John Marshall by Jean Edward Smith

smith_marshall.jpgIf Franklin Roosevelt is the undisputed champion of federal power in the last century, his 19th-century counterpart is surely John Marshall. It is fitting then, that a decade before Jean Edward Smith wrote his magisterial FDR (reviewed here), he devoted his scholarly attention to Marshall, the fourth, and greatest, Chief Justice of the United States.

Law students spend a disproportionate amount of their time reading the Supreme Court opinions of Marshall, which set not only the framework of commercial and constitutional law, but also determined the power and purview of the federal judiciary as well as the hotly-contested relationship between the federal and state governments. His decisions read like a laundry list of legal landmarks: Marbury v. Madison, Fletcher v. Peck, McCullouch v. Maryland, Dartmouth College v. Woodward, and Gibbons v. Ogden, just to name a few.

It was of some surprise then, to find that more than half of the 524 pages in Smith's John Marshall are dedicated to his life before taking the bench. Despite his youth relative to other Founding Fathers, Marshall managed to have a hand in most important events in our country's early life. The eldest of Thomas Marshall's fifteen children, his childhood was largely comfortable, though not luxurious. His father worked as a surveyor for Lord Fairfax (as did George Washington) and sought success in the west, eventually settling in the Kentucky frontier, then part of Virginia. Thomas had experience in the state militia, and when the Virginia convention authorized minutemen battalions in 1775, he was appointed as the Culpeper battalion's major. His son followed, and was commissioned a first lieutenant. When war came, both men saw their share of action, starting with an early skirmish in December 1775 at Norfolk:

"The alarm was immediately given," Marshall reported, "and, as is the practice with raw troops, the bravest [of the Americans] rushed to the works, where, regardless of order, they kept up a heavy fire on the front of the British column." At the same time, Colonel Stevens led the Culpeper riflemen onto some high ground to the left of the causeway, from which they sent a withering cross fire into the grenadiers' flank. Marshall's father, Major Thomas Marshall, assumed overall command of the troops at the breastworks; Lieutenant John Marshall was with the riflemen on the flank. Colonel Woodford subsequently reported to the Virginia convention that "perhaps a hotter fire never happened, or a greater carnage, for the number of troops" engaged.

The Marshalls also saw action at Brandywine and Germantown, and spent that famous winter at Valley Forge. John Marshall's experiences in the war, and the resulting attachments he felt to the nation, convinced him of the need for a strong federal government. After the war, Marshall studied law at the College of William and Mary, built a nascent legal practice in Richmond, and was elected to the Virginia House of Delegates. As the newly independent country struggled under the limitations of the Articles of Confederation, Marshall supported the Constitutional Convention's effort to strengthen the union:

His pragmatic nature resisted the adoption of a large number of a priori principles, but on four issues his views were firm. He believed in a strong central government, the supremacy of the constitution, the necessity for an independent judiciary, and the unalienable right to possess, enjoy, and augment private property. Marshall's views were consistent with the major currents of eighteenth century American thought. Locke, Blackstone, Hume, and Montesquieu--the writers most often cited in postcolonial America--stressed that the purpose of government was to protect private rights, especially the right to property, and that the tyranny of the majority was as much to be feared as the tyranny of the crown.

As the states began to consider the newly proposed Constitution, it became clear that Virginia would play the deciding role. By the time the question came to Virginia, eight states had ratified. One more was needed, and all eyes looked to the Old Dominion. Marshall maneuvered to ensure a convention was called, and that the enabling motion did not explicitly authorize amendments (as favored by anti-federalists like Patrick Henry, knowing it would scuttle the whole project if each state offered its own changes). An all-star cast was called to Richmond: Marshall, Henry, James Madison, James Monroe, George Mason, George Wythe, Edmund Pendleton, and more. From the start, the outcome was uncertain:

Opposite Henry, James Madison anchored the nationalist end of the spectrum. His tough-minded, interest-based view of politics defined the central thrust of the Constitution. "Let ambition counter ambition," he wrote in Federalist 51, and his advocacy of ratification without amendments was uncompromising. "The question on which the proposed Constitution must turn," he wrote to Edmund Pendleton, "is the simple one whether the Union shall or shall not be continued. There is in my opinion no middle ground to be taken." Marshall, who admired both Henry and Madison, captured the essence of their historic confrontation. Patrick Henry was much more than an orator, said Marshall. He was "a learned lawyer, a most accurate thinker, and a profound reasoner. If I were called uopn to say who of all the men I have known had the greatest power to convince, I should say Mr. Madison, while Mr. Henry had without doubt the greatest power to persuade."

Even in the crowd of luminaries, Marshall's incisive legal reasoning proved noteworthy; it may be that the nationalist views he would espouse from the bench got finely-honed during arguments with this company of giants. The federalists won, if only just (ratification passed 89-79), at which point Marshall was appointed to a committee charged with preparing proposed amendments. These "became the bases for the First, Third, Fourth, Fifth, and Eighth Amendments to the Constitution." Despite the heat and vigor with which the debate was joined, Marshall managed to remain on good terms with his political opponents, a skill he retained and put to good use throughout his career. In fact, he would even join forces with Henry as co-counsel on several high profile cases in the years ahead.

Marshall returned to the Richmond bar and quickly rose to prominence as one of the commonwealth's finest solicitors. The 1790s were a tumultuous time, and the legal arena was no different. A new country faces new issues and requires new precedents. The Virginia bar was beset with disputes, with cases especially numerous regarding land titles, debt repayments, and admiralty seizures. He remained politically active, and was amongst the most notable supporters of John Adams' policy of moderate neutrality (attacked by both Jefferson's Republicans and Hamilton's High Federalists). As a result of the high esteem in which Marshall was held, he was designated as one of the three peace emissaries sent to France to attempt to prevent open war, the mission that resulted in the infamous XYZ Affair. Marshall would subsequently serve in Congress and as Secretary of State before being nominated to the Supreme Court by the lame-duck Adams after John Jay declined to re-take the office:

Adam's decision came as a surprise, especially to Marshall. In retrospect, however, the choice appears inevitable. Apart from his devotion to the president, Marshall was one of the few Federalists to command the respect of both parties and one of the few who would bring to the Court both legislative and executive experience. He had represented the United States abroad with distinction, and, with the possible exception of Adams himself, no Federalist stood higher in public esteem. In addition, Marshall's legal skills were superb. His analytical mind and his pragmatic bent had made him one of Adams's most trusted colleagues, and his personal integrity was unchallenged.

Smith spends the latter half of the book examining in great detail the 34 years of Marshall's famed chief justiceship. He covers the shifting make-up of the court and the recurring struggle with radical Republicans to establish the independence of the judiciary. He also highlights the collegial atmosphere promoted by Marshall, resulting in a new practice of issuing an "Opinion of the Court" (usually unanimous and usually authored by Marshall) rather than individual, seriatim opinions. This practice continued through Marshall's tenure even as Republican executives filled the court with their own nominees (a great frustration to Jefferson, not dissimilar to that felt by Republican presidents in our own time). Smith also does a tremendous job discussing each term's important cases. He provides both the factual and procedural background to the key cases, examines the legal issues at stake, the arguments presented by counsel, and parses the court's opinions. Smith has a knack for discussing sophisticated legal issues in a layperson-friendly manner, a skill he also rightly credits Marshall with mastering.

One of the book's few real weaknesses is the dearth of information about Marshall's non-professional life, a stark contrast with Smith's thorough treatment of Roosevelt. Marshall appears to have been a devoted husband, particularly considering his wife's long years of invalidity, but there are few insights beyond that. This does not appear to be Smith's fault, however. Unlike many of his contemporaries who left prodigious records to be mined by historians, Marshall "saved none of his letters or memoranda and systematically destroyed his files at regular intervals."

If such records had survived, there is no doubt Smith would have cited them. As with FDR, Smith has demonstrated his scholarly chops with extensive endnotes (151 pages for 524 pages of text) and a 30-page bibliography. Smith put this research to good use, crafting a biography worthy of American's finest jurist. Marshall deserves a place in history for his non-judicial accomplishments; for his efforts on the bench he belongs on the shortlist of those most responsible for the nation's survival, growth, and prosperity.

Baze Effects

Orin Kerr over at the Conspiracy thinks the plurality opinion's new standard is unlikely to increase litigation, despite the fears of Justice Thomas (and the hopes of death penalty critics):

The requirement that the defendant prove a specific alternative should effectively keep Baze from generating endless litigation. It will force defendants to argue a very specific alternative: Don't kill me like that, kill me like this. If a state wants to litigate the issue and loses, the court will not enjoin the execution but rather will just order the state to execute the person in the different but also "feasible" and "readily implemented" way the defendant has proposed. And the state always has the option of eliminating the issue as a delay tactic: It can always cut off the litigation by just agreeing to the defendant's alternative method of execution.

I think this is a quite plausible prediction as to the future of Eighth Amendment death penalty litigation. The current precedent now says two things without question: 1) the death penalty is constitutional; and 2) so is lethal injection, until a death row inmate can prove there is a substantially more humane method of execution (at which point, he will be executed via that method).

Now of course this standard does not answer all of Justice Thomas' objections, but it does a pretty good job of halting "cruel and unusual" challenges to the death penalty for the foreseeable future without relying upon 18th century views regarding executions.

Baze v. Reeds, Part 2

More than anything else, I think this case (and Eighth Amendment jurisprudence generally) demonstrates how varied the approaches are amongst the nine justices on the bench today. While we have a more conservative bench than we had ten, twenty, or thirty years ago, the conservative justices are not taking the same paths up the mountain.

That is demonstrably clear in this case. The plurality opinion, written by the Chief Justice and joined by Justices Kennedy and Alito, upholds Kentucky's use of lethal injection, but holds (as Justice Alito summarizes in his concurrence) that "a State's refusal to change its method [of execution] can be viewed as 'cruel and unusual' under the Eighth Amendment" if, "without a legitimate penological justification," the State rejects an alternative method that is "feasible" and "readily" available and that would "significantly reduce a substantial risk of severe pain."

Justice Thomas, in an opinion joined by Justice Scalia, criticizes both the plurality and the dissent from an originalist perspective:

I write separately because I cannot subscribe to the plurality opinion's formulation of the governing standard... This standard--along with petitioners' proposed "unnecessary risk" standard and the dissent's "untoward risk" standard, post, at 2--finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve.

While Justice Thomas' brushing aside of the petitioners' and dissent's standards is expected, I'm sure it will come as a surprise to those who supported the nominations of Chief Justice Roberts and Justice Alito to realize they were supporting nominees who would "inject[] the Court into matters it has no institutional capacity to resolve." Yet apparently that is just what has happened.

Baze v. Rees, Part 1

I'll have more to say once I've read the opinions in Baze v. Rees, but this is a heck of a splinter on a death penalty case:

ROBERTS, C. J., announced the judgment of the Court and delivered an opinion, in which KENNEDY and ALITO, JJ., joined. ALITO, J., filed a concurring opinion. STEVENS, J., filed an opinion concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. BREYER, J., filed an opinion concurring in the judgment. GINSBURG, J., filed a dissenting opinion, in which SOUTER, J., joined.

Something is awry with the Court's Eighth Amendment jurisprudence, and the fact that we have seven opinions from nine justices is a good indication of it.

Hamdan and Article 3

There's a lot of digital ink being spilled over today's Hamdan decision, understandably enough, and I think the most interesting element of the case is the Supreme Court's holding that Common Article 3 of the Geneva Conventions applies to Al Qaeda, or at least to Hamdan (who was captured by our Afghan allies in Afghanistan).

We talked a good bit about the Geneva Conventions at the JAG School, and it was considered particularly important that we be able to identify the types of conflicts when the conventions do and do not apply. Suffice it to say that the War on Terror has made this an extremely difficult project, though I was definitely left with the impression that the great majority of instructors were convinced that at least Common Article 3 should apply to the Al Qaeda detainees.

Stuart Benjamin at the Volokh Conspiracy has a good post pointing out that even the dissenters don't argue that this is the wrong interpretation, merely that the court should defer to the President's own plausible interpretation.

Many others are discussing the merits of this issue, but I want to focus on a related tangent. In comments to Benjamin's post, I pointed to an even more vexing question that no one at the JAG School could answer to their own satisfaction.

While it might be hard at first glance to see how the strict language of common Article 3 ("armed conflict not of an international character") applies to Al Qaeda, it is at least as confusing to understand how the administration continues to hold, which it does, that the full Geneva conventions still apply to the conflict in Iraq. Here's the relevant text of Article 2:

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

In Iraq, whom is the conflict between? I think it is hard to argue that there is still an armed conflict between two or more "High Contracting Parties" as the strict language of the convention requires. Furthermore, we have been quite clear that the occupation of Iraq is now over, so the conventions don't sneak in that way either. What basis is left for application of Article 2? It is a question posed by many and satisfactorily answered by none.

What the Withdrawal Really Tells Us

Look, I'm glad that Harriet Miers withdrew her name. I really am. She was not qualified, and would have provided little of the intellectual leadership that the court has been lacking during its period of domination by the Kennedy/O'Connor fifth vote. That said, I think anyone who has been paying attention to this nomination knows that her withdrawal has nothing to do with Senate demands for executive branch documents.

Instead, I think this withdrawal, and the rebellion that caused it, expose the conservative judicial movement for what it really amounts to in the end: a movement to overturn Roe v. Wade at all costs. Sure, Miers is not qualified. She never was. But it was not until the speeches came out yesterday, with their implicit sympathy for Casey/Roe, that the pressure on the WH heated up enough to force her withdrawal.

Let me qualify that by saying that I don't think every individual conservative is so result-oriented. I am quite sure there are many individuals who do their best to stick to a more result-neutral approach to supporting judicial nominees, whether it be deference to the executive, non-ideological qualifications, or the like. But I think the goal of overturning Roe v. Wade is the glue that holds the movement together, that unites those whose philosophies are driven by Catholic or evangelical religious faith and those who are motivated by strict constructionism, originalism, or any other ostensibly result-neutral philosophy. It is that results-oriented glue that largely keeps me out of the conservative judicial movement, despite my attraction to much of the jurisprudential philosophy produced by conservative legal scholars.

I've also previously been quite frustrated at Democratic obstructionism and the attempts to focus on the judicial philosophy of Bush nominees. I don't think litmus tests are appropriate. I think a party that has won both chambers of Congress and the White House has the right to nominate qualified individuals with conservative jurisprudential views without facing filibusters from the Democrats.

But I think the conversative movement has now made clear that for them, just as for the Senate Democrats, ideology is a perfectly acceptable reason to oppose a nomination. No one has the high ground any longer, if they ever did. That bodes ill for the future of judicial nominations, and that is a loss for us all.

I Passed

It was bad enough that the Virginia Board of Bar Examiners announced they would post the July bar exam results online on Yom Kippur, likely forcing observant Jews to choose between attending services and rapidly hitting the refresh button like the rest of us . But to wait until 1:15pm to actually post those results, when they just had to know everyone would start checking at dawn... well that was just cruel (not to mention the fact that as I write this, the list only goes through last names starting with S. I'd be really mad if my name came after that).

Anyhow, I passed. Huzzah. Alas, the girl who sat next to me did not. Nor did 403 others out of the 1,367 who took it, for a rather low passage rate of 70.4%.

UPDATE: A friend emailed to ask whether 70% is really all that low, especially since it includes people who are re-taking the exam (and are much more likely to fail than first-time takers). The answer is no, 70% is not all that low relative to other states or to Virginia historically. It is rather low, however, compared to any other testing situation I have ever been in. It is just hard for me to grasp that of all those people sitting around me in July, three out every ten did not pass.

Bush Didn't Want a Scalia

Many conservatives are up in arms over the Miers nomination because they consider it a betrayal, or at least a failure to follow through on a promise to nominate someone in the mold of Scalia. I don't have any special way of knowing what the President was really looking for when he chose Chief Justice Robert and now Harriett Miers, but I have some suspicions. Many have pointed to his personal knowledge of candidates as a common link, since Bush has known Roberts since he was first (unsuccessfully) nominated to the D.C. Circuit by Bush's father and working in the Solicitor General's office. And his long connection with Miers has been much lauded and criticized.

Another commonality, and I suspect an equally important one, is the likelihood that both Roberts and Miers favor a strong deference to the executive branch in matters of national security. In cases like Hamdan v. Rumsfeld, Roberts has given sufficient signs to the administration that he is not disposed to limiting the administration's efforts in the war on terror. Assuredly, Miers' work in the White House Counsel's office has given the President similar comfort.

It would not be hard to believe that the President feels the war on terror (including, in his calculus, Iraq) is supremely important, perhaps even the "issue of our times," and thus should drive these nominations. It certainly seemed like much of the 2004 campaign was driven by the notion that Bush was the better choice for leading the war effort. If so, then like FDR and his pro-New Deal justices, Bush may be pushing nominations that focus on the issues important to him, with less regard for their overall philosophies or their potential effect on as yet unseen issues (like the incorporation and civil liberties revolutions of the post-WWII era).

In this light, Bush has a different set of priorities than quite a few of his vocal supporters now making waves at places like Confirm Them. For many of them, judicial nominations are not about the war on terror, nor taxes, nor corporate regulations. They are about abortion. Surely they would like a judge who supports the President's other priorities, but most of all they want one who will vote to overturn Roe. To them, that's what "like Scalia" really means.

But I will suggest that perhaps Bush is no longer so enamored with Scalia. I don't know why I forgot this until now, but I happened to be in the courtroom last June when the Supreme Court handed down Hamdi. v. Rumsfeld. This was the case of the U.S. citizen alleged to have been caught fighting for the Taliban in Afghanistan, and held without trial at a naval brig in Charleston, S.C. The court held that although Congress authorized the detention, Hamdi's citizenship meant he was entitled to a meaningful factual review before a neutral decisionmaker. Last October, Hamdi was freed and returned to Saudi Arabia.

Justice O'Connor wrote the majority decision and was joined by the Chief Justice, Justice Kennedy, and Justice Breyer. Justices Souter and Ginsburg concluded the detention was unauthorized, but voted with the plurality to remand for a factual inquiry.

Justice Thomas filed a true dissent, arguing that deference to the government's war powers should prevent the court from second-guessing the administration's decisions.

What is curious, however, is the opinion written by Justice Scalia. It is labelled a dissent, and thus the case if often cited as a 6-3 decision with Scalia and Thomas dissenting. Actually reading the decision, which was joined by Justice Stevens, shows that Scalia and Thomas could not be further apart on this. Scalia actually dissented because he did not think the plurality opinion went far enough in its criticism of the administration position:

The Founders well understood the difficult tradeoff between safety and freedom. “Safety from external danger,” Hamilton declared,

“is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.

When the decision was announced in the court that day, several of the justice spoke from the bench. They did not read their opinions, but rather gave prepared summaries. Justice Scalia was quite passionate and visibly outraged by the administration's attempt to hold a U.S. citizen in the United States withou trial. He argued that the only way the Constitution allowed for this was by suspension of the writ of habeas corpus, an action we can be sure President Bush is not interested in taking.

This may not have even crossed the mind of the President or his nomination advisers. But it may have, and it stands as pretty good evidence of the unpredictabilities of nominating a truly independent, intellectual conservative who aims to be more committed to a particular judicial philosophy than to any policy-driven outcome. I would be surprised if Bush did not take note of this, and perhaps adjust his committment to nominating "another Scalia."

Miers... or the Other Two

In an overall very interesting article about conservative resistance to the Miers nomination, the Christian Science Monitor has an especially interesting paragraph about the White House floating the names of potential nominees to Paul Weyrich, the influential head of a conservative think tank in Washington:

In the run-up to this week's announcement, Mr. Weyrich says he and other conservative leaders were given a list of three potential nominees, including Miers, and asked whether they had anything against them. "Based on their records," he had objections for two on the list. But for Miers, "we didn't know anything about her. Nobody knew where she was coming from, so we couldn't tell them anything," he says.

What is most intriguing about this is not that Weyrich was consulted in advance, but that Miers was the least objectionable choice from a conservative perspective. Which begs two questions: 1) who were the other two names, and 2) how can the conservatives calling for Miers to withdraw be so sure that President Bush won't turn around and name one of the other two?

Of all the president's traits that have exasperated Democrats for the past five years, near the top of the list must be his stubborness or resoluteness (depending on your perspective). While many unhappy conservatives are shouting that the White House has not yet recognized the depth of their displeasure, it might be worth suggesting that they have not yet come to terms with just how unflappable this administration can be in the face of overwhelming pressure to reverse course.

Miers and Elite Law Schools

Over at Originalisms, Tim Shuman gives what I think is unshakeable evidence that whatever the basis of conservative opposition to the Miers nomination may be, it is not law school snobbishness:

In the end, the depression, disappointment, and demoralization of many conservatives (especially those with legal training) is not about snobbish elitism over Miers's education at SMU. As Power Line has pointed out, the list of potential nominees come from diverse law schools: Karen Williams went to the University of South Carolina; Priscilla Owen, to Baylor University; Maura Corrigan, to the University of Detroit; Alice Batchelder, to the University of Akron.

I would add that Janice Rogers Brown went to UCLA; Edith Jones went to the University of Texas; and Edith Clement went to Tulane.

Now we could argue that some of these schools are more elite than others, but that is beside the point. What separates every single one of the candidates I just named from Harriet Miers is that each has some sort of judicial or appellate experience. Each one has conservative appellate credentials that we people who are not President Bush can observe, so we are left with more to rely on than "trust me."

James Joyner at Outside the Beltway has a post on the related elite/non-elite debate that seems to have erupted among conservatives. He makes an interesting point:

Conservatives love to make fun of "elites" but we are not without our own. Indeed, until the incorporation of Evangelical Christians into the movement in the 1970s and 1980s, conservatism almost certainly had more elites as a percentage of the movement than did liberalism. At least the George Wills, William F. Buckleys, and Bill Kristols of the world recognize that they are themselves part of an elite and eschew use of that rhetoric. Others, including Ann Coulter, Laura Ingraham, and Bill O'Reilly don't see that irony.

Indeed, having attended an Ivy League college and what most would consider an "elite" law school, I am finding this whole debate pretty fascinating. I became good friends with many members of what could only be called the "conservative elite," having rather "conservative" jurisprudential views of my own, and have always been struck by the elite education of many leaders of a conservative movement that oftens decries liberal elitism regarding higher education. And it is not as if Republicans have been been putting country bumpkins on the Supreme Court. Souter went Harvard/Harvard, Thomas went Holy Cross/Yale, Kennedy went Stanford/Harvard, Scalia went Georgetown/Harvard, and O'Connor and Rehnquist both went Stanford/Stanford.

