. Especially ones who show some basic competence in real life. Here's a guy who came to this country with nothing and built himself up. He's a shrewd businessman and one of the best action stars on the silver screen. He's not a perfect man by any stretch, but good lord, who is? He's said and done some stupid things, but haven't we all?

I can't come out and say that under Arnold's leadership, California will recover from its fiscal crisis. To be honest, I'm not sure how soluable the problem is when you have a legislature dominated by partisan idiots. But I think that Arnold's basic plan, attracting business back to California, and his corruption-reducing reforms of opening up government are a good step in the right direction. Ideally, I'd love to see Governor Arnold stand up to Ashcroft in defending California's right to self-determination with its medical marijuana laws. That may be hoping for too much, but given Arnold's past... maybe not.

At least he's picked a side. I guess I'd vote no on the recall anyway, since it seems like such a power grab, but at this point I think California gets everything it deserves. The whole state has really lost my respect, particularly considering the role it could be playing as a positive leader for our country. As it stands now, I just keep hoping the rest of America can avoid the worst of California's problems.

Guest Speakers at Tacitus

Several very good conservative bloggers, including Max from Dead Ends, are guest-blogging over at Tacitus' place. Go check it out, they've got something interesting discussions going.

What Was Israel After?

Excellent analysis by Greg at Begging to Differ responding to claims that the bombing was just a diversion and will not have much effect:

It seems to me that the way one views Israel's attack on Syria correlates roughly with one's opinion of the Bush Doctrine. People who accept this as a legitimate way to fight terrorist threats will probably be less bothered by Israel's willingness to go beyond its borders to attack suspected sights. But members of the Bush Lied crew will probably also suspect that Israel acted rashly and without a factual basis.

It's an interesting argument. Reversing the history, I wonder how people compare the Israeli raid on Iraq's nuclear reactor in 1981 to the Bush Doctrine/invasion of Iraq and to the recent attack on Syrian soil.

Rising Powers

Though I was sad to see the U.S. lose in its semi-final game on Sunday, this women's World Cup has displayed a broad base of talent in countries that have not been strutting their stuff in recent years. Sweden and Canada in particular have played outstanding soccer, and I'll be rooting for Sweden in the finals this coming Sunday. I've always enjoyed women's soccer better (ever since many of my high school friends played on our school team), and have been impressed by the efforts in this tournament. I just wish they still had a league to come back to.

Interesting CrimPro Cases

The Supreme Court will be hearing a couple of criminal procedure cases this December:

One new Miranda case, Missouri v. Seibert, No. 02-371, examines an increasingly popular tactic by which the police first get a statement without Miranda warnings and then administer the warnings and obtain a confession. The issue is whether such a confession, even if preceded by a "voluntary" waiver of a suspect's Miranda rights, can be used as evidence when the original failure to give the warnings was deliberate.

The question in the second Miranda case, United States v. Patane, No. 02-1183, is whether physical evidence discovered as a "fruit" of a Miranda violation, a gun in this case, can be introduced at trial. Earlier Supreme Court decisions had permitted this type of evidence to be used under some circumstances, but lower courts are finding those decisions questionable in light of the justices' subsequent clarification in the Dickerson case that the Miranda warnings are constitutionally required rather than just a "prophylactic" device to safeguard the Fifth Amendment right against compelled self incrimination.

It'll be interesting to see where this court's criminal procedure jurisprudence is headed.


I've viewed the first 8 episodes from the first season of 24 and am aching for the next discs to arrive from Netflix. Absolutely stunning television, particularly when viewed episode after episode without commercials. Now I'm quite prepared to say that it's better than The Sopranos, but it's still damn good. Highly recommended to any who missed it during its broadcast run.

The Upside

Ok, ok, so interviewing does have its benefits.

4 callbacks in 2 days last week, 21 interviews total. Hope at least one offer is forthcoming. I've got two more this Thursday and that will probably be it for me. I just want it to be over. If the least prestigious firm I applied to had offered me a job on September 1, I would have taken it and avoided this whole process. Alas, I have faith that the end is near.

But enough whining from me, how are all of you?