I for one don't think that where someone went to law school should be a big factor in a nomination, especially when one notes that the only justice to attend my law school was perhaps the most awful, bigoted man ever to sit on the court. But it has been interesting to watch this aspect of the Miers nomination debate.

The Parable of Publius

Publius at Legal Fiction has written an apt faux parable entitled "The Parable of Social Conservative and Justice Luttig." Here's a taste:

And when Social Conservative was ninety years old and nine, the BUSH appeared to him, and said unto him, “I am the Almighty Bush; walk with me and vote for me this fall.” Normally, Social Conservative would have fallen on his face and given thanks to the Bush. But not today.

“Why should I vote for thee?”

“You must trust me my faithful follower,” the Bush replied.

“I have trusted thee before. I have wandered in this desert for years and have been thirsty. And you have said, ‘vote for me and I will give you water.’ And you said, ‘there is water’ and I looked. But there was no water. Only Arlen Specter with a Chairman’s crown upon his head.”

“You must trust me my faithful follower.”

Publius is painting broad strokes with a blunt instrument (ah, the unsettling tingle of a mixed metaphor), but it's pretty funny nonetheless. There's much more on his site, though my favorite is this part: "But there was not water. Only Arlen Specter." That's rich.

Keeping Your Opinion to Yourself

Remember the last time someone told you should keep your opinion to yourself? Or that you shouldn't vouch for potential mobsters who turn out to be FBI agents? It looks like Andrews Kurth LLP could have used similar advice:

Writing an opinion letter could cost Andrews Kurth more than $90 million.

Four stock purchasers allege that Andrews Kurth assured them that a stock sale by Motient Corp., a wireless service provider, did not violate the corporation's governing documents, when in fact the certificate of incorporation prohibited the sale.

Dallas-based investment manager Highland Capital Management and three entities it manages (the Highland entities) sued Houston-based Andrews Kurth on Aug. 22 in Dallas' 101st District Court. In their original petition in Highland Crusader Offshore Partners, et al. v. Andrews Kurth, the plaintiffs allege they relied on an April 15 opinion letter provided by Andrews Kurth when they bought about $90 million worth of stock from Motient in April.

According to the opinion letter, Andrews Kurth acted as special counsel to Motient, a Delaware corporation, in connection with the issuance and sale of 408,500 shares of the company's stock.

"That opinion letter indicated, among other things, that the company had the power to issue the stock and that the stock was properly issued. However, since that time plaintiffs discovered that the stock was void because it was issued in violation of Motient's certificate of incorporation," the plaintiffs allege in the petition.

Well, their motto is "Straight Talk is Good Business," since after all "Straight talk leads to smart choices, fast action and successful results." Except maybe this one time. A cautionary tale for law firms and general counsels everywhere, even if this suit, like so many others alleging professional liability, is without much merit.

Justice Roberts

A colleague who generally shares my centrism and knows Judge Roberts personally says he is a "classy guy and a first-rate intellect" and that this is a "great choice." All in all, I have to agree.

Whatever political or constitutional views one holds, I think it was unrealistic and unfair to expect the President not to nominate a conservative justice. It is a president's pregorative to nominate who he wants, subject only to the advice and consent power granted to the Senate (which I think should be exercised robustly, but not obstructively).

Republicans won the White House and the Senate, and there are some spoils that go with it. There were a lot of names being thrown around the past few weeks (and today in particular). Some of them were probably on the list based more on reasons of partisanship, loyalty, or electoral machinations than on finding the most qualified possible individual.

In the end, worthier considerations prevailed. To my mind, an intellectually rigorous and honest conservative is the best case scenario for everyone.

Well done, Mr. President.

District Court Divisions

Here's a curiosity. Taking a look at a map of the federal circuits, it seems like there are some pretty strange disparities in the number of districts into which states are divided. I don't know if it is a matter of population shifts outpacing boundary drawing, differences in how the population is spread throughout each state, or some crop circle-like alien disturbance.

But there is something unusual about states like Colorado (4.6m pop.), Minnesota (5.1m), Arizona (5.7m), and Massachusetts (6.1m) having only one statewide district, while Oklahoma (3.5m), Alabama (4.5m) and Tennessee (5.9m) each have three. Even West Virginia (1.8m), Arkansas (2.7m), and Iowa (2.9m) have two districts. What the heck is going on?

UPDATE: Will Baude emailed to let me know he recently pondered the same question and got some interesting responses.


SC to Review Solomon Amendment

I have an exam starting in about ten minutes, so I don't have a lot of time to comment, but this is an important (if unsurprising) development in the Solomon Amendment litigation:

The Supreme Court said Monday it will consider whether colleges and universities may bar military recruiters from their campuses without fear of losing federal funds.

Justices will review a lower court ruling in favor of law schools that restricted recruiters to protest of the Pentagon's policy of excluding openly gay people from military service.

That ruling, by the Philadelphia-based 3rd U.S. Circuit Court of Appeals, invalidated a 1994 federal law requiring law schools to give the military full access or lose their federal funding. The appeals court ruled the law infringed on law schools' free speech rights.

The Supreme Court will hear the case during its next term, which begins in October.

The law, known as the Solomon Amendment, has been controversial for law schools that have nondiscrimination policies barring any recruiter -- government or private -- from campus if the organization unfairly bases hiring on race, gender or sexual orientation.

And there you have it.

DeLay Attacks Kennedy

In a rather rare attack on a named Supreme Court justice, House Majority Leader Tom DeLay has sharply criticized Justice Anthony Kennedy:

The No. 2 Republican in the House has been openly critical of the federal courts since they refused to order the reinsertion of Schiavo's feeding tube. And he pointed to Kennedy as an example of Republican members of the Supreme Court who were activist and isolated.

"Absolutely. We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous," DeLay told Fox News Radio on Tuesday. "And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous."

Lexis-Nexis and Westlaw, those bastions of judicial activism! If only DeLay could see the so-called "training sessions" offered in the computer labs of my law school! The unbridled indoctrination is outrageous!

Blockbuster Scam

I thought it was a scam the first time I saw Blockbuster's new "no late fee" policy. And the media bought into the scam, big time. Now hopefully they are going to give equal coverage to the lawsuits attacking Blockbuster's scam:

New Jersey Attorney General Peter Harvey sued Blockbuster Inc. Friday, claiming the video rental chain is deceiving customers with its new 'No More Late Fees' rental policy.

The lawsuit accused the movie rental chain of deceptive advertising and violating the state's consumer fraud laws.

"Blockbuster boldly announced its 'No More Late Fees' policy, but has not told customers about the big fees they are charged if they keep videos or games for more than a week after they are due," the attorney general said in a statement.

That about sums it up, though the story fails to take notice of the media's total failure to raise these questions when they first reported Blockbuster's move.

Causing an 80-Car Pileup

Amazing that all of this happened because one truck was speeding:

A tractor-trailer traveling an estimated 55 mph in whiteout conditions jackknifed across Interstate 80, setting off a chain-reaction pileup that wrecked up to 80 vehicles.

No deaths or critical injuries were reported, but the Sunday morning crash blocked the westbound lanes in western Pennsylvania for more than eight hours, state police said.

State police Trooper Ted Hunt said he was attending to disabled vehicles on the side of the highway in blowing snow when he heard a truck quickly pull into the passing lane and jackknife. He said two other rigs skidded sideways, blocking both lanes, and oncoming vehicles began crashing into them.

Hunt said the truck driver who started the crash was cited for driving at an unsafe speed.

Here's a question for those who've taken torts or insurance law (and understood them): is this truck driver and/or his insurance company liable for all of the damage in this pileup? Assume that everyone else was driving safely and there is no intervening fault between this truck driver's actions and the last car damaged. Can it possibly be that he is responsible for all the costs? If not, who bears the cost?

UPDATE: 1L Will Baude e-mailed his thoughts:

The doctrine of foreseeability limits this, does it not? I've never heard of an 80-car pileup before, especially without intervening fault, so under the same logic of Adams v. Morgan (that the truly novel is rarely the foreseeable) I can't imagine that full liability would fall to the truck driver.

In reality, a court of common law could probably dig up some intervening fault, whatever the facts. In Drivers' Ed we were taught about what to do when a truck had jacknifed across the road (namely, calmly swerve off into the snowbanks) and presumably many of the drivers here didn't.

My tort knowledge is so limited that I don't even know when or where foreseeability applies. Is it only in intentional torts where you're responsible for truly bizarre outcomes (like you shove someone, but then they slip and fall down some stairs, whereupon they are soaked in kerosene and ignited)? Or am I making that up as well? Sure is a good thing I came to law school, I've obviously learned (and retained) so much.

UPDATE II: Another e-mailed response suggests Mr. Baude might need to study a little harder for his upcoming torts exam:

Speaking as someone who's not only taken tort law but has been practicing tort law for a little while, I can say that in the absence of any fault on the part of anyone else involved in the pileup, the truck driver is responsible for all the property damage and personal injury caused by the unfortunate I-90 incident. Foreseeability's not about being able to anticipate the magnitude of the harm that can flow from a certain course of action. It's about being able to anticipate the type of harm that can flow from a certain course of action. It is entirely foreseeable that the unsafe operation of a truck can cause collisions with other vehicles. Leaving aside for the moment issues of potential contributory and/or comparative negligence on the part of the other drivers (and the concomitant causation issues), the number of vehicles involved isn't really an operative factor in a foreseeability analysis. Look at it this way -- what if the only other vehicle involved in the accident had been a bus occupied by 80 people? Would the fact that 80 people were injured in the accident (as opposed to the two to six people you'd expect to find in an ordinary passenger vehicle) affect your foreseeability analysis? If so, on what basis?

Oh, and as for the insurance company, don't feel too bad. The insurance company's liability won't extend beyond the limits of its policy. The policy limits, however, are unlikely to be sufficient to compensate all the people who suffered injuries or other damages. So, if this were a bar exam question, and you were asked what the insurance company should do, this is the part where you'd remember Civil Rule 22 and the notion of interpleader.

This is all making me wish I'd had a torts professor more motivated to actually teach torts.

In Brief Defense of Justice Thomas

I don't know how it is that I so often end up defending Justice Clarence Thomas, but I think Senator Harry Reid's latest comments are way out of line:

Incoming Senate Minority Leader Harry Reid on Sunday had harsh words for Supreme Court Justice Clarence Thomas.

When asked to comment on Thomas as a possible replacement for Chief Justice William Rehnquist, Reid told NBC's "Meet the Press": "I think that he has been an embarrassment to the Supreme Court.

"I think that his opinions are poorly written. I just don't think that he's done a good job as a Supreme Court justice."

The first thing that ought to be clear to anyone is that Reid's attacks have little to do with the intellectual or literary quality of Thomas' opinions. Even if Reid took the time to read and understand the issues underlying the cases in which Thomas has written opinions, a doubtful prospect, they are of course largely drafted by clerks drawn from the same pool of genius law students as all the other justices. Sure, Thomas' opinions often lack the rhetorical flourish of a Scalia or a Brennan, but there is no way to throw that label at Thomas yet exclude Kennedy or Breyer. Likewise, Thomas brings just as much principled jurisprudence to the bench as any other current justice. Of course, I still think it is not enough, but that is a brush with which to paint the whole Court.

I don't think it much of a stretch to say that Reid is just grasping at reasons to attack Thomas, and lay the groundwork for an opposition to Thomas as chief justice. Yet at the same time he leaves the door open for Scalia:

"I cannot dispute the fact, as I have said, that this is one smart guy," Reid said of Scalia. "And I disagree with many of the results that he arrives at, but his reasons for arriving at those results are very hard to dispute."

So why attack Thomas so much more harshly? I suppose Reid might really distinguish between Thomas and Scalia's performance and jurisprudence, and favor the latter. But I doubt it. Here's what I think is going on. First, there are a whole bunch of Senate Democrats who voted against Thomas in the first place. So a lot of this rhetoric has more to do with his qualifications for being on the Supreme Court at all, rather that how he's done since he got there. Moreover, Clarence Thomas is 56, and Antonin Scalia is 68. To a Democrat like Harry Reid, that's a likelihood that Bush's chief justice would reign for an additional 12 years.

Let's also not forget to mention how convenient it is that Thomas usually gets criticized from the left for being TOO much like Scalia... now he's being criticized for being an insufficient clone of his elder conservative. There are, in fact, plenty of ways to distinguish the two of them, but I don't see any way to both praise Scalia AND call Justice Thomas an "embarrassment to the Supreme Court."

That's awfully harsh rhetoric, beyond the bounds of normal partisan banter, and I don't think anything Justice Thomas has done on the bench merits anything like that sort of condemnation.

Third Circuit Strikes Down Solomon Amendment

I have not yet gotten a copy of the holding to assess the decision fully, but I must admit surprise that the Third Circuit has struck down the Solomon Amendment:

A federal appeals court barred the government Monday from blocking funds to colleges and universities that deny access to military recruiters because of the Pentagon's policy banning openly gay men and women.

In a 2-1 ruling, a three-judge panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia, Pennsylvania, said a 10-year-old federal law that allows the government to block such funds violates the schools' First Amendment right to prohibit on-campus recruiting in response to the Pentagon policy.

The Justice Department promptly criticized the ruling, but it did not immediately announce plans to appeal.

The case challenging the law known as the Solomon Amendment was brought by more than a dozen law schools but applies to all institutions of higher learning.

First Amendment law is such a mess that I'm not sure it is possible to claim this case had to come out one way or the other. I can say that I have long held, and still hold, a hostility towards the law schools themselves for using their anti-discrimination policy in this way. It is the same argument which forced my Harvard colleagues and I to attend ROTC at MIT, rather than our alma mater. As I've said before:

I would like to register my continued discontent with the hypocritical policy of these schools that desire to take the federal government's money but refuse to allow its military recruiters on campus. If a university wants to take a principled stand and refuse these recruiters, let them bear the consequences of the action. But to want it both ways, to be able to exclude the recruiters, put up roadblocks preventing students from seeking military service, all while taking money from the same Congress responsible for "Don't Ask, Don't Tell"? That I cannot accept.

I am not an advocate for exclusion of gays. Were I a congressman, I would vote for full inclusion. If I were a general on the Joint Chiefs of Staff, I would urge the same. But I cannot support the policies of universities that place the entire cost of the policy on the students who are interested in serving their country by becoming officers in the military.

When NOT To Call the Police

I love this story:

A father's attempt to teach his daughter a lesson about drinking backfired when the teen led police to a stash of drugs and weapons inside their home.

Kevin Winston, 46, called police at 2:45 a.m. Friday after his 16-year-old daughter came home drunk and unruly. When police arrived, however, the girl told them she feared for her safety because her father stored drugs and weapons in the home.

The girl led officers to a crawl space above the ceiling where they found four semiautomatic guns and more than 600 vials of cocaine.

Winston was charged with numerous weapons and drug charges. His five daughters were placed in the custody of a relative.

"He called us on her and ended up getting locked up himself," said Newark Police Director Anthony Ambrose.

It's people like this that make the rest of us feel better about ourselves, right?

Posner on Law Reviews

Law review articles about law review articles are a perennial favorite, and Richard Posner's recent article in Legal Affairs (which has the Virginia Law Review all abuzz with righteous indignation) is more of the same. Unsurprising for those who know me and my feelings about academic legal writing, I agree with almost all of his criticisms. The key paragraphs:

The result of the system of scholarly publication in law is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all. Worse is the effect of these characteristics of law reviews in marginalizing the kind of legal scholarship that student editors can handle well�articles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions. Such articles are of great value to the profession, including its judicial branch, but they are becoming rare, in part because of the fascination of the legal academy with constitutional law, which in fact plays only a small role in the decisions of the lower courts. Law reviews do extensively analyze and criticize the constitutional decisions of the Supreme Court, but the profession, including the judiciary, would benefit from a reorientation of academic attention to lower-court decisions. Not that the Supreme Court isn't the most important court in the United States. But the 80 or so decisions that it renders every year get disproportionate attention compared to the many thousands of decisions rendered by other appellate courts that are much less frequently written about, especially since justices of the Supreme Court are the judges who are least likely to be influenced by critical academic reflection on their work.

I have spoken thus far of the law reviews as publishers of scholarly articles submitted to them. But in addition, of course, they publish articles (usually and misleadingly called "notes" or "comments") written by the members of a law review's staff. The opportunity to publish provides valuable experience. This, plus the rising quality of law students, may explain the enormous increase in the number of law reviews�law schools that used to have just one now often have two and sometimes three or four. My only criticism of the student-written portions of the law reviews is that the students have a propensity to write about "hot" subjects, like partial-birth abortion, gay marriage, and capital punishment, to the neglect of equally important commercial subjects that cry out for informed doctrinal analysis.

But the need for reform centers on law reviews' role in publishing professorial articles, and the biggest obstacle to reform is that the present system provides useful training for law students and signals the quality of particular students to prospective employers. The law review editors tend to be the elite of the student body; prospective employers know this and so the elite students tend to be sorted to the elite firms. This service function of law reviews is so important, and the rapid turnaround of submissions is so valued by law professors, that I do not anticipate fundamental reforms, desirable as they may be in the abstract. Ideally, one would like to see the law schools "take back" their law reviews, assigning editorial responsibilities to members of the faculty. Students would still work and write for the reviews, but they would do so under faculty supervision. Their care in citation checking would be valued by the authors, but the tendency toward poor judgment and thoughtless impositions on authors would be held in check. Doubtless it is too much to hope for such a reform.

I think one could say that Posner directs too much of his attack against students, and not enough against his peers and academic institutions. That said, I don't find much to disagree with.

UPDATE: A colleague from VLR responds:

I would be fine with his article on law reviews if only he didn't come off so arrogantly. The system might be far from perfect, but where does the blame really lie? At some points in his article, it seems like Posner actually places blame on students. It's not our fault that we've inherited this system - if professors wanted to take away control over law reviews, it's not like we could stop them. But Judge Posner is fond of biting" commentary, so we should expect nothing less.

I will also note for the record that under the leadership of our current editor-in-chief, we do try to cut down on footnotes rather than add to them, and we no longer require parentheticals. In addition, we've made an effort to accept shorter pieces.

There you have it. Not a cure-all for the structural defects of the system, but at least a sign that maybe law students are not really the cause of the problem, and thus not the proper target for attack.

Law Students Write Country's New Criminal Code

What an amazing opportunity. A seminar at Penn Law is spending the semester writing the new criminal code for a small, Islamic island:

Professor Paul Robinson's fall seminar at the University of Pennsylvania Law School offered a unique opportunity for the ambitious student: a chance to make law, rather than just study it.

But there was a catch. The students' client would be a regime that has outlawed dissent, jailed pro-democracy demonstrators and been accused by Amnesty International of "endemic torture and unfair trials."

As part of a project sponsored by the United Nations, the class's sole task would be to craft an updated crime code for the Republic of Maldives, an island nation of 278,000 people in the Indian Ocean.

The code was to be based on the Shariah, a body of Islamic law that fundamentalist nations have used to subjugate women, crush free religious expression and impose personal behavior laws criminalizing homosexuality, alcohol consumption and sex outside marriage.

Not everybody is pleased. Daniel Pipes, quite a controversial figure himself, suggests anything based on Shariah, or used to assist the Maldivian government, is illegitimate. And there does seem to be something rather incongruous about the Maldivian government reaching out like this at the same time they are suppressing dissent at home. Nonetheless, it seems like an opportunity for much more good than harm, and clearly a great experience for the students involved.

Baker Botts

A very interesting article in today's American Lawyer about the new appellate practice at Baker Botts in Washington. I had the pleasure to spend most of this last summer working for Jeff Lamken and Mark Stancil, who are leading the new practice:

The 164-year-old law firm Baker Botts is known for many things, but a significant U.S. Supreme Court practice has not been one of them. Which is why, when the firm announced in July that it had hired three Supreme Court clerks fresh out of their year at the Court -- with the possibility of a fourth and fifth clerk coming over too -- it came as a considerable surprise. Most of the veteran Supreme Court firms consider themselves lucky if one or two clerks sign on in a given year. So why would three or more clerks who could write their own tickets at almost any firm choose to climb aboard at Baker Botts?

The answer goes back nearly five years and tells the story of how a venerable law firm goes about launching a Supreme Court practice, even at a time of fierce competition for a shrinking number of cases. It also shows how, in the process, a firm can rejuvenate and energize a prestigious part of its business. The next generation of top Supreme Court advocates may be assembling at Baker Botts.

Though I likely won't be returning to the firm any time soon (I'm looking in Atlanta for a six-month stint before I head to the JAG school and four years in the Army), I can't wait to see how the practice develops.

Cert Granted

Extremely exciting news. The petition for certiorari I worked on this summer was just granted by the Supreme Court of the United States:

In other action Tuesday, the high court agreed to hear an appeal involving an amateur radio operator who says the city of Rancho Palos Verdes, California, unjustly denied him a permit to use a radio antenna for commercial purposes.

At issue is whether the federal Telecommunications Act of 1996 provides for money damages from city officials in cases of violations, or simply a court order requiring the city's compliance. The 9th U.S. Circuit Court of Appeals ruled the radio operator was entitled to compensation.

The case is City of Rancho Palos Verdes et al v. Abrams, 03-1601.

This was the very first cert petition for Jeff Lamken since he left the Solicitor General's office for Baker Botts, and he worked relentlessly on it. He's a great boss and an even better person, so I feel much joy at his success. A perfect start to what I'm sure will become an elite appellate practice.

Hamdi Goes Free

A lot of people are skeptical about the Supreme Court's ability to stand up to public opinion, to slap down executive power during wartime, and to create real effects through their decisions. But I would think we can all agree that if not for the Court's decision in Hamdi v. Rumsfeld, Yaser Esam Hamdi would not be going free in the next few days:

The Justice Department has reached agreement with a U.S. citizen held as an enemy combatant for more than two years, clearing the way for him to return to Saudi Arabia, officials said Wednesday.

He will lose his citizenship, but otherwise faces no charges either in America or Saudi Arabia.

The Taxing Power

Whether it was a benefit or a curse, taking Federal Income Taxation last semester at least meant I saw this complication coming the moment Oprah announced the big surprise:

When Oprah Winfrey gave away 276 cars last week to the audience of her show, images of people laughing, jumping, crying -- some hysterically -- filled the airwaves and the give-away became stuff of legend. Late night talk show hosts and newspaper columnists are still talking about it.

But now some of those eager prize-winners have a choice: Fork over $7,000 or give up the car.

According to a spokeswomen for Harpo Productions Inc., Oprah's company, the recipients must pay a tax on the winnings, just like any prize.

This is a common occurrence for anyone who goes on a game show. I don't know if there is anyway to get around it, though I suppose Oprah or Pontiac (or someone else) might be able to give tax-free gifts of $7000 to each recipient to cover the income tax liability. Not sure about that though (I didn't say I understood the class).

Partial-Birth Abortion Ban Unconstitutional

The latest attempt to ban partial-birth abortions, this time at the federal level, has failed:

In a highly anticipated ruling, a federal judge found the Partial-Birth Abortion Ban Act unconstitutional Thursday because it does not include a health exception.

U.S. District Judge Richard C. Casey in Manhattan said the Supreme Court has made it clear that a law that prohibits the performance of a particular abortion procedure must include an exception to preserve a woman's life and health.

I'm not surprised. This was a political stunt, not legislation.

Blakely Redux

Via the good folks at Goldstein Howe comes news that the Supreme Court will be revisiting Blakely, and soon:

Acting swiftly, the Supreme Court moved today to resolve some of the basic constitutional questions about the federal Sentencing Guidelines in the wake of its ruling June 24 in Blakely v. Washington. Accepting all of the suggestions of the Justice Department, the Court agreed to review two constitutional questions in two cases � U.S. v. Booker, 04-104, and U.S. v. Fanfan, 04-105. The Court indicated it would decide whether Blakely applies to the Guidelines and, if so, whether the entire Guidelines system is invalid, or some of it can be salvaged.

The Court ordered expedited briefing, and set the case for argument on the afternoon of Monday, Oct. 4 � the opening day of the new term.

Can you feel the excitement? I'm all tingly. Expect further commentary from SCOTUSBlog and Doug Berman's Sentencing Law and Policy.

Jews Off the Jury

If true, the accusations in this story strain the limits of absurdity:

The California Supreme Court is asking the attorney general's office to explain why a convicted murderer's death sentence shouldn't be reversed based on allegations that a now-deceased Alameda County, Calif., judge colluded with prosecutors to ensure a capital conviction by keeping Jews off the jury.

The court on Wednesday issued an order to show cause based on defense lawyers' claims that convicted murderer Fred Freeman's 1987 trial was tainted when then-Superior Court Judge Stanley Golde allegedly told prosecutors to keep Jews off the jury because they would never vote to send someone to the gas chamber.

These allegations stem from statements obtained from the prosecutor in the case, which sounds pretty credible. It is still hard to imagine something like this going on in an American courtroom in 1987, but perhaps that is my naivete speaking.

Either way, the story leaves open the question of whether Jewish jurors really are that much more hostile to the death penalty. If so, does that hostility stems from the (implied) allusions to Nazi gas chambers, or from the more general leftward leanings of most American Jews?

Sentencing Consultants

By now, most of us are familiar with jury consultants, brought in solely for their supposed expertise in picking a favorable jury during voir dire. But apropos Martha Stewart's brand spankin' new five month prison sentence, word comes of a new legal industry: sentencing consultants:

Ms. Stewart's hire is not an anomaly these days. As white-collar criminals increasingly face jail terms, a group of consultants is helping them transition from life in the fast lane to life behind bars.

Some advisers focus solely on the sentencing process, often convincing judges to hand down shorter and lighter penalties. Others are more all-encompassing: part legal adviser, part psychiatrist, and part friend, as they help defendants and their families prepare for the shock, humiliation, and isolation that often accompany a prison sentence.

Those familiar with the business say the industry is in great demand from white collar criminals, ranging from child pornographers to CEOs accused of stealing corporate funds.

Well it looks like Stewart got the minimum reasonable sentence, but who knows how much this consultant had to do with it. The lower end of the guidelines suggest 10 months, and the judge split that into 5 months in prison and 5 months home confinement. Speaking of which, is there really a sensible way to think of 5 months confined in Martha Stewart's home as punishment? I'd pay for that opportunity.

But for those who think Stewart's five months in prison will also be a walk in the park, don't be so sure:

[I]t's not a given that a white-collar criminal will go to a federal prison camp. Lea Fastow, convicted of Enron-related crimes with her husband, former Enron finance chief Andrew Fastow, entered a maximum security facility this week because there was no room in a camp. "She will spend most of her time locked down; it will be terrible," says Hoelter.

And one must be prepared for a new social hierarchy:

Novak also tells clients to go without notions of superiority. "It's very easy to delude yourself that you are superior to your fellow inmates," says Novak. "Federal prison is truly the great equalizer."

That's one way to look at it.


I'm not in a position to evaluate whether the law in question is wise, effective, or possibly even unconstitutional. But it sure makes me raise an eyebrow:

Keith Emerich, 44, said Tuesday that he disclosed his drinking habit in February to doctors who were treating him at a hospital for an irregular heartbeat.

Emerich received a notice from the Pennsylvania Department of Transportation in April that his license was being revoked effective May 6 for medical reasons related to substance abuse.

A state law dating to the 1960s requires doctors to report any physical or mental impairments that could compromise a patient's ability to drive safely, PennDOT spokeswoman Joan Nissley said.

And I can not help but note the dripping irony in this statement:

Nissley said she could not discuss the details of Emerich's case because of confidentiality requirements that also protect the doctor from being identified.

Huh. The doctor can (in fact, must) tell the state government what his patient tells him about his alcohol consumption, but the doctor's name is protected by confidentiality. That's an interesting arrangement, to say the least.

Olson on the Detainee Cases

Interesting, and I think essentially correct thoughts on the detainee cases from departing-SG Ted Olson:

"The justices of this Court, I submit, are keenly sensitive that the Court's human rights precedents have not, in retrospect, been perceived as the Court's finest hours," Olson said.

Olson noted the 1942 ruling that upheld the military trials of eight German saboteurs, including six who were executed, and the 1944 decision affirming the detention of Japanese-Americans during World War II.

"The underlying current in the enemy combatant cases is that this Court is determined not to go down in history as the court that turned its back when asked to help," Olson said.

I also have trouble believing that the constant news about the torture scandal at Abu Ghraib had no effect on the justices, particularly those in the squishy middle most prone to influence by factors outside the record.

Terrible Reporting

Yet another example of why the mainstream media is utterly unreliable when it comes to reporting on Supreme Court decisions:

Moderate-liberal justice David Souter, as well as Breyer and Ginsburg sided with Hamdi, joining the more conservative Rehnquist, Anthony Kennedy and O'Connor. Supporting the government was liberal John Paul Stevens, joined by the two most conservative justices, Antonin Scalia and Clarence Thomas.

Whoever wrote this paragraph apparently made the simplistic (and false) assumption that because Scalia, Stevens, and Thomas dissented, they all supported the government. Yet anyone who is at all familiar with the decisions knows that Scalia and Stevens dissented from the decision because they disagreed with the government's position even more than the plurality, arguing that only a suspension of the writ of habeas corpus could authorize such a detention. Thomas alone accepted the government's position.

Legal topics just happen to be an area in which I have sufficient personal knowledge to recognize some of these blatant errors. Who knows how many errors pass me undetected in most other stories because I lack such expertise?

9th Circuit in the SC

Interesting article about the domination of the Supreme Court docket by the Ninth Circuit, pointing out (as many have) that the reversal rate is not higher than average:

Ninth Circuit appeals accounted for about one-third of the Supreme Court's docket in the term that ended Tuesday -- 25 of 78 cases. Hellman said about one-sixth of petitions for certiorari were from the 9th Circuit, meaning that the Supreme Court is "taking cases from the 9th Circuit at a much higher rate than you would expect."

Legal scholars offer a handful of explanations for the circuit's increasing domination of the high court docket, which they noticed a few years ago. One reason may be that the West is a cultural and economic powerhouse, a place where novel legal issues are simply more likely to come up.

"If an issue is not happening somewhere on the West Coast, it's probably not a significant issue," said Hastings College of the Law professor Vikram Amar.

Besides that, there's also the microscope factor.

"You have to wonder whether the [Supreme Court] law clerks don't take a special look at 9th cases," said Hellman, who closely follows the 9th Circuit. It's like "a self-reinforcing phenomenon because they've taken so many in the past that it becomes the focus of attention," he speculated.

Amar pointed out that nearly half the Supreme Court has personal ties to California and the West: Chief Justice William Rehnquist and Justice Sandra Day O'Connor both attended Stanford Law School and then worked in Arizona. Justice Anthony Kennedy was born in Sacramento and sat on the 9th Circuit, and Justice Stephen Breyer was born in San Francisco.

But as the article notes, the Ninth Circuit is likely no longer the black sheep it was in recent years:

The tarring came just a few years ago when the circuit was viewed as being dangerously out of step with the rest of the country. Unhappy with what the circuit was doing, U.S. Supreme Court justices sent a strong message, Goldstein said, by reversing circuit cases and making comments at judicial conferences and in other speeches and writings.

"What the Supreme Court was really doing was encouraging the 9th Circuit to police itself," Goldstein said.

The 9th Circuit is apparently taking that message to heart. Goldstein pointed to the litigation last fall over the recall, where a three-judge panel halted the election -- a move many believed would benefit embattled Democratic Gov. Gray Davis.

But the court immediately reconsidered the case en banc and issued a unanimous ruling in Southwest Voter Registration Education Project v. Shelley, 03 C.D.O.S. 8617. Arnold Schwarzenegger won the election by a comfortable margin.

Interesting stuff.

Supreme Court

I had the good fortune to be at the Supreme Court this morning for the announcement of decisions in numerous momentous cases, followed by a small question and answer session with Justice Ginsburg.

Of course everyone is all over the detention cases, but I was equally gratified to be there to hear the outcomes of Patane and Seibert, two very important Miranda cases that I studied in CrimPro.

I do not have a lot to add to the commentary being contributed by others (especially at ScotusBlog), but I can say it was quite a day to have been in the court. Tom Goldstein summarizes well:

There were an array of opinions from the bench in the detention cases today. By far, the most striking and passionate were those of Justice Scalia concurring in Hamdi and Justice Stevens dissenting in Padilla. Justice Scalia argued forcefully that the government must charge Hamdi with treason in court, and the Great Writ of Habeas Corpus has a vital tradition and could be suspended only by Congress through democratic means. Justice Stevens, using exceptionally strong rhetoric, argued that the detention of Padilla incommunicado amounted to the �tools of a tyrant.�

The speeches of both Scalia and Stevens were stirring. Justice Ginsburg was entertaining (but appropriately reserved). All in all, a wonderful experience.

SG Resigns

Solicitor General Ted Olson has resigned:

Olson said he informed Attorney General John Ashcroft and Vice President Dick Cheney of his plans on Wednesday and told members of his staff on Thursday morning.

"It seemed like the right time to do it," Olson, 63, told Legal Times Thursday. "I love the job. I love the people. I love the Court. It's good to go when you're happy."

I found this passage particularly interesting:

Before the Court, Olson argued numerous important cases -- 41 in all during his private and public career -- and on Thursday he singled out Zelman v. Simmons-Harris, the 2002 school voucher case, and McConnell v. FEC, the 2003 campaign finance reform case, as his biggest successes as solicitor general.

"Some people thought we wouldn't have our heart in defending the [campaign finance] law, but it was an act of Congress we were proud to defend," Olson said.

That is what a good lawyer should do for his client, but it is still interesting to hear him single out that case.

Olson also implies that Deputy Solicitor General Paul Clement might be a good candidate to replace him. I think that is somewhat unlikely. As this article suggests, Clement has been the point man in defending the administration's tactics in the war on terror. And during oral argument, he specifically denied that our government uses even mild forms of torture.

Not the sort of thing I think the administration wants to have discussed in the next SG confirmation hearing, though they have thumbed their noses (and shouted expletives) at the Senate Democrats plenty of times before.

Under the Robes

They don't teach you how to deal with this in Trial Ad:

While seated on the bench, an Oklahoma judge used a male enhancement pump, shaved and oiled his nether region, and pleasured himself, state officials charged yesterday in a petition to remove the jurist. According to the below complaint filed by the Oklahoma Attorney General, Donald D. Thompson, 57, was caught in the act by a clerk, trial witnesses, and his longtime court reporter (these unsettling first-hand accounts will make you wonder what's going on under other black robes). Visitors to Thompson's Creek County courtroom reported hearing a "swooshing" sound coming from the bench, a noise the court reporter said "sounded like a blood pressure cuff being pumped up." Thompson, the complaint charges, even pumped himself up during an August 2003 murder trial.

And they want him removed from office? That's like trying to remove Judge Roy Bean! They'll miss him when he's gone.

Padilla and the Constitution

Phil Carter has worthwhile thoughts on the frighteningly Kafka-esque arguments being employed in favor of continued detention of Jose Padilla. His key paragraph:

There is a term of art that lawyers use to refer to a case that can only be proven by ill-gotten evidence: "bootstrapping". If there was ever a textbook case of bootstrapping, this is it. The Justice Department declined to indict Jose Padilla in May 2002 when it had the chance, and instead has deployed lawyers to fight for the White House's right to hold him as an enemy combatant. Now, it has built a criminal case against him, but only by questioning him in violation of his Constitutional rights in a way that means this evidence can never be used in court. Without this evidence, the Justice Department can't make its case. And indeed, without this evidence, the entire case against Jose Padilla probably goes away. The irony of that is that good police work and Constitutional interrogation might have been able to crack Mr. Padilla, while leaving open the possibility of a criminal trial should he eventually be charged in federal court. But more importantly, this evidence (gathered through admittedly unconstitutional means) is not being used in court � it's being used to justify Mr. Padilla's continued detention without any court proceedings at all. I can't figure out which cart is before which horse, because so many things are backwards here.

I can't figure it out either.

Congressional Scrutiny of Federal Judges

It looks like severely reduced discretion in sentencing was not the last effort by congressional Republicans to apply pressure to the federal judiciary, and their latest efforts regarding judicial discipline might be having an effect:

Chief Justice William Rehnquist was offering an olive branch to Congress last week when he created a committee to evaluate the federal judiciary's discipline system. But it may have come too late.

Rehnquist was responding to startlingly blunt criticism of the judiciary in recent months, especially from House Republicans who seem intent on taking the judicial branch down a notch or two and giving it the kind of congressional scrutiny it usually does not get.

The key speech signalling this intent was given by House Judiciary Committee Chairman James Sensenbrenner:

Instead of the usual blandishments offered by outsiders who address the conference, Sensenbrenner went down a list of recent judicial ethics missteps. One of the judges involved was in the audience. Sensenbrenner said the judiciary's handling of ethics complaints raised "profound questions with respect to whether the judiciary should continue to enjoy delegated authority to investigate and discipline itself."

Sensenbrenner also defended the right of Congress to oversee the judiciary. "Federal judges in a democracy may be scrutinized and may even be unfairly criticized," Sensenbrenner said according to the text of his speech, released afterward.

According to one judge in attendance, Sensenbrenner's speech was greeted with "stunned silence" by the judges. Another said, "We're not used to being dressed down on our own turf like that."

But as dumbfounded as the judges were by Sensenbrenner's speech, Rehnquist apparently took it to heart as a sign of the strains between the judiciary and Congress -- especially the House of Representatives. And in a series of steps since then, culminating in creation of the new discipline study committee, Rehnquist has moved to repair the breach.

It is hard to know what to make of all this. On the one hand, I am pretty skeptical of the motivations of House Republicans in applying any pressure to the judiciary in this way. We certainly did not hear any uproar from them over the Scalia/Cheney duck-hunting trip. On the other hand, this is a government of checks and balances, and there is nothing inherently wrong with Congress using its duly delegated authority to provide some supervision and oversight. The key there is "some," because both the letter and the spirit of Article III make abundantly clear that the judiciary is to be a fully equal and independent branch, and the line between supervision and control is a thin one indeed. Rehnquist may be just the person to craft a compromise that satisfies congressional desires and judicial independence.

Stealing Clients

Turns out stealing clients from other law firms is not only unethical, it is expensive:

A jury has awarded a law firm $1.4 million in damages because several of its clients were stolen by a rookie lawyer at another firm.

Rosenberg Minc, a personal injury firm, had sued another personal injury firm, Mallilo & Grossman, and one of that firm's lawyers for carrying out the client theft scheme.

Vogt said trial evidence showed Pimsler, a 1997 graduate of Touro Law School, called Rosenberg Minc's answering service every weekend between March 1998 and May 1999, pretended to be a partner in the firm and collected messages.

Pimsler used the messages to contact Rosenberg Minc's potential clients, meet them and get them to sign retainer agreements for Mallilo & Grossman, Vogt said.

Well that was innovative, to say the least. It also got Pimsler disbarred. Sometimes thinking outside the box takes you too far outside.

Gay Marriages

I have articulated at length my reservations about the way that gay marriage has come into existence. I want to put that to the side, however, and say loud and clear that I think tomorrow will be a wonderful day in Massachussetts. I hope many loving and committed couples exercise their rights and add luster to an institution that has excluded them for too long.

Deadbeat Father Gets 9/11 Compensation

Even for those of us who prefer the judiciary to engage in narrow intepretation of statutory language, it is hard to swallow a decision like this:

A father who abandoned his son in infancy and refused to financially or emotionally support him is nonetheless entitled to half the death benefit owed to the son, who was killed in the Sept. 11, 2001, terrorist attacks, a divided appellate panel has held.

The Appellate Division, 3rd Department, concluded that the Workers' Compensation Law describes parent in strictly biological terms.

Since the father's parental rights were never formally severed, he is entitled to the same benefit afforded to the mother, who struggled on public assistance and raised two well-educated and successful sons, the court found.

This is first and foremost the fault of the legislature, which through sloppy drafting neglected to include an explicit exclusion of parents who have abandoned their children (like they have in their state intestate laws). Perhaps broad construction of statutes has lead to imprecision and carelessness on the part of legislators, and perhaps that ought to be rectified by a concerted shift to strict, if cold, interpretation of statutory language. Still, hard to see how justice had been done in this case.

The Framers' Views of Restraining State Sovereignty

Incidental to a discussion on standing in today's Federal Courts class, Professor Caleb Nelson presented a view of the 1st Amendment's Establishment Clause as a purely federalist protection. Under this view, the clause prevents Congress from both forcing or prohibiting a state from endorsing or not endorsing a particular religion. Likewise, it cannot declare an official national religion as this would preempt the states' power to choose their own. This would, of course, mean that the 1st Amendment would have no problem with a particular state, say Virginia, declaring that Episcopalianism is the official state religion. In fact, it was intended to protect that precise choice.

Now this is clearly not the present understanding of the Establishment Clause. It is now widely viewed as a protection of individual liberty, enforceable against both federal and state governments. Yet the federalist theory raises some interesting historical questions about which I have remained largely ignorant. Whether the 1st Amendment was originally intended to protect the states against the federal government, or the people against the federal government, the one thing it clearly did not do was protect the people against the states. So the obvious question is this: what was going to protect the people against the states?

My understanding is that the traditional answer, and the one I've been unquestionably following my whole life, is that the Framers' held a belief that the very nature of state government, due to its proximity and accountability, would restrain it from infringing on the types of liberties with which no government (whether state or federal) should interfere. Yet this view includes at least two assumptions which I think ought to at least be questioned: 1) that the Framers' really did believe that there were rights which even the states ought not be able to infringe upon; 2) that the very nature of state government would prevent such infringement. My discussion of these two prongs is going to be interrelated, but I'll try to parse it out a little.

I'm not at all familiar with the alternative view of the first prong, but it apparently goes something like this: what the Framers' were most concerned about was not the protection of individual liberties against all infringement by any government, but the infringement by governments which are distant (even "foreign") and unaccountable to those they seek to govern. This might be best represented by the classic grievance of "no taxation without representation." Here the complaint is not necessarily a libertarian claim that taxation is somehow incompatible with the proper role of government, but merely that it is a power that can only be wielded by a government properly answerable to those it seeks to tax.

Under this view, the Constitution generally, and the Bill of Rights in particular, should not be seen as limiting the federal government so as to protect individual rights of the people from all regulation, but merely to ensure that such regulation is conducted by state governments. As such, these Framers' might have no legal qualms with Virginia having an official state religion, or New York imposing prior restraint rules, or Pennsylvania police conducting all searches and seizures without warrants. See, for example, Article III of the Massachussetts Constitution:

[T]o promote their happiness and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several Towns, parishes, precincts and other bodies politic, or religious societies, to make suitable provision, at their own Expense, for the institution of Public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

Keep in mind that this claim would not be inconsistent with particular Framers' opposing such laws on policy grounds. The claim is merely that they would not think it outside the sovereign power of a state to have such policies.

The second prong suggests that, assuming that the Framers' did want the states to refrain from infringing on these rights (unlike the view just articulated), it was the very nature of state government that would guarantee this restraint. This is a pretty broad articulation, and I'm not sure how closely this really tracks the traditional view. But I'd like to at least explore a couple possible interpretations and the implications of them.

The first possible interpretation is that state legislatures would themselves be restrained, because the legislators are so proximate to their constituents and thus very accountable to them. This is an appealing belief, and would seem to fit nicely with many modern day federalists' and their longing for a shift of power to state legislatures and more local governmental bodies (city councils, school boards, etc.). Yet this view seems inconsistent with the existence of state constitutional provisions securing many of the same liberties as the federal Constitution seems to do. If the Framers' really trusted state legislatures, would any of the various state constitutions have included provisions guaranteeing the freedom of speech, the right to a jury, the prohibition on capital punishment, as the Virginia Constitution does? Additionally, would it really make more sense to read the 1st Amendment as protecting the states against the federal government, and the Virginia Constitution as protecting the people against the state, rather than reading both as protections of individuals against two different sovereigns?

Of course, another interpretation of this presumed trust that state governments will be able to restrain themselves might actually proudly present the various state constitutions as evidence that the people of the state, if not the legislature itself, are fully capable of enshrining the various protections. This view might be questioned a bit if one sees, for example, a tension between the individual freedom of religion and the provision of the Massachussetts Constitution quoted above. Compare that provision to Article I, Section 16 of the Virginia Declaration of Rights:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

And this brings us back to the first prong, I think. To the extent that these disparate approaches to the protection of freedom of religion at state level would be acceptable to the Framers', I think it supports a view that they were concerned not so much with a particular vision of individual liberties as with the protection of the states' sovereign power to make unique and independent determinations of how to regulate those rights. To the extent that a particular Framer would think that Massachussetts' approach is an unacceptable infringement on the individual right of religious freedom, than we ought to be able to gather two things about his views: 1) the Bill of Rights does not merely protect spheres of state power from interference from the federal government, but in fact articulates and protects individual liberties; 2) to the extent that a state like Massachussetts has failed to refrain from interfering with those rights, it represents a failure of the theory that states are somehow inherently restrained from such behavior. This latter point, I think, is likely the source of much of the modern opposition to calls for "states' rights," and is now felt to be largely supported by the experience of slavery to some extent, but especially the experience of Jim Crow.

I don't have any conclusions to draw from this discussion, it is simply a series of issue I've not really had raised in my academic experience. Were the Framers' as truly committed to individual liberties as our modern day heroic view suggests? Or were they more interested in guaranteeing state sovereignty, and less concerned with whether the states would use that power to infringe on the rights we so cherish today? And to the extent that some of the Framers (and here I should explicitly acknowledge that much of the confusion may be caused by the fact that many of the Framers held very different, often conflicting views and theories of government) were committed to individual rights, but failed to enact Federal Constitutional provisions protecting these rights against state interference, was it the result of simply having misguided views about the likelihood of state self-restraint? Was this caused by naivety? Knowledge of a need to compromise with other factions in the Constitutional Convention?

Any guidance, answers, or suggested reading would be most welcome.

UPDATE: Several people have written to recommend Akhil Amar's The Bill of Rights, which fortunately for me is sitting on my shelf right now. I guess it is time to take it off the shelf.

Publishing Volokh

I'm very excited to hear that Professor Volokh has accepted the Virginia Law Review's offer to publish his latest work, entitled Crime Severity and Constitutional Line-Drawing. The essays editor who called to make the offer is a good friend of mine, and she was very excited to tell me that she'd gotten to call him. I'm glad he called back with good news. I've previously made clear in what low esteem I hold most of the academic writing we see submitted to the Law Review, so it is all the more pleasing to be able to publish something of the quality Professor Volokh is known for.

Stewart's Grounds for Appeal

Martha Stewart's attorneys think they have grounds for an appeal:

Martha Stewart's lead attorney Robert Morvillo intends to appeal her conviction by arguing the judge unfairly prevented him from explaining to the jury Stewart had not been charged with criminal insider trading, according to a person close to the defense team.

"We think that was important," a person knowledgeable with the strategy told CNNfn. "Some of the jury comments afterwards indicated they felt they were punishing her for the trade. We should have been able to explain you're not being asked to judge the propriety of the trade."

The article suggests that this is unlikely to succeed, though it does probe at some of the questions I was considering yesterday. I think it pretty clear that one of the large motivations for this prosecution of Stewart on lesser, collateral crimes is that the prosecutors truly believe she is guilty of the larger, underlying illegality. After all, they are bringing a civil suit where they don't have to meet the "beyond a reasonable doubt" standard:

While Stewart was never charged with criminal insider trading for her sale of ImClone, she is facing a civil lawsuit from the Securities and Exchange Commission alleging that her sale of ImClone was an illegal inside trade.

What is more worrisome is the idea that the jury has convicted her of the collateral crime in some part because they are convinced she was actually guilty of some other crimes. To the extent that Stewart's attorney was not allowed to defend against the prosecution's innuendo to that effect, I think there has been some injustice. Probably not enough to overturn her conviction, but just another difficult aspect to a case already difficult to reconcile with my competing intuitions.

Collateral Prosecutions Pt. II

I wanted to say a few more words about what I'm calling "collateral prosecutions," where individuals are charged for crimes either committed as a result of or simply uncovered by a criminal investigation into some other potential illegality (the "root crime"), and which would not have been investigated or prosecuted on their own.

I wanted to discuss the prosecutor's side. When those prosecuting Martha Stewart (or Bill Clinton, or whomever) realize that they either cannot bring charges or win a conviction for the root crime, what should their next course of action be? Should they ignore the collateral crime? Should they prosecute for it?

My intuition suggests that it might depend on whether or not the prosecutor is still convinced that the individual really did commit the root crime, but that it simply cannot be proven beyond a reasonable doubt. I'm sure it is often the case that prosecutors continue to believe the individual is guilty of higher crimes, even if they cannot prosecute him for them. As such, they feel fully justified in sending him to jail for whatever they've got him on. And in some cases, this is pretty clearly the right result. An easy example would be Al Capone. Did anyone consider it unjust that he go to prison for tax evasion, even assuming that were a crime that would not have been investigated or prosectuted on its own? I think not, and I think this is a result of our widespread, firm belief that he was in fact guilty of many other crimes, and thus deserved to be punished.

I also think this is more true where, like in Hypothetical B below, there is a greater nexus between the root crime and the collateral crime. Perhaps the prosecution just feels less arbitrary, perhaps the collateral criminal behavior seems less excusable.

Anyhow, I suspect this explanation does much (most?) of the work in explaining prosecutorial behavior in these cases, and why we often see lesser collateral charges brought even though other intuitions suggest such prosecution seems petty or vengeful.

But let us assume for a moment that the prosecutor himself is now convinced of the individual's innocence of the root crime, though certain that they are guilty of the collateral crime. What then? Many would see any collateral prosecution as a product of simple vindictiveness, or bruised prosecutorial egos. But I still think there are good explanations for why a prosecutor would bring the case.

Most basic is the fact that they are duty-bound to pursue law violators and see them punished. Of course this is nearly begging the question, since built into a prosecutor's position is a great deal of discretion about where and when to bring charges.

One factor favoring prosecution would be public and political pressure. Though the individual would never have been investigated just for the crimes he is actually being charged with, in this case he was investigated because of now-disproven suspicion regarding the root crime. The evidence of the collateral crime was gathered, and illegalities have been shown. With so much attention, both from the media and from superiors, it might be very difficult for prosecutors to simply overlook crimes of which they have clear and convincing evidence. That sort of discretion goes on every day, I'm sure. But not under the spotlight that some of these cases bring. As such, perhaps the discretion of the prosecutors is severely narrowed, or at least they feel it was, and as such saw no other choice but to charge for the crimes they think it clear they can prove were committed.

After all, every cry of "prosecutorial overreach" can be quickly turned into a cry that "rich defendants always get off." The defendant that is martyr to some is often anathema to just as many. There is also, of course, pressure to get results at the end of a long and expensive investigation. Though that would not be a particularly satisfying explanation, it is still much more sympathetic than the portrayal of prosecutors as bloodthirsty and vengeful. And that's the idea I'm getting at generally with this post. I tend to dislike the stereotyped caricatures that we assign to various public actors, and wanted to dig a little deeper into potential explanations for what is often characterized as unpleasant and unjustified behavior.

Collateral Prosecutions Pt. I

I'm taking a short course (meets every morning for 90 minutes for two weeks) on White Collar Crime, and today's class probed into an area of prosecutorial discretion which I've long been troubled by: the prosecution for crimes either caused by or uncovered by a criminal investigation into some other potential illegality (the "root crime"), and which would not have been investigated or prosecuted on their own. I'll call this "collateral prosecution."

The most obvious contemporary examples of this would be President Clinton and Martha Stewart. I also spoke about this to some extent in my discussion last month regarding the case against Captain Yee, in which the young chaplain was originally suspected of espionage. During the course of the investigation, those charges were dropped and replaced by charges of adultery and pornography possession. Many argue that these are crimes that would likely not be investigated or prosecuted on their own, and that the prosecution against Captain Yee is a result of prosecutorial stubbornness, pride, or vengefulness.

I think this is a very difficult area to wade into, both legally and morally. On the one hand, it seems clear that, more likely than not, these individuals are in fact technically guilty of the collateral crime which they have actually been charged with. We do want to discourage misrepresentations to police and federal investigators, because in many (most?) cases they are investigating, there is some root crime to be uncovered. And even where there is not, we would rather our investigators be able to quickly discover that, so they can move on and expend resources elsewhere. Any obfuscation or obstruction is thus costly to our system, and we want the obstructors to bear the cost, as well as deter future obstruction.

And yet many of us, myself included, have an intuition that there is something unfair about the government being able to subject an individual to such intense scrutiny, and then charge them with some collateral crime. Perhaps this is because we do not think our own lives would withstand such scrutiny. Considering the size and duration of the various investigations into the Clintons, this seems a likely source of sympathy for them. It is even more true when the collateral crime is not perjury, false statements, or obstruction in the course of the investigation, but is in fact some charge wholly unrelated to the original investigation. It seems the case against Captain Yee would be a perfect example of this. Here we have a young officer suspected of terrorism-related espionage. The whole weight of the military criminal investigation system bears down on his life, and lo and behold, he cheated on his wife and possessed pornography. How confident are each of us that a similar invesigation would leave us in the free and clear? How confident are we that we would not be caught in any untruths, any concealment?

And even if we are confident that we ourselves would emerge unscathed by criminal sanction, perhaps we see something unseemly about the process itself. That these people should have to undergo such an ordeal only to be caught in these minor crimes, which would not have been investigated or prosecuted on their own.

I think, however, that this sympathy can go too far. One line I would draw would question what the nexus is between the collateral crime and the alleged root crime. Let's take false statements as an example.

Hypothetical A: An individual is being investigated for insider trading (of which he is totally innocent), and is being questioned about his phone records, to see which calls came to and from his stock broker. One of the recurring numbers is a woman he is having an affair with, which he does not want to divulge (maybe his wife is there, who knows). He tells the investigators it is his brother's number. Has he committed a crime? I'm not yet clear on the details of these laws, but let us stipulate that yes, he has technically violated the law against false statements.

Hypothetical B: Now let us take the same individual, still being investigated for insider trading, still totally innocent, but now let us say that phone calls really were to and from his stock broker. He tells the investigators it was his brother. Let's stipulate that this is the same technical violation of the law.

Do these situations seem different? I think they do. I think the nexus between the lie and the investigated root crime in Hypothetical B make that a more severe case. Whether it be because we think the individual is more culpable (e.g. they are actually trying to divert the investigation, rather than simply hide an affair) or because it comes at greater cost to our investigators (since the lie effects the main focus of their investigation), I think we can distinguish between the two.

I have to run to class now, but I'll have further thoughts in a few hours.

Blackmun's Papers

It's not often that deceased Supreme Court justices make the news, but today is one of those days. Five long years after his death, Justice Harry Blackmun's much-anticipated private papers have been unveiled:

A vast new trove of material on the hidden workings of the U.S. Supreme Court becomes available today as the Library of Congress opens the papers of former Justice Harry A. Blackmun, covering 24 years of internal court deliberation on issues such as capital punishment, school prayer and especially abortion.

They provide a striking self-portrait of the author of Roe v. Wade, the 1973 opinion legalizing abortion, in which Blackmun is at first oblivious to its potential controversy ("I didn't appreciate it," he says) and then hounded by it for years, buried in mail pro and con, picketed at a speech, wishing it would recede but simultaneously defending it from successive challenges.

Some of the most interesting documents have been put online by the Library of Congress. Though the full archives won't be available until tomorrow, exclusive previews were given to NPR and The New York Times, and Linda Greenhouse at the Times has a long story on what the papers tell us about Harry Blackmun:

They disclose behind-the-scenes shifts during decision-making and the origins of important rulings, including Roe v. Wade. The papers show the disarray of the Burger court and the relative calm of the Rehnquist court. They also tell a very human story: how the long friendship between Warren Burger and Harry Blackmun could not survive the cauldron of their joint service on the nation's highest court.

And they help explain one man's journey. Justice Blackmun did not simply stand still while the court around him became more conservative. His movement across the court's spectrum was not just relative, but absolute; while the court went in one direction, he went in another.

Greenhouse goes on to detail Blackmun's movement on capital punishment and the catalyst that was Roe v. Wade. There is no worthwhile way to summarize or excerpt, and it really is an article worth reading from start to finish.

The Times also has a story detailing what can be learned from the papers regarding other justices, like in this exchange over abortion between Justices Kennedy and Blackmun:

Justice Kennedy then sent Justice Blackmun a handwritten letter. "After much hesitation, I decided it would be best for our collegial relation and, I hope, mutual respect to tell you that I harbor deep resentment at your paragraph in the dissenting opinion," he said. "You say my hyperbole is to incite an inflamed public. To write with that purpose would be a violation of my judicial duty. I am still struggling with the whole abortion issue and thought it proper to convey this in what I wrote."

Justice Blackmun replied the next day. "In the thought that it will help to assuage your feelings," he said, he would limit himself to calling the opinion inflammatory in "result" rather than in its purpose "This should help, but, of course, I do not know whether it will," he concluded.

Or this admission of frustration by Scalia at the end of the 95/96 term, when then-retired Justice Blackmun sent Scalia a note of encouragement:

Replied Justice Scalia: "You are right that I am more discouraged this year than I have been at the end of any of my previous nine terms up here," Justice Scalia replied. "I am beginning to repeat myself and don't see much use in it any more. I hope I will feel better in the fall. A cheering note from an old colleague � one whom, God knows, I was not always on the same side with � sure does help."

Needless to say, all of these stories are worth reading in their entirety. This truly is a treasure trove.

Tortious Bad Blood

It is times like these that make me wish I'd paid more attention in tort law. So many interesting cases! The latest is a Jehovah's Witness suing a hosopital over an allegedly unconsented blood transfusion, with an interesting twist concerning malpractice damage caps:

Claims based on provision of medical services without proper informed consent typically are framed as medical malpractice. A battery claim, however, could sidestep Florida's new statutory cap on noneconomic damages in malpractice actions. The suit cites no specific injury to Cordero other than "trespass against his body."

"The battery charge is based on my client's total lack of consent," said Cordero's attorney, George Bender, a partner at Bender Bender & Chandler in Coral Gables, Fla. "He is extremely devout. It is his deep and firm belief that transfusion is unacceptable for religious reasons."

The story also provides an interesting history of the Witnesses' abstention from blood transfusions and the medical community's reaction. It seems pretty clear to me that, since Witnesses have a right to refuse this treatment, any nonconsensual interference with that right ought to be subject to some remedy in tort. Whether battery makes sense, and whether it can be used as an end-run around the malpractice damage limits, remains to be seen.

Catholic Charities and Birth Control

The California Supreme Court has ruled that a Catholic charity group must provide birth control coverage in its health care plan:

The 6-to-1 ruling could reach far beyond the 183 full-time employees of Catholic Charities and affect thousands of workers at Catholic hospitals and other church-backed institutions throughout the state.

The Supreme Court ruled that the charity was not a religious employer because it offered such secular services as counseling, low-income housing and immigration services to the public without directly preaching about Catholic values.

The one dissenter? You guessed it:

Justice Janice Rogers Brown dissented, writing that the Legislature�s definition of a �religious employer� was too limiting if excludes faith-based nonprofit groups like Catholic Charities.

I didn't even realize there were state laws requiring contraceptive insurance coverage, but apparently they are relatively widespread:

Versions of the law considered in Monday�s ruling have been adopted in 20 states after lawmakers concluded that private employee prescription plans without contraceptive benefits discriminated against women.

The 20 states that require private-sector insurance coverage for prescription contraceptives are Arizona, California, Connecticut, Delaware, Iowa, Georgia, Hawaii, Maine, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New Mexico, New York, North Carolina, Rhode Island, Texas, Vermont and Washington.

Not a whole lot of surprises on that list, though Texas stands out.

Is This Legal?

Just saw this listing while looking for a summer sublet in DC:

$625/month includes utilities. I am a female grad student living in a 2-bedroom apartment but my roommate is leaving for summer. Need to sublet approximately May 15- Aug 15. Hoping to find a Christian roommate. Great deal for summer interns. Also option to continue lease in August if you like the place.

I could not tell you for sure, but I have a suspicion that is not an acceptable criterion.

National Security Deference

detainee.gifThe upcoming "enemy combatant" cases represent one of the most interesting tests thus far of the present Supreme Court, and I think the outcomes could provide much needed insight into how contemporary jurisprudence will respond to difficult legal issues that have, in retrospect, led prior courts astray. Legal Times has an article detailing the potential tension in these cases between the Rehnquist Court's committment to traditional deference to the executive on national security matters, and their demonstrated unwillingness to be resigned to a passive judicial role:

For the last half-decade Dellinger and others have, with a touch of amazement, described the current Court as the least deferential Supreme Court in history. On issues ranging from Miranda warnings to federalism, the Court has repeatedly reminded the other branches of government that it, and no one else, is the final arbiter of constitutional rights and statutory meaning.

The imponderable in the coming terrorism cases is whether the Court can set its assertive self-image aside in the name of war and national security. Not likely, say administration critics, especially because the cases relate so closely to the role of the courts -- the issue closest to the justices' hearts.

I for one can't wait to see these decisions. I took a class last semester on "Foreign Relations Law" and the perceived unwillingness or incapacity of the court to get involved in national security matters was a recurring theme. Even in my current "Constitutional History" course, we've discussed the question of whether it makes any sense for the Supreme Court to even pretend it is offering some sort of oversight when they will never overrule the executive/legislative action, or whether a mea culpa ala Justice Jackson in Korematsu would be better. The latter, it is argued, would at least ensure that more resources were expended at the political level, since recourse to the courts would no longer provide much hope.

One of the keys to these detention cases, I think, is the timing. This is something Chief Justice Rehnquist noted in his book on civil liberties in wartime:

Rehnquist's 1998 book, "All the Laws But One," notes that the Court usually defers to the executive branch while a war is on, but resumes its vigilance over civil liberties after the war is over.

I think this is essentially correct, but the War on Terror presents a new paradigm of analysis. It is obviously much more difficult to delineate the time when war is "on" and war is "over." In some ways, whether justified or not, we are already in a "post-war" state of mind. You'd have never had this kind of support for the detainees in late 2001 or early 2002. Even the ACLU kept its mouth shut for the first month or so after 9/11. But it's now 2004, and sensibilities have changed. We did not have a series of 9/11-type attacks, and for better or worse, the mundanities of normal life have largely resumed. As such, people are willing to give much stricter scrutiny to these detentions, to the Patriot Act, to the justifications for war in Iraq, etc. I think the court will also recognize this shift, and it could lead to some interesting results.

The Ninth Amendment

The boys at Southern Appeal have gotten themselves into a long but fascinating debate about the Ninth Amendment. I don't have anything interesting to add, but I wanted to provide some service by summarizing and linking the whole debate, since it is worth following. It is not often you get to see an internal debate within conservative circles on the Ninth Amendment. For those not familiar with it (no real reason you should be, considering the disfavor it has fallen into), here it is:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Well that's interesting. Depending on your perspective, this might be taken either as confirmation that there are unenumerated rights which ought to be protected, or as a meaningless inkblot (the position taken by Robert Bork). This debate resurfaces every so often, and back when Instapundit was worth reading everyday (pre-Iraq war) he weighed in here, providing links to his previous writings as well as some posts by other bloggers.

From what I gather, Steve Dillard at Southern Appeal staked out a moderate position in between that of "Judge Bork's, which renders the amendment meaningless, [and] Randy Barnett's, who seeks to use the amendment to support a radical form of individualism never envisioned by the framers." Owen Couregges responded with a post arguing that the 9th Amendment was not and should not be considered incorporated by the 14th Amendment. Steve answered that incorporation is not required for his theory. Owen then claimed that the amendment is best understood not as a grant of power to the federal judiciary to provide oversight of unenumerated rights, but as a futher restriction on federal power.

At this point, Tim Sandefur weighed in to suggest that Owen's argument was merely channeling Bork, and that it was "demonstrably wrong," particularly in the assumption that federal judiciary enforcement of individual rights is an expansion of federal power: "The onus is on those who would govern, not on those who would be free." Owen responded by claiming his views are not drawn from Bork, and re-asserting his view that it is merely a restriction on federal power and is not incorporated by the 14th Amendment. Most recently, Steve argued that the Bill of Rights did not merely split sovereignty into two parts (federal and state) but also carved out a domain of people's sovereignty, which we call individual liberties:

I have become increasingly skeptical of the notion that the framers or those participating in the ratification process held the view that the enumerated and unenumerated rights referenced by the federal constitution are dependent upon the States' willingness to recognize and honor them in the future.

It should be noted that Steve's advocacy of unenumerated rights is limited to those well-established at the time of ratification. It is thus a far cry from the expansive interpretation advocated by Randy Barnett.

Supreme Court Vote Aggregation

robertjackson.gifWe had a very interesting discussion in my Federal Courts class on Friday regarding the aggregation of Supreme Court votes. The question arises primarily when there is not a majority of votes for any single opinion, but instead multiple alternate (and sometimes mutually exclusive) theories which add up to a majority. The case we were discussing, and which I'll use as illustration, is National Mutual Insurance Co. v. Tidewater Transfer Co. (1949), in which the Supreme Court held that Congress could authorize federal jurisdiction over a non-federal question suit between a citizen of the District of Columbia and a citizen of a state. Article III, of course, provides for federal jurisdiction over suits "between Citizens of different States," but makes no mention of the District of Columbia. The Court of Appeals affirmed the District Court holding that the diversity statute (which purported to include D.C. citizens as citizens of a state) was unconstitutional as exceeding the jurisdictional limits of Article III.

Justice Jackson wrote an opinion for a three-person plurality crafting a clever (but I think fatally flawed) theory that Congress' Article I plenary power over the District of Columbia would allow them to create courts all over America to hear D.C.-related cases, and they might as well be able to just skip that step and simply add that power to existing Article III courts.

Another two-person plurality argued, quite implausibly, that the District of Columbia counts as a state for purposes of Article III (even thought it does not for Articles I or II), but they also went out of their way to argue that Justice Jackson's theory was pure bunk.

The other four justices would have affirmed the decision of the Court of Appeals. So there was a 7-2 majority against the idea that D.C. is a state for purposes of Article III. There was a 6-3 majority against Justice Jackson's sweeping reading of the confluence of Articles I and III. Yet because there were a total of five justices for the basic position that the Court of Appeals was reversed, we've now had D.C. included in diversity statutes for over 50 years.

Is this the proper outcome? To aggregate mutually exclusive readings of the Constitution simply because they agree on the bottom line? It sure seems strange, doesn't it?

Yet I think it is proper, if for no other reason than this: the Supreme Court does not have to publish justificatory opinions. Yes, it almost always does. And this is for good reason, and can be largely traced back to the genius of John Marshall and his ability to make questionable decisions seem purely logical. It is part of the stature of the Court, and has come to be seen as one of the primary means of communicating future guidance to the lower courts. But the focus on this role is so strong that we sometimes forget the Supreme Court is, at bottom, a court like any other: charged with the ex post role of deciding the case or controversy in front of it. As such, the bottom line is the most important thing, and should remain the primary method of aggregation, strange results notwithstanding.

Repeated Ramblings on Gay Marriage

gaymarriage.gifWith gay marriage back in the news in both Massachussetts and Washington, I thought I'd reprint my previous ramblings on the issue for those who want to try and make sense of my decidedly murky views:

Though on many policy issues I'd be considered a liberal (a few exceptions being gun control, the death penalty, affirmative action), I am also strongly in favor of judicial restraint and, instinctively, states' rights (though I've not given the latter enough serious thought to articulate a particularly intelligent position).

As such, I support judicial restraint even when it upholds a policy I might disagree with (Grutter for instance, though it's awfully hard to call anything O'Connor does 'restrained'), and am uncomfortable with activism even when it enforces a policy I might support (Lawrence for instance). In this sense, I was and am uncomfortable with Goodridge.

On the one hand, I have always thought the strange intersection between religious marriage and civil marriage to be a troubling curiosity. There are good reasons for governments to license pair-bonds for various governmental purposes. There are good reasons for churches to sanction pair-bonds under the various religious doctrines. Yet what these institutions had to do with each other, I've never fully understood.

As a state legislator, I would vote to give gay couples the same privilege of civil marriage/union/whatever, and wouldn't call it anything different from what heterosexuals have. If we choose to change all marriage licenses to "civil union" licenses, that's fine. But gay couples would get the same thing as heterosexual couples under my preferred system.

As a member of a church governing body (however these manifest themselves), I can say that I would vote the same way. But this is a silly counter-factual. So many things about my belief system would have to change for me to be a member of a church governing body (I'm an always struggling Buddhist) that it's silly for me to presume to know how I'd feel about gay marriage in that situation. From looking at most church leaders' reactions, it seems pretty likely that I'd be opposed to gay marriages in my church, if not in society generally. And I respect the right of those churches to place such a limit on which ceremonies they'll sanction. As such, it is important to me that any changes made in the civil code (either by my preferred legislative route, or through less attractive judicial means) respect that right. I'd be very upset to see Goodridge type rulings somehow used against churches. That's a slippery slope fear, and I usually try to avoid them. But it's something I've been thinking and wanted to say. It is very important to me that the First Amendment continue to protect churches' right not to sanction gay marriages, or interracial marriages, or any other kind of marriage, no matter how much I might disagree with such a policy. (I should stop to make clear something that ought to go without saying, which is that by church I mean to cast a wide net over religious groups, not just Christian groups).

With all of that said, I'm left in a very strange position. Where should I go from here? I'd like to see the state legislatures doing the work on this issue. Of course, I'd like to have seen the same thing with school desegregation, and maybe that attitude would mean blacks were still excluded from my law school. Nonetheless, I tend to agree with the view that, unlike the issue in Lawrence, the prohibition on gay marriage "is simply not oppressive in the same sense as is criminalizing gay sexual intimacy." So I'm a bit more willing to wait for the younger generations and their norms to take control of the state legislatures and change the laws.

I am not, however, sufficiently upset at the possibility of judicially-imposed gay marriage that I would favor amending our Constitution to prevent it. I have several reasons for this:

1. The Full Faith and Credit Clause would seem to work the same way whether a state legislature passed the law or the judiciary did so. So if, instead of Goodridge, we instead had the Massachussetts legislature change their laws to allow gay marriage, the FFC would seem to require other states to recognize that (this assumes, as has been argued, that the Defense of Marriage Act will be ruled unconstitutional, thus the need for a constitutional amendment). As such, though it is upsetting to me that a court has created the right in this case, the broader federalism "problem" is not really caused by the court's involvement, but by the Full Faith and Credit Clause in the Constitution itself.

2. As hesitant as I am to have activist judges, I'm even more hesitant to amend our fundamental legal document. The idea of inserting an amendment on marriage (of all things!) seems like a tremendous overreaction and would degrade the document itself. On some issues (let's take abortion for example), I can see why those upset by judicial activism might be SO upset as to want to amend the Constitution. In their view, there are millions of lives at stake. In the case of gay marriage, I just don't see the worst case scenario (judicially mandated gay marriage in every state) being so horrible even to those who oppose it on policy grounds (e.g. not the procedural judicial restraint grounds I've endorsed above) that it would justify changing the Constitution. Amend it to abolish slavery, yes. Amend it to abolish abortion if you think abortion is murder, fine. But to prevent gays from being able to get marriage licenses, file joint tax returns, buy homes in tenancy by the entirety? That's worth changing the Constitution over?

3. It restricts future legislation on the issue. This gets tricky. As I've said, my first choice would be for courts to restrain themselves, and for every legislature in America to pass gay marriage laws. But let's assume that's impossible. Before that could happen, we'll have one of two scenarios. Either: a) the courts find a constitutional right to gay marriage, and this prevents legislatures from banning gay marriage; or b) a constitutional amendment is passed banning gay marriage, and this prevents legislatures from legalizing gay marriage.

Now I know there are lots of interpretations of the various proposals for the language of an amendment, and many are intended/claimed to respect the legislatures' right to legalize gay "civil unions" (but not marriages), while preventing judicial activism. Nonetheless, I've also seen interpretations (here is Jack Balkin's) that suggest the amendment would really go so far as to prevent government officials (judges, administrators, executive officals, legislatures, etc.) from really giving "civil union" partners the "legal incidents" of marriage that are embodied in family law, property law, etc.

So to a large extent, I see the judicial activism vs. Amendment process as a wash in terms of upholding legislative supremacy and states' rights. One route prevents legislatures from banning gay marriage, one route prevents them from legalizing it. I can't favor either.

If you've gotten this far, I apologize for not being able to sum this all up to some neat philosophy or normative prescription. I'm as lost as these remarks probably make me seem.

Even More Strange

Eugene Volokh thinks that this argument from Dahlia Lithwick's article on Bush and the FMA is strange:

The political reality is even more compelling: A Defense of Marriage Amendment would enshrine, for the first time, language of intolerance and exclusion in a document that was intended to set forth basic rights. Does President Bush really want to be remembered as the guy who first used the Constitution to codify bigotry?

Professor Volokh thinks it is strange because President Bush obviously doesn't think of it as bigotry. I think it is strange for another reason. Lithwick seems to have forgotten a couple of passages that went like this:

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.
The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

Little thing called slavery. Some would call that "language of intolerance and exclusion in a document that was intended to set forth basic rights." I'm not disagreeing with the spirit of Lithwick's argument (at least not in this post), just the hyperbole.

UPDATE: Speaking of hyperbole, look at her first sentence:

[T]he fight over gay marriage will polarize this nation in ways that will make the abortion rights battle fade to a happy memory...

Uh huh. Don't mean to pile on Lithwick, she gets a lot of flak. But that is really dumb.

Jim Crow and the Power of Law

Very interesting lecture from Michael Klarman today on the role that law played in the Jim Crow era. His thesis is essentially that even if the Supreme Court had been striking down the various segregation and discrimination laws, the power of social norms and customs, economic power, and physical power would have accomplished the same ends. As such, the law wasn't playing all that strong a role in creating the horrible racial disparities that we look back on with such regret.

Of particular note to the blogosphere, Klarman cited Volokh Conspirator David Bernstein as a leading libertarian advocate for the (paraphrased) position that law played a pivotal role, and that these positive discrimination laws AND the underlying legal complicity in the physical violence (i.e. refusal to prosecute whites for racial violence) can be blamed for the uniform discrimination and disparities. From what I gathered, the argument would be that without these laws (and with proper protection of blacks' rights of life, liberty, property, and contract) the marketplace would have worked out most of the problems itself. It would gradually become less and less economically feasible to exclude blacks (think of railroads that wouldn't have to have separate cars, or colleges that wouldn't have to have separate dorms) and the market would ensure much greater equality.

From what I gather, much of the impetus for this debate (other than pure historical interest) is based on the justifications for the positive civil rights laws of the 1960s and since. If it was merely the laws of the Jim Crow era that prevented the market from curing itself, then there should only be positive government action to the extent that it eliminates such market interference. If you buy Klarman's argument, however, that it was non-legal forces that drove Jim Crow, then you might think it insufficient just to leave the market to take care of itself, and thus favor civil rights legislation and government enforcement.

I'm not well read in this area, but I will admit to being unpersuaded by either side completely. I do think it a little hard to imagine the market necessarily taking care of itself, but I also think Klarman does not give enough weight to (though he did not acknowledge) the power of the state's complicity in the violence, fraud, and other measures that Klarman attributes so much power to. If the government had offered protection from those things, as I think any libertarian would agree it should, then it becomes much easier to see how much power "law" had in the Jim Crow era.

It sounds like, after I finish reading Klarman's book (which makes up a big chunk of our assigned reading for this class), I ought to take a look at a few of Bernstein's articles. I'm very glad to get some non-blogosphere exposure to his work.

UPDATE: Professor Bernstein has responded with some clarifications and links for further reading. Thanks Professor!

The Future of Lawrence


Interesting analysis from Legal Times on the future of Lawrence:

Recent lower court decisions in cases from Kansas and Florida that limit or criticize Lawrence are beginning to suggest a more complicated path ahead for gay rights advocates, with detours and reversals likely -- along with victories like the one in Massachusetts. Other cases on the horizon, involving issues like gays in the military, a ban on the sale of sexual aids in Alabama, and even anti-polygamy laws in Utah, will also give lower court judges a chance to put their spin on Lawrence.

Eventually, one or more of those cases will make it back to the Supreme Court, and some predict that the justices will feel compelled to speak again on gay rights. Depending on the Court's composition when that new test arrives, it could reinforce -- or weaken -- Lawrence.

Indeed, while I think it is still true that Lawrence was a clear cut victory for gay rights, it has become increasingly unclear just what the scope of that decision will end up being. Some, and I'm thinking particularly of Randy Barnett, saw in Lawrence signs of a new liberty-based approach that would seem to suggest a broad reach into the areas mentioned in the new cases above. Yet it is not hard to find language in Lawrence suggesting a narrower scope:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

Now this of course is no guarantee that the same forces behind the Lawrence majority would not rule the same way in these other cases, but it is clear that they left it unanswered for now. It also seems that many of these judges were, like myself, less than impressed the more they read Kennedy's Lawrence opinion:

"What judges seem to be saying is that Justice Kennedy may be too rhetorically poetic for his own good," says Emory University legal historian David Garrow, who has studied the Court's privacy jurisprudence. "It may sound winsome as moral commentary, but as black-letter constitutional law, they are not impressed."

Garrow then goes on to analogize this post-Lawrence phase to the post-Brown era in which lower courts narrowly construed or even openly defied the Supreme Court. Yet I'm not so sure that it's an analogy that stands up upon closer scrutiny. First of all, the resistance to Lawrence is not nearly so clear. If Texas had continued to criminally prosecute gays for the crime of sodomy, and lower courts had upheld this (the way that courts upheld continued segregation), then I could easily foresee a Cooper v. Aaron-like smack from above.

Yet that is not really what we're seeing. Instead we're seeing debate in the gray areas that Lawrence explicitly left unanswered, so I doubt we'll see the same sort of indignation that a unanimous Supreme Court mustered when it lower courts and state/local officials openly challenged its authority after Brown.

court.gifIt's also not entirely clear how far a pair like O'Connor and Kennedy will go along this route. O'Connor wasn't even willing to buy into the majority opinion in Lawrence, and it is of course very difficult to predict what she'll do in the future. If she sticks with an equal protection approach, will she reach the same results as a privacy/liberty due process approach? Will Kennedy stick to his guns and extend Lawrence? I just don't think we can answer these questions, and that makes it hard for me to imagine the Court becoming indignant enough to slap down the lower courts. (And of course, this assumes the court make-up stays the same. A Bush re-election and an O'Connor, Stevens, or Ginsburg retirement could change the calculus completely).

I have neither the capacity nor inclination for predicting where this jurisprudence will go, but I think it unlikely we will see a Cooper v. Aaron-like clarification that would answer all the questions at once (and of course, even that decision left issues of de facto segregation, disparate impact, and affirmative action open for decades to come).

I just can not believe that Justice Kennedy or the other Lawrence-majority judges are committed to a liberty-based approach that would allow incest or polygamy, yet it remains unclear what sort of constitutional doctrine will be able to delineate between these things. As a result, I think the Supreme Court will simply not review the more difficult cases for a while; are there really 4 votes on the court to hear such cases? I suspect they will let the doctrine simmer in the lower courts for some time before they get involved in gay marriage, gay adoption, or any of the incest/polygamy line of cases. We'll just have to wait and see.


Another Rice Grad is right, I do agree with this description of Justice O'Connor:

The question to ask is should she be the most powerful woman in American history? Should we have an unelected person making these final decisions for American society on a lot of these different questions? And it's true she is a moderate in the sense that she likes to be in the middle. But the problem with that is that makes her very politically powerful. The problem is that she doesn't have any real judicial ideology. She doesn't really have a consistent theory that she brings to the law, she just likes to, I think, be in the middle, to be in the center of a court that's fairly polarized, that makes her the center of attention, people craft arguments at the Supreme Court to appeal just to her. But that isn't really law, is it, that's more politics. It deprives the court of speaking with a consistent, coherent judicial ideology.

I think some of this came across in my criticism of her Grutter opinion last year, and I felt the same way about her "split the difference" approach in her Lawrence concurrence. There is an unfortunate extent to which I think O'Connor has hijacked the court in a way that "swing voters" in the past (think Stewart in the 60s, White in the 70s) never tried. Because she is so fond of what I call splitting-the-difference (even when there is no defensible precedent or legal theory for ending up in a compromised and muddled position; e.g. think of her 30 years compromise on affirmative action), she is leaving us particularly worse off. The country has a hard enough time reacting to split decisions that may go the other way as soon as a justice retires, and there is not much to do about that. But O'Connor's obsession with carving out the smallest possible ruling almost guarantees a lack of guidance and endurance for her opinions, and betrays the hope that our justices are at least guided, if clearly not controlled, by something other than political preferences.


David Bernstein says we should have second thoughts about Claude Allen's nomination to the 4th Circuit because he once worked for Jesse Helms, and Helms was an unreconstructed racist. Even leaving aside the arguments about whether Allen is somehow "tainted goods" because of this connection , this seems like a strange reaction.

I'm not saying Allen is necessarily qualified for the job (a cursory review of anti-Allen websites suggests he lacks anything near the requisite experience), but I'm confused as to how keeping another black man off the appellate bench strikes a blow against Jesse Helms' abysmal civil rights record.

UPDATE: Another Rice Grad agrees with me. Or I agree with him.

UPDATE II: Bernstein has posted an update/elaboration, and I'm very satisfied by the elaboration. I'd likely oppose Allen's nomination on ideology-neutral grounds (he just doesn't seem qualified) rather than those Bernstein lists, but that stems more from my desire to ratchet down the partisanship of these nominations/confirmations than anything else.

Solos & Small Firms is running a feature on the practical matters of solo and small firm law practices. This is an area largely ignored by law school students, who either get wooed by the big firms or, in the rare case, choose to go with some sort of public service or public sector job. Particularly in this era of big firm mergers and "full service" practices, things seem to be favoring the bigger firms. But this is apparently not the whole story:

Initial signs are that, generally, business is good. By practicing the economies of scale that small-firm life allows, most firms are keeping up with the competition if not outdistancing it.

I'm not sure exactly how an economy of scale argument would favor smaller firms over larger ones, but let's just accept that business is good. There also seem to be a lot of advantages that aren't self-evident at first glance, and that appeal to me as someone who is not particularly interested in ending up working primarily as a manager or supervisor:

Small firms can have great strengths. The few principals in charge can exercise direct control on every aspect of each case. A partner in a small firm still can actively participate in the profession of law, not merely supervise what has become the business of law... We personally handle all aspects of trial preparation that in a large firm would typically be delegated to a team of associates and paralegals. We know that no matter how much help we might have available in our office, when the case goes to trial, it's on our shoulders. Our personal reputations are on the line, as is the liberty -- and sometimes the very lives -- of our clients.

Sounds very exciting, very challenging, and very fulfilling. As long as you're going to put in a lot of crazy hours, you might as well have the responsibility and frontline experiences to go with it.

New Clerk Blog

Via Larry Solum, I'm glad to see the blogosphere has added a new appellate clerk to its ranks. Calling his blog Legal Fiction, the pseudonymous Publius describes himself as a "southern, non-Federalist Society law clerk." From the looks of his first posts, he appears to be less curmudgeonly than my other favorite clerk. He has an interesting post up comparing originalism and religious fundamentalism, strong evidence that we can expect interesting and original posts from this new blog.

He also mentions that he has a joint JD/MA in Legal History. UVA has such a program; I wonder if the ranks of Virginia Law bloggers has also increased?

Deputy Solicitor General

Interesting profile of Paul Clement, the man who has been defending the government's positions in the various enemy combatant cases that have been rising up through the federal courts:

In a three-week span late last year, Clement appeared before the U.S. Supreme Court in a pivotal age discrimination case; before the 2nd U.S. Circuit Court of Appeals in New York defending the detention of enemy combatant Jose Padilla; and before the 4th Circuit in Richmond, Va., in the case of alleged 9/11 conspirator Zacarias Moussaoui.

My goodness, that sounds both tremendously exciting and absolutely dreadful. Preparing for one oral argument on a fake issue before a panel of alumni was enough to make Legal Writing a bit of an ordeal, though perhaps my hostility arose because it was a fake issue before a fake panel. I never liked mock debate.

Clement has a very interesting and impressive resume, having worked at Kirkland & Ellis in DC before moving to a staff position with John Ashcroft's Senate office, and then back to the private legal world as a partner in the DC office of King & Spalding. That's rather uncommon, I think, but certainly something to look into for those with the credentials and the interest in bridging the legal and political worlds.

Snarky Casebook

I'm not necessarily complaining (yet), but the author(s) of my tax casebook are noticeably more snarky than those of any other text I've used in law school:

No matter how unjustified a tax break may be, if people have relied on it for long enough they will resent giving it up and, if asked to do so, will complain to their representatives in Congress about how they are being unjustly treated, about the adverse economic effects of the proposed change, and, in general, about how nobody respects or appreciates them.

Sheesh, somebody has an axe to grind with the American taxpayer. Think maybe he spent a summer as an intern on Capitol Hill answering a congressman's phone?

Tax vs. Spend

An interesting analysis from page 3 of my Federal Income Taxation casebook (this class is going to be fun!):

Even when the use of the tax system [to encourage particular kinds of economic activity] is less effective than direct government expenditure, politicians and voters often prefer it to direct expenditure because it looks different. Suppose that a company is paying income taxes of $10 million per year, and that someone wants to propose a subsidy for a particular type of investment that will give that comany $6 million a year. Using the tax system to deliver the subsidy permits its advocates to call it a "tax cut" rather than a "spending increase." This may be politically advantageous even though the company's net payment to the government is $4 million either way.

Intuitively I already understood this, but I had not laid it out quite so clearly. This also respresents somewhere close to the limit of my knowledge on taxation, so I'm really excited for this class. I'm taking two constitutional law classes, and that has certainly been my main field of interest. Yet there are diminishing returns on such classes, as there is always quite a bit of overlap between them and they all involve the same basic principles of decision-making.

Tax, however, represents a whole new challenge. If I enjoy it as much as I anticipate (I can be a little masochistic that way, Civil Procedure has been my favorite class so far), perhaps classes that looked similarly distasteful at first glance will become more attractive.

Mr. Geidner's Unjustified, Unwise Attacks

En Banc co-blogger Chris Geidner has stirred up a mini-controversy with his recent Findlaw column criticizing three law professors "for comments they have made supporting a civil-union compromise in Massacusetts." In particular, Chris criticized Harvard Law Professor Laurence Tribe for telling the Massachussetts legislature that "civil unions might be enough to flip one of the justices in the majority, in the wake of political leaders' outcry against full-blown gay marriage."

Well Professor Tribe has objected to Chris' portrayal of the events, and Chris has written a response. What is most interesting to me, and not available to Professor Tribe unless he is a longtime reader of this blog, is how closely Chris' criticism of these professors tracks his attack on Professor Volokh as being either a "cowardly lion or irresponsible academic."

I'm going to lay out why Chris' reaction in both cases is unjustified, but I'd also like to suggest that, even if somehow justified, the reaction is unwise.

Continue reading Mr. Geidner's Unjustified, Unwise Attacks.

Court Orders Transfer to Civilian Authorities for Padilla

CNN has this breaking news:

Federal appeals court rules terror suspect Jose Padilla must be released from military custody as an enemy combatant within 30 days but may be transferred to civilian authorites.

Intriguing. Howard Bashman has the details, but the thrust of the 2-1 decision by the 2nd Circuit seems to be this:

The President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.

For those of us taking our Foreign Relations Law exams tomorrow, this is a tremendous decision that could even subvert one or more of the professor's questions (as well as having some impact on Padilla). The courts have been incredibly reluctant to impose restrictions on the President's foreign relations power under Article II, but it appears that three areas were important to this court: 1) citizenship of defendant; 2) location of capture; 3) lack of explicit Congressional authorization:

Continue reading Court Orders Transfer to Civilian Authorities for Padilla.

Rehnquist's Legacy

There was a lot of speculation last year, and earlier this year, about why Chief Justice Rehnquist didn't retire now that a Republican was in office. One of the arguments suggested that Rehnquist was not finished securing his legacy, that he saw a number of controversial and unfinished issues that he wanted to have a role in.

Well reasonable people can differ, but I'd say Rehnquist must be pretty damned disappointed. He lost in Lawrence v. Texas, he lost in Grutter v. Bollinger, and he lost today in McConnell v. FEC. Somehow Rehnquist has, after 17 years as Chief Justice, managed to position himself in the minority on the biggest cases of his last couple terms. I even thought he'd vote in the majority in Lawrence, so sure was I that Rehnquist couldn't possibly want to exit the court in the minority on that case. So what can we gather? Perhaps Rehnquist doesn't care about being in the minority, or doesn't care about this so-called "legacy." Maybe he views his legacy in terms of jurisprudential consistency rather than "winning cases." Or perhaps he has just badly misjudged the leanings of his court on these issues.

Supreme Court Upholds 'Soft Money' Limits

FOXNews is running this Breaking News headline: "Supreme Court Upholds 'Soft Money' Limits." For details on this case (McConnell v. FEC) check here.

UPDATE: The CNN story has better details. Calling the court "sharply divided", it says Justices Stevens, O'Connor, Souter, Ginsburg and Breyer formed the majority to uphold the soft money ban and the pre-election ad restrictions. Very interesting! I'll be back with more once I've read the opinions.

UPDATE II: Ok, scratch that. There is no way I'm reading the majority opinion. It is 119 pages long and I'm in the middle of finals (the ruling as a whole is 300 pages). If you want to read them yourselves, you can find it here, and I'm sure we can expect excellent coverage from Rick Hasen. A cursory review of court-watcher expectations suggests that, once again, O'Connor proved to be the decisive vote (and once again helped write the decision).

UPDATE III: Am I the only one that feels like this is pretty anti-climactic? I mean, back when people thought McCain-Feingold would actually help reduce the flow of money to campaigns (did anyone believe that?), this case seemed like it would be a big deal. It would be the lynchpin that might either restrict or unleash the flow of a lot of money. But as we've seen, the new law simply channelled the money into new "unaffiliated" groups (Soros et al) and increased the ability to raise hard money. So while this case could certainly prove important for our understanding of campaign spending limits and the First Amendment, I think it had become less important and urgent in terms of the current election cycle (which is why it had been fastracked to SCOTUS). Anyhow, I'm sure it'll provide interesting classroom fodder for Lillian BeVier when she teaches me Speech and Press next semester.

Budget Cuts Hit Home

Looks like the budget crisis is having a pretty direct effect on our judiciary:

Federal court executives in South Florida and across the United States have begun to lay off and furlough workers as Congress looks for ways to prune a budget laden with national security expenses.

As many as 1,000 court jobs are on the line nationwide, according to a spokesman for the Administrative Office of the U.S. Courts in Washington, D.C.

I'm not particularly knowledgeable about the internal workings of the federal judiciary, but something tells me that significant staffing cuts will not be helpful considering the backlog on many dockets. In some state systems, the budget crisis is also manifesting itself through mandatory fees for public defenders. Well, maybe if we give some corporate welfare to energy companies, or create a huge new Medicare entitlement. Yeah that sounds good for the economy.

Ramblings on Gay Marriage, the Judiciary, Churches and Constitutional Amendments

Via Howard Bashman, I see that Stuart Taylor has written a column in the National Journal which comes pretty close to explaining where I stand on gay marriage and why:

As a policy matter, gay marriage is an easy call. I'm for it.

The constitutional question is much harder. The main reason is that a decent respect for government by the people should lead courts to defer to popularly enacted laws that embody deeply felt values -- including laws that make no sense to the judges -- unless the laws violate clear constitutional commands or fundamental rights. It is frivolous to claim that the marriage laws of every state and every civilization in the history of the world violate any clear constitutional command. And it is a stretch to claim that they flout fundamental rights.

Read the rest of the article for further discussion, most of which I agree with. The rest of this post will be a lot of rambling about the thoughts that I'm having about various questions raised by this case and resulting conversations.

Continue reading Ramblings on Gay Marriage, the Judiciary, Churches and Constitutional Amendments.

Powell's Uneasiness With the Death Penalty

I'm down to the short strokes on my paper, but I've just run across a very interesting anecdote about Justice Powell's uneasiness with the majority opinion in Gregg v. Georgia upholding the death penalty. This comes from the biography of Powell written by my law school's dean, John Jeffries:

The backlog on death row was large and growing. Roughly half of these sentences had been imposed under laws that would be upheld. When they were, the executions would begin in earnest. Powell feared a bloodbath and was looking for a way out.

This is hardly unusual. Several of the justices had very mixed feelings on the death penalty, switching their vote multiple times in that decade (Blackmun, White, Stewart). But Powell's proposed solution seems astounding:

Continue reading Powell's Uneasiness With the Death Penalty.

Speaking Past Each Other

Will Baude has a response to my defense of PG and Ampersand, but I still think that he and I (and thus the Clerk and PG/Ampersand) are talking past each other.

First, he reiterates a point that no one disagrees with:

As The Clerk further points out, not only have the VFW not violated anybody's rights, but anybody who tried to make them do otherwise would be violating theirs.

We understand this. That's why no one is arguing that they should be forced to change their message. That's why WE are exercising our First Amendment rights in criticizing their actions. Because that is the proper way to attempt to change the VFW's views on the issues, by showing them that their actions engender disgust or disagreement.

Continue reading Speaking Past Each Other.

Speaking Past Each Other

Will Baude has a response to my defense of PG and Ampersand, but I still think that he and I (and thus the Clerk and PG/Ampersand) are talking past each other.

First, he reiterates a point that no one disagrees with:

As The Clerk further points out, not only have the VFW not violated anybody's rights, but anybody who tried to make them do otherwise would be violating theirs.

We understand this. That's why no one is arguing that they should be forced to change their message. That's why WE are exercising our First Amendment rights in criticizing their actions. Because that is the proper way to attempt to change the VFW's views on the issues, by showing them that their actions engender disgust or disagreement.

Continue reading Speaking Past Each Other.

Michael Newdow has a profile of Michael Newdow, the plaintiff/lawyer in the upcoming Pledge of Allegiance case before the Supreme Court:

[I]n the case of Elk Grove Unified School District v. Newdow, No. 02-1624, Newdow's tangled tale remains front and center. In part, that is because his ongoing custody dispute is key to whether Newdow has standing to challenge the Pledge -- an issue the Court has asked the parties to brief and argue. The Court could easily avoid the Pledge issue altogether by viewing the custody matter as too unsettled to grant Newdow standing.

But Newdow has also kept himself at the forefront by insisting, against the advice of many of his natural allies, that he should be the one to stand before the justices and present the case. His motion to argue the case himself is pending before the Court, and his quirky demeanor could lead the justices to appoint someone else to argue for him. In some of his filings, for example, atheist Newdow refers to himself as "Rev. Dr. Michael Newdow" of the oddly named "First Amendmist Church of True Science."

Newdow's solitary persistence has paid off so far. He argued and won before the 9th U.S. Circuit Court of Appeals. At the Supreme Court, Newdow has already picked off one likely opponent -- Justice Antonin Scalia -- by taking the risky step of asking Scalia to recuse. Scalia, who had criticized the Pledge challenge in a speech in January, took himself out of the case. Newdow has a far better chance of winning before an eight-member Court.

He sounds like a very interesting man, if troubled at the very least. I do think it's nice to see the story behind the case, something which often doesn't come across very well. Not many people know that Ernesto Miranda was conviced again even after the Supreme Court threw out his conviction (and that he was murdered ten years later). Or that the couple in Lawrence v. Texas was interracial (only important if you think, as I do, that it might have played a role in them being prosecuted). One of the best books along these lines is Anthony Lewis' Gideon's Trumpet, which I had the pleasure to browse as I did research for my seminar paper. I recommend it, and urge court-watchers to consciously seek the stories behind these cases. Sometimes they are just as instructive as the legal arguments.

Future Guilt

In Leo Katz's "Criminal Law" contribution to the Blackwell Companion to Philosophy of Law and Legal Theory (which comes across like an advertisement for a book he wrote around the same time), he puts forth an interesting hypothetical about causation:

A man who happens to be afflicted with a frequently fatal, sexually transmitted disease, something like AIDS, and who knows that he is afflicted with this disease, nonetheless has intercourse with a woman without first warning her. He infects her, though luckily she never comes down with a full-fledged version of the disease. In addition, however, to infecting her, he also impregnates her. The child that comes of this union also carries the fatal disease and dies within a year of its birth. The question for the court is a simple and basic one: is the defendant guilty of homicide, specifically, has he committed involuntary manslaughter, or perhaps even murder?

Well my first instinct was "yes, of course!"

Continue reading Future Guilt.

Market Distortions

While in Chicago yesterday I had lunch with an old fraternity brother who now works in the re-insurance business. We ended up talking quite a bit about tort reform, which led to a broader discussion about government regulation/intervention, and I walked away from the conversation with a lot of questions, and few answers.

One of the things that bothered me most was that, as far as I can tell, he was quite right to bemoan emergency disaster relief granted to those who fail to sufficiently insure their property. His claim was that the end result of such relief is that it lowers the incentive to properly insure in the first place, and that it stunts the market's ability to tell people where they should and should not be living. If the people living in the Mississippi flood plains cannot afford flood insurance because it is so expensive, the market is telling them that they ought not live there. If they continue to do so, they should bear the cost of that choice. Instead, emergency relief forces you and I to bear the cost of their choice.

I countered with the simplistic claim that, even if that logic is correct, our society has evolved to a point where we're unwilling to let those struck by disaster freeze or starve to death, even if they are unwilling or unable to insure. And of course, this led us straight to what I see as the crux of the welfare state debate. By its very nature a welfare system distorts the market. We like this when it prevents people from starving. But the more I thought about it (and this was after reading the Contracts and Tort chapters of Patterson's Companion to Philosophy of Law), the more upset I got that the other big effect of the system is to relieve individuals of responsibility for protecting themselves. Do I sound like a 1994 Republican or what?

Anyhow, it was a very interesting conversation and has left me feeling a bit dazed. I've always struggled to mesh my social libertarianism with my more collectivist economic leanings, and this is just another blow.

Solum's Legal Theory Primer

Larry Solum has another entry in his excellent "Legal Theory Lexicon" series; this time he discusses utilitarianism.

For those who've missed some of these brilliant primers, check out his Legal Theory Lexicon archive for previous posts on The Prisoner's Dilemma, The Veil of Ignorance, Holdings, The Reasonable Person, Hypotheticals, The Coase Theorem (why oh why didn't he write this a year ago?) and the Ex Ante/Ex Post distinction.

The Legacy of Lochner

Nathan Newman has another spirited response to David Bernstein's defense of Lochner. I happen to think it just plain stupid for Justice Janice Brown to have defended Lochner, in the same way that it would be stupid to criticize Brown v. Board of Education, or to argue that women shouldn't be protected by the 14th Amendment (here's looking at you, Judge Bork). The position you'd be taking is so hopelessly lost to the power of conventional wisdom that you're practically handing your opponents the rope with which to hang you.

Circuit Court Misconduct

Via Sebastian Holsclaw I see that Congressional Republicans are investigating 6th Circuit Chief Judge Boyce Martin for alleged misconduct in the Grutter affirmative action case. The details are complicated, but it basically amounts to an allegation that the Chief Judge inserted himself improperly into a 3-judge panel hearing motions on the case, and then violated procedural norms in order to prevent two conservative judges from sitting on the en banc panel (and thus potentially making it a 6-5 decision striking down Michigan Law's affirmative action plan, instead of the actual 5-4 decision upholding the policy).

I don't know enough about the procedures of the 6th Circuit to make an informed judgment, but I do remember reading the concurrences and dissents in the 6th Circuit decision (288 F.3d 732), and they reflect an unusually (I hope) large amount of intra-court hostility, and a rare public airing of dirty laundry. The first strike was a "Procedural Appendix" to the dissenting opinion of Judge Danny Boggs.

I think it is important to note that Boggs is no stranger to accusing his fellow judges of procedural misconduct; in that case he called a senior judge a liar and accused him of "virtually criminal" actions. In the Grutter case, his accusations were only marginally less strident:

Continue reading Circuit Court Misconduct.

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.

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.

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.

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?

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.

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.

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.

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?

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.

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.

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.

The Future of Litigation 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.

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.

Good for the 9th Circuit

I have to say I'm very much in favor of the en banc ruling reinstating the California recall. I think that, absent gross violations of statutory law or Constitutional rights, courts should not be in the business of overturning recent results or postponing fast approaching elections. I wouldn't say the courts have no role in overseeing elections, of course, but their role is best oriented to ensuring long term compliance with statutory and constituonal requirements. It is also best directed to situations where the political process has become incapable of solving the problem (e.g. malapportionment). I like the 11-0 unanimous vote, avoiding the unnecessary rancor that Judge Pregerson engaged in and probably hoped to see in a dissent or two. Right or wrong, Bush v. Gore is an unfortunate and divisive case in our judicial canon and should be put aside as far as possible.


I've camped out in the law school library to study today, something I haven't done since the first few months of my first year. I just haven't been able to make myself work at home, for whatever reason.

I'm chugging through Evidence, and I think I've uncovered a big source of my displeasure. The casebook is terrible! First of all, the authors (Waltz and Park) wrote nothing in the book (except when they quote other articles they've written). It is simply a compilation of cases and treatises strung together with the occasional hypothetical inserted for good measure. The chapter on hearsay begins without any introduction to the basic definitions, simply launching straight into the marginalia and controversies. I just read 25 pages which literally encompassed 20 different cases and treatise excerpts, none of them stating "Hearsay is...."

Fortunately, my professor (Graham Lilly) wrote a hornbook on the subject, and it is a true pleasure to read. Evidence really is quite fascinating, now that I understand it.

I love the hearsay rule, if for no other reason than that it seems like a skilled attorney ought to be able to get just about any evidence in through some loophole or exception. And now that I've read Lilly's explanation of the rule itself, I can appreciate the casebook's detour into the gray areas.

So the moral of the story is that one ought not be led astray by a shitty casebook. Find a good supplement or hornbook, and discover whatever pleasure is available in the subject.

That Crazy Court

Looks like the 9th Circuit is at it again:

A federal appeals court has blocked the October 7 California recall, but stayed its order for seven days to allow an appeal.

The ruling from the 9th U.S. Circuit Court of Appeals follows a hearing last week in which the American Civil Liberties Union sought a postponment of the vote.

The ACLU argued that election officials should have more time to replace antiquated voting machines in several California counties.

If Monday's ruling stands, the recall vote would be moved to March 2004.

Would this be good news for Gray Davis or Bustamante? I think it would then coincide with the CA primary, which ought to bring out a lot more Democrats than an off-year November election.

It'll be interesting to see a) If the Supreme Court interjects itself into another state election, and b) if they do, what weight Bush v. Gore has in the arguments.

The Death of Federalism, Part 4234

It used to be that education was among the most locally decided aspects of a community's social structure. With the rise of public education, governance began passing to larger and less local bodies: school boards, counties, and the states. It also used to be that some people objected to this centralization, and were particularly hostile to moving any power to the federal level (remember when they used to talk about abolishing the Department of Education?). Well that's all gone. Now the federal government will begin testing teachers to ensure they meet the standards of what we can now call the "American public educator."

The idea that a federal program can ensure the quality of teaching at the level of individual schools is absolutely inane. If there is one area where different communities require different solutions, it must be public education. I can live with the level of state control, but this federalization seems like a dead end. There's got to be a better way.


I want to give kudos to the 8 associate justices of the Alabama Supreme Court who have stepped up and ordered the removal of the Ten Commandments monument in their rotunda:

I'm not sure whether they had any legal obligation to make this decision (since it was a federal case), but it is most welcome as a reflection of Moore's disgusting disregard for the role of law in our society and the oath that he took upon coming to the bench.

Yesterday, Yglesias pointed out that this all seems calculated merely to boost Moore's political ambitions. In the comments, I posed a query that seems to have been lost in the shuffle, so I'll repeat it here.

This sort of politicking only seems to work in the South, at least as far as my knowledge extends. I can think of several civil rights-era Southern politicians who made their name by defying the Court, but no equivalent examples in Northern states. If others have such examples, please enlighten me.

Dangers in Labelling

During his introduction to the the course, Professor G.E. White laid out his objections to the labelling of Supreme Court justices as 'liberals' and 'conservatives.' For one, it obfuscates the differences between political and judicial flavors of liberalism and conservatism. In addition, the labels attempt to apply contemporary definitions to historical periods so different from our own that the labels fail to convey anything meaningful. Was Frankfurter a liberal or a conservative? Holmes? Does that mean a judicial liberal (e.g. an activist) or a political liberal (e.g. a New Dealer)?

I can certainly understand the use of such terms by those making generalizations, or those without access to or understanding of the full historical context of the times. But I think White makes a very good point as it concerns historians, legal academics, and law students. We don't have the excuse of ignorance, and shouldn't make the excuse of laziness.

Quite a Summer

I've been flipping through Gideon's Trumpet to see if it offers anything helpful in my research, and stumbled upon a previously unknown bit of legal trivia: while a law student at Yale, John Hart Ely worked his 2L summer in the law offices of Arnold, Fortas, and Porter and spent two full months doing research on a little case called Gideon v. Wainwright, which Fortas would argue and win, consecrating the indigent defendant's right to counsel in state criminal cases. Ely, of course, went on to become a leading constitutional scholar.

Justice Powell's Legacy

I meant to link to this last week. My boss has an op-ed in the Legal Times (registration required, blah!) on the legacy of Justice Powell's opinion in Bakke and vote in Bowers as related to the most recent term's decisions in Grutter and Lawrence. She clerked for Powell during the term in which Bowers was decided, and has some interesting insights:

For some of us, Bowers was a debacle not merely because we disagreed with Powell's vote, and some of us did passionately disagree. Rather, the experience haunted us because, when all was said and done, Powell discovered that he disagreed with his own vote. We got it wrong because we failed to help him find the position he wanted to take.

Over the years, we've been asked a lot of questions about Bowers. Trust me, your cross-examinations have been mild compared to the grillings some of us have given ourselves. When working on Bowers, why didn't we think longer, harder, and, for crying out loud, better? Lewis Powell was a great judge because he knew that heaven and earth held more things than he had dreamed of. Before deciding, he (almost) always looked for the holes in his philosophy and experience. For the Bowers clerks, the problem was immediate and excruciating. Powell had worked with gay clerks both before and during the Bowers term. Yet he did not know that he knew gay people. He has been criticized, even derided, for this blind spot. Some of that criticism is fair.

But, in his generation and for many years after, "don't ask, don't tell" was not inscribed merely in military policy. The hearts and minds of a whole culture were in the closet, as were many gay people themselves. But we knew that Powell was vacillating, and he needed our help in understanding the value of gay sex, intimacy, and love. Why didn't we try harder to fill in those blanks for him? If we were too cowardly or uncomfortable to come right out and make him understand, why not make a discreet phone call or two to the justice's former clerks? Perhaps they would speak, give Powell the advice and comfort that he needed, and he would listen. Over the years, I've asked myself these futile "what if" questions, even though it's vain to think that one heroic law clerk might have saved the day.

The registration is worthwhile, as the whole op-ed is pretty fascinating. The influence of individual clerks is hard to assess, but there sure are some interesting stories (see e.g. Edward Lazarus' discussion of Michael Dorf encrypting his computer so that Justice Kennedy's more conservative clerks couldn't interfere with the Casey plurality opinion).

Volokh in Print

I just spent an hour giving Volokh's Academic Legal Writing a first read, and it was pretty helpful. I think it'd be a bigger resource if I was closer to beginning to write (I'm still in the primordial soup of picking a topic), and if I were writing a more prescriptive paper. My seminar this fall is on legal history, and I'll most likely turn that into my law review note. In addition to being a topic I find fascinating (my conlaw professor is a constitutional historian), it is also one of UVA's strongest fields, and I intend to take advantage of that. The upshot is that my paper will likely lean rather strongly toward the descriptive side, which Volokh doesn't spend quite as much time talking about.

Exonerated Inmates

Kevin Drum has a post up about DNA testing and several commenters have brought up the Innocence Project.

In that vein, let me recommend a very troubling documentary from PBS' Frontline (which has been a major proponent of the Innocence Project) called Burden of Innocence, discussing just how helpless and damaged these men were once they were finally released from prison.

The part that really got me: they don't expunge the criminal records of these exonerated men. Instead they simply add "exonerated", and force the men to explain themselves to potential future employers:

It was a job search conducted, family members say, while bearing the burden of repeatedly having to explain his felony conviction and profess his innocence to skeptical employers. �I don�t believe that anyone really understands what the word �exonerated� means,� Miller says. �I go to a job and fill out the application, I explain to them that I was exonerated, I always get the [look], you know, like, �That word, what does that word mean?� I know that I am not going to be hired by anybody because of the rape I didn�t commit.�

I mean, of all the things we ought to be able to do for these guys (don't get me started on compensation), expunging their records so they can get a job ought to be an obvious and uncontroversial start, right?

It'll be a Close One

Looks like conservatives are getting a bit nervous about Bill Pryor's nomination. I just got this email:

The National Rifle Association rarely becomes involved in judicial nominations and only when the nominee has a clear record on the Second Amendment. Alabama Attorney General Bill Pryor's nomination for a judgeship on the U.S. Court of Appeals for the Eleventh Circuit is one of those cases. Because he has been a leading advocate of the Right To Keep And Bear Arms, the National Rifle Association - on behalf of its four million members - strongly supports Attorney General Pryor's confirmation, and we urge you to contact both of your U.S. Senators as soon as possible to express your strong support for his confirmation.

I think I'll pass.

The Marriage Amendment

Matt Yglesias has a post on the marriage amendment ban, but I think he gets a little twisted about:

If I'm not mistaken, though, this amendment would actually prevent everyone, everywhere from getting married, not just gay people.

Several of his commenters had what I consider a proper reading of the text. The amendment would allow any state to pass its own statute providing for same-sex marriages, but would prevent any judicial recourse if the state refused to do so. It's simply an effort to remove the issues from the courtroom.

Unfortunately, it also seems to prevent ANY legal challenge to such laws, so it would allow seemingly total discretion to discriminate on any basis.

The other truly strange thing that seems pretty unprecedented is that the amendment proposes to dictate the extent to which state courts can interpret their own state constitutions.

For those who don't know, most state constitutions have many of the same liberty guarantees that the federal constitution has, and have often read them more broadly than the Supreme Court. For example, many state courts overturned their own sodomy laws both before and after Bowers, and many state courts have held the police to higher standards in criminal procedure.

This really is the death of federalism.

Innocent Until Charged

The Kobe Bryant arrest has me thinking about that ever popular refrain, "innocent until proven guilty." To be perfectly honest, I'm not sure I really believe in it.

Let me be clear. As a legal matter, it is certainly the correct standard. No one should be punished by our legal system until found guilty in an appropriate legal forum.

As a moral matter, I think this is probably also true. The force of our moral condemnation should be reserved until an appropriate level of evidence is presented to demonstrate guilt. Each person will likely set a different threshold, but it will at least require some evidence.

But as a factual matter, I must confess that I tend to believe that if you are charged with a crime, you are quite likely guilty of that crime. I will reserve my legal and moral judgment until I've seen more evidence, but I think that once someone is charged with a crime they are transferred to a holding pattern of sorts. They are no longer innocent like you or I are innocent. They are "awaiting judgment", and particularly when it seems that a prosecutor has devoted considerable thought to whether to bring charges, the existence of those charges inclines me to no longer assume that the person is innocent in the same way they were before charges were brought.

I know this isn't very structured or clear, but it's an intuition I'm having about my own reaction to the Kobe Bryant case. I wouldn't fire him or jail him without evidence, but I also wouldn't let my daughter (if I had one) go near him (assuming I would have before this incident). So that suggests something has changed about my feelings toward him, and I certainly no longer assume he's innocent in the way I did before I'd heard about this charge.

Isn't that true for anyone else? If your neighbor was charged with a sex crime, you'd no longer let my children play at his house. Yet you probably wouldn't advocate jailing him or firing him without a proper legal trial. Is that right?

So it seems there must be some gray area/holding pattern that we put people in once they are charged (or even just accused?) of crimes, a pretty big modification of "innocent until proven guilty."

UPDATE: I'm not really concerned with whether people agree with me on the Kobe Bryant case in particular, it's just what got me thinking about the issue. What I'm more interested in is the phenomenon generally. So the "neighbor charged with a sex crime" is probably a better test case. If you had children who normally played at a neighbor's home, would you continue to let them do so after he or she'd been charged with a sex crime (but not tried or convicted)? If not, why not?

So That's How it Works

Here's some brilliant insight into the workings of our legal system:

Toobin: Evidence will determine Bryant's fate

Oh that's right! Evidence!

Depressing Rape Laws

For those who think I'm just being a whiny liberal when I complain about the depressing rape laws, here's exhibit A, courtesy of the great state of South Carolina:

� 16-3-658. Criminal sexual conduct: where victim is spouse.

A person cannot be guilty of criminal sexual conduct under Sections 16-3-651 through 16-3-659.1 if the victim is the legal spouse unless the couple is living apart and the offending spouse's conduct constitutes criminal sexual conduct in the first degree or second degree as defined by Sections 16-3-652 and 16-3-653.

The offending spouse's conduct must be reported to appropriate law enforcement authorities within thirty days in order for a person to be prosecuted for these offenses.

South Carolina does have a separate law for cases of sexual battery against a spouse, but it requires "use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature" and, again, must be reported within 30 days.

What year is it?

Rehnquist on AA

Here's a good story passed on by a classmate, suggesting that despite all evidence to the contrary, Rehnquist apparently has a sense of humor:

[Virginia Law] Dean Jeffries was at the Annual U.Va. Law Washington Alumni Lunch yesterday, and he stopped to talk to us for a few minutes. Apparently, the Law School had not one, but two candidates that Rehnquist was considering as finalists for his clerk position next year. So, Jeffries put in a good word to the Chief on their behalf while he was up here. One of the two was eventually selected, but Dean Jeffries said that he kept insisting to Rehnquist that they both were equally impressive candidates and he might consider taking both of them. Rehnquist responded with a grin and said, "Oh, I think they are both very qualified, but I should only take one from Virginia. You know, in the interest of diversity."

Incidentally, I think he took one and the other is going to clerk with Justice Stevens (if he survives Robertson's prayer offensive).

History's Hindsight

I'm almost always on board with Kevin Drum, but I think he's got a pretty distorted view of historical retrospection to believe this. Speaking about the military tribunals, he says:

Our children are going to look back on this the same way we look back on Japanese internment camps and McCarthy-era loyalty oaths.

There are many ways to distinguish this from those, the most important of which is that it is almost certain that all of these people will in fact be convicted, and thus go down in our history as terrorists and criminals. As such, "our children" will likely be a good deal less concerned with what rights they had obtained or lacked. I think the same would have been true if some large percentage of the interned Japanese-Americans had turned out to actually be traitors, or if McCarthy had been right about a good deal more of his outlandish claims.

In reality, what bothers us about those two events in particular is that so many innocent people were persecuted by broad strokes of injustice. That might also be true of the larger 'war on terrorism', but it doesn't seem particularly true of the military tribunals. We might not like the way they are run, but so far I've seen nothing to indicate that they are going to being used as a broad sweep against innocent people. I don't know exactly what all of those people at Guantanamo Bay did, but I'm pretty sure most of them are not innocent in the way the Japanese-Americans or the victims of McCarthyism were. I've not heard a lot of serious agitation that we have incarcerated innocent people, just that we're not giving them their due rights.

That does not mean I think the military tribunals are just or wise, but rather that CalPundit's analogy seems rather short-sighted.

Remnants and Loopholes

I'm doing research on state homicide statutes, and ran across a couple peculiar provocation-related clauses that I thought I'd pass on. I think the first is likely meant to overturn old common law provocation categories, and the latter is just a safeguard against a particularly strange use of the provocation defense.

Maryland (2-207. Manslaughter):

(b)The discovery of one's spouse engaged in sexual intercourse with another does not constitute legally adequate provocation for the purpose of mitigating a killing from the crime of murder to voluntary manslaughter even though the killing was provoked by that discovery.

Minnesota (609.20. Manslaughter):

(1) intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under the circumstances, provided that the crying of a child does not constitute provocation. (emphasis added)

UPDATE: Here's another, from New Hampshire (630:1-a. First Degree Murder):

I. A person is guilty of murder in the first degree if he:
(b)Knowingly causes the death of:
(4)The president or president-elect or vice-president or vice-president-elect of the United States, the governor or governor-elect of New Hampshire or any state or any member or member-elect of the congress of the United States, or any candidate for such office after such candidate has been nominated at his party's primary, when such killing is motivated by knowledge of the foregoing capacity of the victim. (emphasis added)

Fortunately, if you didn't know or didn't care that it was the President, it's only 2nd-degree murder.

Happy Days Are Here Again

Via Talkleft I ran across this story about an Alaska judge dismissing a marijuana possession conviction on state constitutional grounds, citing a 1975 Alaska Supreme Court precedent. Well I'd never heard of this case, Ravin v. State (537 P.2d 494), but it is really something:

Thus, we conclude that citizens of the State of Alaska have a basic right to privacy in their homes under Alaska's constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.

However, given the relative insignificance of marijuana consumption as a health problem in our society at present, we do not believe that the potential harm generated by drivers under the influence of marijuana, standing alone, creates a close and substantial relationship between the public welfare and control of ingestion of marijuana or possession of it in the home for personal use. Thus we conclude that no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown.

Whoa! I'd never have believed it if I hadn't read it. A 1990 state initiative tried to make all marijuana possession illegal, but the judge in this new case apparently is holding that the initiative could not overrule a constitutional right (which seems quite right, depending on what the proper constitutional amendment process actually is in Alaska).

Academic Ann

Jim Dedman has got the goods on Ann Coulter's 1987 law review article.

Second Thoughts

I'm having second thoughts about how much I like Kennedy's opinion. I certainly like the outcome, but let's set that aside. I'm glad it was decided on privacy grounds, but I don't think Kennedy really comes out and says what he ought to have said to truly ground this in the realm of substantive due process.

Larry Solum notes that:

Scalia argues that the majority employed "rational basis scrutiny," but having read and reread Kennedy's opinion, I think this is just plain wrong. Althouigh there is ambiguity, it looks like a fundamental rights decision to me.

But that's exactly one of Scalia's attacks. He's arguing that the majority, whatever they may think, did NOT make a fundamental rights decision:

...nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual conduct were a fundamental right.

Now Scalia may just be acting deliberately obtuse, but I think what he's really saying is that the traditional application of 'fundamental rights' protection required finding something to BE the fundamental right. In this case, as Scalia points out, Kennedy merely shows that ALL sodomy was illegal throughout our history, not just homosexual sodomy. That doesn't support a 'fundamental rights' claim though... after all, what right is it that we're talking about?

Consider the Glucksberg standard for substantive due process claims:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition". Second, we have required in substantive due process cases a "careful description" of the asserted fundamental liberty interest.

So Scalia is shaking his head and wondering why the majority doesn't even mention this.

If it is NOT a fundamental right, then it is supposed to get the deferential 'rational basis' test. Scalia thinks the law clearly has such a basis, and the majority never really addresses it, since they seem to think they are doing fundamental rights analysis.

Eric Muller is equally puzzled:

That Justice Kennedy sure can write a perplexing opinion! This reads like a companion piece to his opinion for the Court in Romer v. Evans: It reads great, but when you get to the end of it and try to fit it into any of the Court's established frameworks of review (strict scrutiny, rational basis, etc.), you're left scratching your head. I'll have to think for a while about whether Kennedy's doing this on purpose in these cases about homosexuality; surely he knows what a standard of review is and how to apply it, so he must be up to something. I'm just not sure what.

What Comes Around...

CNN has more good news:

Texas jury convicts Chante Mallard of murder in death of man embedded in windshield of her car after accident. Details to come.

Smell that? That's justice.

Silly Errors

Looking at the MSNBC story again, I note this rather blatant error in their sub-heading:

Justices say it violates Constitution�s equal protection clause

Well, no. O'Connor said that. The majority said it violates the Constitution's Due Process Clause. Though both located in the 14th Amendment, they are quite different. Just for the record:

Due Process Clause (This is where we get the right to privacy that protects abortion rights and now the right to sodomy, and where the old Lochner line of cases protected economic contract/property rights):
[No state shall] deprive any person of life, liberty, or property, without due process of law

Equal Protection Clause (This is where we get the bans on racial/gender classifications):

nor deny to any person within its jurisdiction the equal protection of the laws

OK, now I feel better.

Reactions to the Dissents

Just as I had sympathy with Scalia's dissent in Romer, I once again find little to disagree with in his dissent here. I still don't agree with his conclusions, but his objections all need to be understood and internalized.

His analysis of the stare decisis incongruitites between Lawrence and Casey are hard to hard argue with, but then I didn't think those were necessary for upholding Roe in Casey. Still, I think it essentially amounts to a pretty strong attack on Kennedy, and to a lesser extent Souter (since O'Connor doesn't want to overturn Bowers).

As some commenters noted and Scalia discusses, it is now unclear how laws against incest et al can be distinguished (though his inclusion of the laws against masturbation caused a raised eyebrow). That is a valid concern, and I'm sure it'll be litigated soon enough. (Volokh has more).

I do welcome and generally adhere to his attacks on O'Connor's concurrence.

In the end Scalia and I just differ on the proper role of government and the courts. Despite this philosophical difference, I think his legal analysis is impeccable and superior to his colleagues, and I feel regret that he and I don't share more commonality in our philosophies.

I think Scalia gets more than his share of attack from people who disagree with his methods and opinions. After a year of law school, and particularly a semester of Constitutional Law, I think Scalia is one of my favorite justices. I almost never agree with him, but I think he is almost always upfront and open with his reasoning. This is something I find pretty lacking in the moderates (particularly O'Connor). That certainly applies to his discussion of the 'homosexual agenda'. Nothing he said in that entire passage struck me as incorrect. There certainly is such a thing, as laid out quite well here. It just so happens that I agree with that agenda. But that doesn't mean I should pretend I don't, or pretend it doesn't exist.

Thomas' dissent is also appreciated, as it gives us a bit more insight into his personal feelings on the matter, something that is often hard to gather from his strict adherence to originalism.

UPDATE: Upon re-reading Scalia's "homosexual agenda" passage, I still agree with almost all of it. I would argue a bit with his assertion about the evidence concerning how "mainstream" the pro-gay rights movement is. It's certainly a contestible point. The only real difference is that I support that agenda, while Scalia does not think it belongs in the judicial realm. I don't think that makes him a bigot.

Larry Solum does note what I thought the weakest element of Scalia's dissent:

Scalia charges the majority with inconsistency, and devotes a substantial portion of his dissent to Roe v. Wade, clearly weakening the dissent as an intellectual matter.

Solum has another objection, which I respond to here.

Initial Reaction

My first reaction to reading Kennedy's majority opinion is actually a bit off-topic. I notice how strongly he relies upon Casey, and I think this is a very good sign for pro-choice advocates who may have been concerned that Kennedy had changed his mind after Stenberg.

I like the opinion. I think privacy grounds were the right way to handle this case, and I think Kennedy does it admirably. If you don't believe in the right to privacy, you'll find no solace in the opinion. But if you do, then I think Kennedy persuasively explains why this is not really much of an extension of what that right already protects.

O'Connor once again shows herself to be, quite likely, my least favorite justice. She wants to split the difference, again, and do so on the narrowest of grounds. Just as I'd feared the whole court might do, she wants to apply an equal protection "rational basis plus" test, specifically citing Cleburne, Moreno and Romer as the only cases where this has been done. She does give a better explanation for the exceptionality of those cases than has been done before, and for that I give her some credit. However, as it is an exception I don't think should exist as such, the credit is limited.

On to the dissents.

The Results of My First Prediction

I said 7-2 on privacy grounds, not equal protection. MSNBC says:

The ruling was based on arguments by the plaintiffs' attorneys that because the two gay men who brought the case were arrested in a private residence while engaging in consensual sex, the raid amounted to an unconstitutional invasion of privacy.

The justices did not address a second legal point raised by the plaintiffs, that by mandating disparate treatment for two classes of citizens, the statute violates the 14th Amendment's equal protection clause.

The vote was 6-3 (though apparently 5-4 on the privacy issue; see O'Connor's concurrence). Rehnquist was less concerned about the taint of being on the losing side than I had guessed.

UPDATE: Kennedy's opinion, O'Connor's concurrence (remember that she was in the majority in Bowers), Scalia's dissent, Thomas' dissent. I'll comment as soon as I've read them.

Remember this week when people say the conservatives control the court.

Paid Advertising

Does anyone else think it's suspicious that the Vault Guide to the Top 100 Law Firms is sponsored by 15 of the firms it profiles? I mean, imagine if Johns Hopkins and UCLA bought ad space in the US News Top College issue. Odd.


I've been mulling it over, and discussing it with my ConLaw professor, and I've decided the thing that most bothers me most about the Grutter decision was the lack of transparency in the majority opinion. The dissenters said what they really believed, and I think made a good legal argument against AA.

But the dissenters appeared persuasive not simply because of the strength of their underlying position. Instead, it was because the majority, and in a sense really just O'Connor, refused to admit that they were not going along with the trend set by Adarand, Croson and the other strict scrutiny restrictions on AA. By trying to make it appear that this decision fit perfectly well with the rest of the AA jurisprudence, O'Connor had to defend the position on the thinnest and weakest grounds. This left the dissenters to feed on her weak logic and poor application of precedent.

There's a reason that Powell was the lone author of the 'compromise' position in Bakke. It's bullshit. If you believe in affirmative action, you believe that the 14th Amendment allows it, and you ought not think it only constitutional if applied in a particular way, in a particular field, for a particular time. That's just not how the Constitution works.

Yet that's how O'Connor has defended the program. There are good arguments for the constitutionality of AA, and O'Connor raised none of them. Perhaps she wanted to continue her horrible trend of splitting-the-difference, or perhaps sought to avoid the appearance that she's just changed her mind. Either way, I think it's a wretched opinion that ends up supporting a policy without citing any of the actually persuasive arguments in its favor.

My First Prediction

I predict Lawrence v. Texas is decided on privacy grounds, not equal rights, and that it is a 7-2 decision overturning Bowers. I don't think Rehnquist will want one of his last big votes to be on the losing end of a decision that, in 50 years, will seem so inherently correct people will be amazed it was even litigated.

Anyone else want to take a stab at it?

Horror Comic Books

Does anyone know the origins of this rather strange California law?

Every person who, as a condition to a sale or consignment of any magazine, book, or other publication requires that the purchaser or consignee purchase or receive for sale any horror comic book, is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.

As used in this section "horror comic book" means any book or booklet in which an account of the commission or attempted commission of the crime of arson, assault with caustic chemicals, assault with a deadly weapon, burglary, kidnapping, mayhem, murder, rape, robbery, theft, or voluntary manslaughter is set forth by means of a series of five or more drawings or photographs in sequence, which are accompanied by either narrative writing or words represented as spoken by a pictured character, whether such narrative words appear in balloons, captions or on or immediately adjacent to the photograph or drawing.

I for one am quite flabbergasted.

Presumptions of Inferiority

I don't often disagree with what is posted over at TalkLeft, but this post on the AA decisions has stirred up an argument, and I'm on the other side. The focus is on the update to the original post:

Update: Clarence Thomas voted against affirmative action.

Well... so what? As I said in the comments, is anyone surprised at his vote? He has been opposed to AA since the day he got on the court... I certainly don't see how his vote merits individual mention, nor a specific update, unless it is to discuss some particular aspect unique to his opinions.

Several other commenters responded that since Thomas benefitted from affirmative action, it is hypocritical for him to oppose it now.

Well unless y'all know something about Clarence Thomas that I don't know, that just seems ill-informed. I've found nothing to suggest that Justice Thomas' grades and test scores weren't good enough to gain entrance to Yale without the help of affirmative action. Assuming otherwise puts exactly the stigma on Justice Thomas that he decries in his opinions against affirmative action (and now we see he does it with good reason and personal experience). Assuming that just because someone is black he benefitted from affirmative action is not only wrong, but condescending, paternalistic, and guaranteed to perpetuate, not alleviate the racial stereotypes in this country.

UPDATE: TalkLeft says that the link was just a part of the larger story, and I'll give her the benefit of the doubt. Those commenting to her post, however, continue to repeatedly allege that Thomas benefited from AA without giving any evidence of it. Until they do, I'm going to consider this the paternalistic racism that Thomas so strongly opposes, and I'm going to give newfound credit to his thesis.

UPDATE II: I did find evidence that Thomas benefited from AA, from a 7/14/91 article in the Orlando Sentinel. Though the article doesn't make clear that Thomas himself was a beneficiary of the program, it seems to be implied. It also mentions that Thomas seems to have admitted as much himself:

U.S. Supreme Court nominee Clarence Thomas was admitted to Yale Law School under an affirmative action plan to boost minorities to about 10 percent of the freshman class, a newspaper reported Sunday.

The Yale affirmative action program was adopted in 1971, the year Thomas applied for entrance, The New York Times said.

School officials told the newspaper blacks and some Hispanic applicants were evaluated differently than whites.

They were not admitted, however, unless they met standards to predict they could succeed at the highly competitive school, the Times said.

"We did adopt an affirmative action program and it was pretty clearly stated," said Professor Abraham S. Goldstein, dean of the law school from 1970 to 1975.

Goldstein said the school used a set of minimum standards based on college grades and test scores.

Thomas frequently has criticized affirmative action policies and advocated a colorblind society. However, he has also acknowledged that affirmative action helped him.

In a 1987 panel discussion at the Center for the Study of Democratic Institutions in Santa Barbara, Calif., Thomas said "ultimately, any race-conscious remedy is no good."

But while chairman of the Equal Employment Opportunity Commission in 1983, he said affirmative action laws were of "paramount importance" to him.


Check the news: Supreme Court upheld the Michigan law school AA policy and struck the undergraduate points system. Should make for interesting reading, and sounds like it will provide little or no resolution to the debate.

UPDATE: I've read O'Connor's majority opinion in Grutter and think that, while eloquent and heartfelt, it's pretty out of touch with the AA jurisprudence of the last twenty years. Ginsburg's concurrence had me laughing as soon as it quoted the Convention on the Elimination of Racial Discrimination. Kennedy's dissent is to the point, arguing simply that strict scrutiny was not applied. Rehnquist's dissent goes into quite a bit of detail in hammering the so-called "critical mass" theory, particularly by comparing how different minorities are treated by Michigan (e.g. how can a critical mass of blacks require 80-90 students, but a critical mass of hispanics requires only 40-50). Scalia's dissent is snide and probably correct, particularly his disgust at the new analysis that will have to take place in order to decide whether a particular AA program falls under Grutter or Gratz. Thomas' dissent is 31 pages and I'm not finished with it yet.

UPDATE II: I think Thomas' dissent is really quite brilliant. That's not to say I agree with it, but he at least covers all the relevant legal issues in a way that O'Connor does not. Perhaps O'Connor just couldn't find a way to justify the decision on recent precedent, and is thus making a move away from it. That might make sense despite her not acknowledging it (and pretending she's just following the not-really-precedent of Powll in Bakke), but pending my reading of Gratz I suspect she does not want to revisit any of the decisions of the 80s and 90s. If that's true, I think she really punted the most important issues in the case. Compare Thomas' discussion of the importance of higher education (and elite public law schools in particular) to O'Connor's brief assertion that education is just different from other fields. She may be right, but I think Thomas poses some serious challenges that go unanswered.

Fair Play

Kenn at Cogicophony sums up my feelings on the judicial nominations process:

[I]f the President makes his choices on ideological grounds, why shouldn't the Senate examine that ideology? It seems to me that both parts of a judge's credentials are examinable. Why does the Senate have to be ensconsed in an Ivory Tower while the President gets to pick the judge most likely to fit his political views?

The level of disingenuity on both sides of the process was galling to me, but none moreso than the claim that the Senate cannot take a judicial nominee's political views into account when advising and consenting.

I Did Not Know That

Hard to believe it's been 10 years since Justice Ruth Bader Ginsburg was appointed to the Supreme Court (I was 12!), and here is a neat little tidbit I was ignorant of:

Ginsburg was formerly the ACLU's general counsel and served on its board of directors.

Very cool. I've long been a fan of the ACLU, even working as an intern in their Utah office in high school. I'm not 100% onboard with their death penalty stances, nor do I think it behooves a Bill of Rights advocacy group to ignore the 2nd Amendment, but overall it's easily among my favorite political action organizations.

Prosecuting Victims

Here's a case that raises some very interesting questions about holding victims responsible for their actions:

Despite having an order of protection filed against her ex-husband, Betty Lucas invited him to a birthday party held for one of their children. The party soon disintegrated into fighting and police were called. But in an unexpected twist, both adults were charged with violating the protection order--her ex-husband for attending and Lucas for inviting him.

Now Lucas' appeal has landed on the docket of the Ohio Supreme Court, which must decide if a person who seeks a court's protection can be charged with violating their own request.

Domestic violence groups have sided with Lucas and say abusive people--not their victims--must be held responsible for violating protective orders. Prosecutors say Lucas should be held as accountable as anyone else who helped her husband violate a court order.

It'll be interesting to see how this turns out. She was convicted for recklessly aiding and abetting and the state appellate court upheld her conviction (770 N.E.2d 114), in contrast to another state appellate court ruling from a few years back which held that those under the protection of such an order can't be prosecuted for violating it (744 N.E.2d 1225).

I'm obviously sympathetic to the arguments of the domestic violence groups, as I think the protection we offer such victims is already pretty inadequate. Yet, my boss says that police are becoming very frustrated with the number of times they'll return to a location on a protective order violation only to find that it was the protected person who invited the offender. While prosecuting the victim may be distasteful, prosecuting the offender alone doesn't really seem right in such a situation either.

Mandatory Minimums

PG asks in comments below how I feel about mandatory minimums. It's a good question. My gut tells me that mandatory minimums are a pretty heinous thing. For one thing, legislatures don't seem to have enough incentive to restrain themselves (see e.g. the increase of powder cocaine minimums in some state to achieve equality with crack cocaine minimums). For another, I wouldn't be as worried about judges being ignorant of the horrendous physical abuse of women, for the simple reason that these cases come before them too frequently and they see all the evidence of brutality. It's those of us who never see these things that I worry about. So in that sense I'm more concerned about mandatory minimums sending people to prison for too long than judicial discretion letting people off too easy. Though I should say that Mr. Paul (the defendant in my last post) does not really present a very sympathetic case, what with his numerous physically violent convictions. A number of the California three-strikes defendants seem better examples of the idiocy of mandatory minimums.

So in general, I guess I'm quite opposed to mandatory minimums. But I'm also willing to work with that system, which is why I've long been interested in being a prosecutor. It seems pretty clear to me that the prosecutor is the only one with any real discretion left in many jurisdictions. His ability to choose which charges to bring (with their accompanying sentencing guidelines) and to plea bargain leave him the only actor with a consistent ability to treat each case as its own.

Brighter Side of Criminal Law

I blogged yesterday about the darker side of researching criminal law, so I thought I owed a mention to some of the more humorous and amusing elements. In particular, the defenses of necessity and duress have given rise to a tremendous wealth of unlikely explanations and excuses for criminal behavior. More often than not, these claims are quickly dismissed. However I have run across a few funny cases in which appellate courts have ruled in favor of the defendant.

The most unbelievable might be U.S. v. Paul, a 1997 case in the 2nd Circuit Court of Appeals (110 F. 3d 869). In this case, the defendant was arrested for firing a revolver while standing on a city sidewalk, and convicted of the federal crime of possession of ammunition by a convicted felon. Yet Paul argued he was entitled to a defense of duress:

Paul gave the following account of the events leading up to his firing the gun. In the early morning hours of the day of the episode, he had been playing poker in a bar with four or five other men, including a man known to him only by the name "Shorty". After Paul won the final hand of the game, Shorty asked Paul for a loan of $100. When Paul refused, Shorty became angry, went outside to his car, and retrieved a bottle of whisky. From the bar, Paul also saw Shorty putting something else into his pocket. That other item turned out to be a gun.

Returning to the bar, Shorty continued to argue with Paul. As both left the bar, the argument escalated. Paul shoved Shorty, and Shorty pulled the gun out of his pocket and fired two shots at Paul's leg. Both shots missed.

At first, Paul ran for cover beside a parked car. He then ran back inside the bar, closed the door and held it shut, and continued watching Shorty through a small window. Although Shorty initially approached the door, he soon turned and began walking away in the direction of his car, placing the gun back into his pocket. At this moment, Paul decided to administer physical punishment to Shorty for shooting at him. Paul darted out of the bar, accosted Shorty, and tackled him to the ground. When Shorty reached for the gun, Paul grabbed it out of Shorty's hand, and sat on top of him. Paul then struck Shorty a few times, stating that he did not need a gun to deal with him.

Still in possession of the gun, Paul walked back toward the bar, firing the remaining bullets into the ground, and throwing the empty gun onto the floor in the bar. He testified that he fired the gun solely to ensure that it could no longer be used to injure or threaten him.

The jury was not charged on the duress defense, and Paul was convicted. The sentence? 262 months imprisonment. That's nearly 22 years! It turns out that because of previous convictions (assault on a police officer in 1978, robbery in the first degree in 1978, assault in the second degree in 1982, assault in the second degree in 1985, and assault on a police officer in 1991), Paul qualified as an armed career criminal and thus subject to a mandatory minimum prison sentence of 15 years.

Well he won on his appeal and the case was remanded for a new trial. The new trial took place and he was convicted again, only this time his sentence was for only 235 months!

So two lessons to take from this case: (1) mandatory minimums hurt; (2) duress defenses never work.

Doe v. Unocal

In my class on Human Rights Law, we spent some time on Alien Torts Claim Act cases and on Doe v. Unocal in particular. This is a case in which Burmese peasants are suing Unocal to recover damages for the use of slave labor and other human rights violations by the military, which was hired by Unocal to provide security.

The District Court dismissed the case on grounds that there was no evidence Unocal desired these abuses, but the Ninth Circuit Court of Appeals reversed. Now they've agreed to rehear the appeal en banc, and John Ashcroft has filed an amicus brief supporting Unocal by arguing that such ATCA claims should not be allowed. The lefty bloggers have been covering this pretty well (here, here, here), but now even Joe Katzman at Winds of Change is venting on the issue. Here is part of Human Rights Watch's analysis of the amicus brief:

In its brief, the Justice Department embarks on a wholesale attack on the Alien Tort Claims Act (ATCA), the law underlying the villagers' claims. For over twenty years, since the landmark 1980 case of Filartiga v. Pena-Irala, courts have ruled that the ATCA permits victims of serious violations of international law abroad to seek civil damages in U.S. courts against perpetrators found in the United States.

The Justice Department's proposed interpretation of the law would radically narrow its scope. The law would be changed so dramatically, in fact, that as the Department itself acknowledges, it would be rendered "superfluous."

One of these days I'm going to stop being surprised by the Justice Department. What is most interesting to me is that some human rights groups have been afraid to press ATCA appeals at the higher levels for fear of exactly this reaction by the government. If the wrong case makes it to the Supreme Court, the whole ATCA process may be shut down. Many would not miss it, but it does seem to be one of the few outlets of any kind in our country for registering complaints about human rights abuses abroad.

UPDATE: An article from suggests the Justice Department's position is likely to be rejected:

[L]ast week, in an unrelated case also involving claims under the act -- with the United States itself as one of the defendants -- the en banc 9th Circuit ignored the government's request to revisit precedents or an analysis of the statute has led that court, and many around the country, to permit these claims to go forward.

The Alvarez decision has "enormous" implications for the Unocal case and all cases against corporations under the statute, said Paul L. Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman of Venice, Calif., counsel to Alvarez and who, with the Center for Constitutional Rights, represents citizens of Myanmar (formerly Burma) suing Unocal.

The Justice Department in Alvarez, he explained, pressed the same argument as in Unocal that the act does not apply to claims brought by aliens for actions occurring in other countries.


I have friends spending their summers working for either the local U.S. Attorney's office or the public defender's office, and both have specifically mentioned how amazed they've been at the horrible things that go on in Charlottesville and the surrounding county. I've long assumed one of the significant difficulties with working in criminal law is that exposure to the dark side of humanity, and their experiences leave no doubt. In my research on the self-defense chapter of the casebook I'm helping to revise, I've spent several hours reading nothing but cases involving battered woman's syndrome, and I have to say the stories these women tell are just horrific. It is nearly beyond the scope of my comprehension to believe that such things take place, but of course they do.

Some of the most egregious abuses I've read about are committed by men whose external life seems quite normal, even enviable. They are successful businessmen and upstanding members of their community, as far as anyone outside the home can tell. But much darker things are going on behind closed doors. Some of our society's ambivalence about this abuse might be explained by concerns about privacy, indifference to women's rights, etc. But I think a large part of it might be a result of cognitive dissonance that arises from the fact that accepting the realities of abuse means having to admit that we all likely know at least one man who abuses his wife or girlfriend. We'd much rather pretend such things don't happen, or that "they don't happen here", than have to deal with the proximity of such horrors to our own lives.

Scary Headline

Geez. Breaking News from CNN:

Associated Press reports explosion at Yale University law school. CNN working to confirm.

My heart is racing.

UPDATE: Here's the initial AP report.

Public Domain

I didn't realize Larry Lessig has been blogging so much recently, so I missed this important post on the public domain:

About a month ago, I started sounding optimistic about getting a bill introduced into Congress to help right the wrong of the Sonny Bono Copyright Term Extension Act. I was optimistic because we had found a congressperson who was willing to introduce the bill. But after pressure from lobbyists, that is no longer clear. And so we need help to counter that pressure, and to find a sponsor.

The idea is a simple one: Fifty years after a work has been published, the copyright owner must pay a $1 maintanence fee. If the copyright owner pays the fee, then the copyright continues. If the owner fails to pay the fee, the work passes into the public domain. Based on historical precedent, we expect 98% of copyrighted works would pass into the public domain after just 50 years. They could keep Mickey for as long as Congress lets them. But we would get a public domain.

Yet the lobbyists are fighting even this tiny compromise. The public domain is competition for them. They will fight this competition. And so long as they have the lobbyists, and the rest of the world remains silent, they will win.

We need to your help to resist this now. At this stage, all that we need is one congressperson to introduce the proposal. Whether you call it the Copyright Term Deregulation Act, or the Public Domain Enhancement Act, doesn�t matter. What matters is finding a sponsor, so we can begin to show the world just how extreme this debate has become: They have already gotten a 20 year extension of all copyrights just so 2% can benefit; and now they object to paying just $1 for that benefit, so that no one else might compete with them.

Sounds to me like a worthy cause.

Deterrence II

Dan Kahan, then a law professor at Chicago but now at Yale, wrote a piece in 1997 called Social Influence, Social Meaning, and Deterrence (83 Va. L. Rev. 349). I haven't finished the article, but his basic premise seems so intuitively correct that I thought it was worth sharing:

Individuals don't decide to commit crimes in isolation; rather, their decision interact with and reinforce each other in various ways. In particular, individuals are much more likely to commit crimes when they perceive that criminal activity is widespread. In that circumstance, they are likely to infer that the risk of being caught for a crime is low. They might also conclude that relatively little stigma or reputational cost attaches to being a criminal; indeed, if criminal behavior is common among their peers, they may even view such activity as status enhancing. Finally, in a community in which crime is perceived to be rampant, individuals are less likely to form moral aversions to criminality. By social influence, I refer generically to how individuals' perceptions of each others' values, beliefs, and behavior affect their conduct, including their decisions to engage in crime.

Alright, so far we've got some well-articulated, but very basic understandings of sociology. Where Kahan's insight lay is in connecting these sociological points to a model of deterrence. His first suggestion lay squarely in the 90's NYPD model of 'order maintenance', cracking down on vandalism, public drunkenness, prostitution, etc:

When citizens obey norms of orderliness - and when authorities visibly respond to those who don't - onlookers see that the community is intolerant of criminality. This message counteracts the inferences that point social influence in the direction of crime. It also reassures law-abiders, inducing them to engage in patterns of behavior that discourage crime. In this way, the perception of obedience becomes reality.

That's a far as I've gotten, but I thought I'd pass on this interesting point:

Because norms construct the context within which action becomes meaningful, regulating norms can reinforce or suppress particular meanings. Consider possession of guns in inner-city public schools. This behavior is infused with social meaning. Possessing a gun confers status because it expresses confidence and a willingness to defy authority. By the same token, not possessing one signals fear, and thus invites aggression. Policies that aim at suppressing possession usually fail; indeed, when authories aggressively seek out and punish students who possess weapons, their behavior reinforces the message of defiance associated with guns, thereby increasing their expressive value.

One policy that is believed to be effective is to pay rewards to students who turn in gun possessors. This tactic appears to work, moreover, not just because it facilitates seizure of the weapons, but because it interferes with norms that give guns their meaning. Whens tudents fear that their peers will report them, they are less likely to display their guns; when students are reluctant to display them, guns become less valuable for conveying informaiton about one's attitude and intentions. Students then have less incentive to carry then. Paying students to inform probably doesn't change the meaning of guns, but it does disrupt behavioral norms - including the ready display of guns - that are essential to their expressive value.

In another article (in fact responding to the Katyal piece I just posted about), Kahan also notes that the "belief that onlookers are willing to sell out possessors counteracts the inference that possessors enjoy high status among their peers."

Interesting stuff.

Deterrence I

I've been reading the recent legal scholarship on justifications for punishment, and came across two interesting articles on deterrence (I'll give each its own post). Deterrence's Difficulty is a piece from 1997 by Georgetown law professor Neal Katyal (95 Mich. L. Rev. 2385). He suggests several additions to the economic model of criminal behavior, but his discussion of substitution seems particularly interesting. He argues that an over-emphasis on marginal deterrence has created a narrow view of deterrence, one that can be partially corrected by recognizing the implications of substitution:

At its best, the marginal deterrence argument is one about creating incentives for individuals to refrain from committing the same crime on a greater scale. As such, it is a much-needed refinement on the traditional deterrence question. While the traditional question asks whether a penalty for X deters X, the marginal deterrence theorist asks whether a penalty for X may prompt commission of the marginally more severe crime X + 1 because that crime receives the same magnitude of punishment as X.

By pointing out that consumers (criminals) will base their choices between X and X + 1 on the price (expected penalty) of each, marginal deterrence demonstrates a relationship between price and conduct. But criminals often have choices beyond X and X + 1; thus an increase in the price of X may increase the commission of non-X activities. The substitution perspective therefore expands the conventional deterrence question by asking wheter a penalty for X will distort behavior and lead people to commit an altogether differenct crime (Y, Z, or some combination of the two). These other acts my be other crimes, or they be lawful endeavors. Substitution's chief insight is that it shows that the focus on marginal deterrence -- one example of substitution -- is too narrow.

It's a very fascinating article, and brings into economic models of criminal deterrence some of the more fundamental aspects of market theory that have been left out. Katyal notes that this neglect has, in part, been due to a false assumption that different crimes are independent goods rather than supplementary, which is simply not true for what he calls "market crimes," those committed for profit. His practical example, though lacking in causal empirical evidence, is that the harsh penalties enacted for crack cocaine dealing/possession may have led dealers to simply switch over to heroin, which could be possessed in quantities exponentially greater than crack for commensurate penalties. All in all a worthwhile read, if one is so inclined.

Malvo's Confession Admitted

In a ruling that should not surprise anyone, a judge has admitted the greater part of sniper suspect Malvo's confession. The only parts excluded were those comments made before his Miranda rights were given.

His guardian "ad litem" (appointed because his parents were absent) claimed that he had arrived at the police station and sought to see Malvo, but was prevented from doing so by police, who also failed to tell Malvo of the guardian's arrival. The Supreme Court ruled in Moran v. Burbine that the police have no obligation to inform a suspect that a lawyer has been hired for him or wishes to speak to him. In that case, the court even set aside the fact that the police had deliberately misled the attorney, telling her that the suspect would not be interrogated that night. Though "objectionable as a matter of ethics", the court held that as long as the deception was not of the suspect, his waiver of Miranda rights was still voluntary. Some state courts have held that, under their state constitutions, the police may not intentionally or negligently fail to inform a suspect that their lawyer is trying to see them, or interfere with the attorney-client relationship by preventing access to the suspect, but the U.S. Constitution currently offers no such protection. Apparently this logic extends to guardians 'ad litem' as well.

There had also been some allegations that he'd made comments referencing his desire for a lawyer, or his fear of speaking without a lawyer present. Nonetheless, as the court ruled in Davis v. United States, a suspect has to make a clear and unequivocal invocation of his rights. If the police could reasonably believe he only might be invoking his rights, they have no duty to stop, clarify, or even acknowledge his comments.

Remember that if you ever find yourself in the unfortunate situation of being questioned by police: "I invoke my right to remain silent. I invoke my right to counsel. I will not answer your questions until my counsel is present."

Bye Bye Campaign Finance Reform

The McCain-Feingold campaign finance bill was largely struck down by a panel of federal judges today:

In a 2-1 vote, the court ruled that political parties can raise corporate and union contributions for general party-building activities such as get-out-the-vote drives and voter registration but cannot use it for issue advertising.

Also voting 2-1, the court struck down a provision barring a range of interest groups from airing issue ads mentioning federal candidates in those candidates' districts in the month before a primary election and within two months of a general election.

I've never formulated a legal or political opinion on the issue, though from a political process perspective I can't see how the money involved in today's campaigns is anything but destructive and corrupting. More to the point, it sure seems a shame for those involved to have spent so much time and political capital fighting a fight that will likely end without any tangible improvements. (Of course this can be also said of those whose fight for change I want to fail).

No Guns For Blacks

As a military man and gun owner who tends to favor sensible gun control, I often find myself torn on gun issues. As such, I try to stay knowledgeable about the latest news. Recently the NAACP has been pursuing a lawsuit against gun manufacturers in a federal district court in NY. Here's the disturbing response of several gun dealers:

Due to the lawsuit initiated by the NAACP, we can no longer sell firearms to African-Americans. We are sorry for this, as African-Americans have rights and needs for self-defense as strong as anyone else. This was not our choice, but was forced upon us as we cannot afford such litigation.


I happen to think there is a lot of room for moderation on the issue, and am glad to see President Bush has pledged to support a re-authorization of the Assault Weapon Ban (though I still think it a bad bill written by people who really don't understand firearms).

Likewise, the Virginia rule that one cannot buy more than one handgun a month seemed a good, moderate, reasonable way to end Virginia's status as a feeder state for guns used in crimes in the Northeast. Nonetheless, testimony in the NAACP trial shows that Virginia is still the top source of crime guns in New York, including three of the top five dealers to whom gun used in crimes can be traced. That's shameful.

Property Law Hypotheticals

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.

5th Amendment Fruits of the Poisonous Tree

We've been covering the 5th Amendment and Miranda in my Criminal Investigation class, and this week the SC said it would re-examine some issues surrounding the Miranda warnings. In particular, the question is whether "Fruit of the Poisonous Tree" exclusion should extend not just to an unwarned statement, but to physical evidence and witness testimony that results from information learned in that statement.

A couple years ago, when Miranda itself was under attack in Dickerson, among the amicus briefs there was quite a bit of police support for Miranda; if you really look at the Miranda decision, you see a whole slew of psychological police procedures that the court was dismayed by (good cop-bad cop, etc.). However, instead of banning them outright, they set up the prophylactic Miranda warnings. Now, once the police have given those warnings (and they've been waived), the police are free to use all those psychological tactics.

Overturning Miranda without some new standard would leave us with the Due Process Clause voluntariness test, and that's going to raise a lot of questions about coercion and deception that police don't want to answer. What this new case does is suggest another reason that police might not be so keen on Miranda/

The court has sort of backed itself into a corner with its Dickerson ruling. They used to be able to exclude Miranda violations from normal "fruit of the poisonous tree" analysis, since Miranda warnings were only 'prophylactic' rules. Thus only the tainted statement/confession was thrown out, but any physical evidence and witness testimony was still valid. Now that Dickerson has constitutionalized the rules, violating them takes on a new meaning. I doubt the court will make the necessary step and throw out this physical evidence, but it'll be nice to see them squirm.

Never Again

So it looks like Senate Republicans are getting tired of defending the President's more controversial judicial nominations. I'm wondering what the cause for the President's push on these nominations really is? Is it just partisan stubborness? I think maybe not. Who knows if any in the administration are thinking on these terms, but after reading about Justice Stevens' unexpected lurch to the left, it occurs to me just how betrayed many current Republicans must feel by Justice Souter (though appointed by the first President Bush, he's consistently voted with the liberals and wrote a strong dissent in Bush v. Gore).

I happen to think Souter votes quite nicely, but if Clinton had nominated a justice who went on to strike down Roe or had joined the majority in Bush v. Gore, I sure can see Democrats going nuts. I wonder if a similar feeling is an undercurrent to the current administration's approach to judicial nomination. Perhaps they fear moderates because they might just as easily turn out to be center-left as center-right.

UPDATE: Jackpot! Here's what the Eagle Forum's Phyllis Schlafly has to say in her vision for 2003:

Bush was elected in 2000 and successful in campaigning for Republican Senate candidates in 2002 largely because of the judicial issue, and his constituency will leave him if he appoints another Justice Souter.

Chalk that up as a completely unveiled threat.

(Aside: I wonder if there's a way to sculpt this into a law review article?)

Justice Stevens

How Appealing notes that Justice John Paul Stevens turns 83 today. Stevens has long been a mystery to me, and I've never really been able to create a coherent understanding of what he's done on the court in the last 28 years. Here's an interesting take:

Stevens has confounded prognosticators who thought they knew him as well as those who did not. Widely considered a 'sure swing vote' in the Court's center, he fairly rapidly proved to be found far more frequently with the 'liberal bloc,' increasingly so with the passing of time. His prorights or proindividual score has consistently been high. The women's rights group who opposed his nomination quickly began to hail him as both sensitive and free of preconceived notions. A 'gadfly to the brethren,' a personal loner, a legal maverick, he forever challenges his colleagues. Always well prepared and soft-spoken in his frequent colloquies with counsel in oral argument, he probes like a veritable explorer and is replete with novel legal theories. But he has not been a Court leader, and it is doubtful that he will become one. He has found it difficult to subsume his own ideas and interpretations to others in order to forge not only a numerically united front, but also one that is jurisprudentially in concord. He has written more dissenting and concurring opinions than any of his colleagues. To dissent, of course, is one thing; but to engage in the veritable flood of concurring opinions that have emanated from Stevens's pen is quite another - for they all too often muddy the constitutional law waters and lay themselves open to the charge that they are ego trips. Yet Stevens is patently a valuable addition to the Court. He is an unceasing stimulator of reflection, of innovation, of disciplined literateness, of cerebral combat in constitutional law, logic, and theory. And his gift for elegant, pungent, memorable expression will always grace the Court's annals.

I'm sure he's been the 5th vote on a number of issues, and thus influential in practical terms. Yet in legal terms, it's hard for me to see what he has really contributed. I don't think being an 'unceasing stimulator' of 'cerebral combat' is particularly valuable if you're arguing by yourself on the sidelines of all the major debates.

AA Again

WP has an article on the potential effects of an affirmative action ban on affirmative minority representation at professional schools. I don't care what your feelings on the subject, these stats ought to be pretty shocking:

Michigan's law school, which is considered highly selective, admits students who average 165 on the Law School Admissions Test and a grade-point average of 3.5. Last fall, 4,461 law school applicants nationwide achieved or exceeded those grades, according to a brief the Law School Admission Council filed at the Supreme Court. Of those students, the council said, 29 were black and 114 were Hispanic.

Read the article... there's a lot to be concerned about.

You Know You're in Law School When..

Here's something you probably didn't know. When the United Nations receives communications about human rights violations, two resolutions of the Economic and Social Council (ECOSOC) govern: Resolution 728F which explains why the Commission on Human Rights (CHR) has no power to take any action, and Resolution 1503 which provides confidential procedures for analyzing the communication. The Office of the United Nations High Commissioner for Human Rights summarizes the communication for compilation in a confidential list, and submits the communication (with author unidentified) to the government of the country concerned. Then the Working Group on Communications (a sub-group of the CHR, itself a sub-group of ECOSOC, consisting of 5 members, 1 each from 5 regions) has a 10 day session, reviews 400-500 files (from 20-25k received), and with a majority vote refers the communication to the Working Group on Situations. Then the Working Group on Situations (5 diplomats from among the CHR member countries) meets prior to the annual CHR meeting, decides which country situations to refer to CHR and drafts recommendations for how to handle them. Then the CHR meets in private session, with just the CHR members and a representative of the country under discussion, and has one of three options: a) Keep situation pending for 1 year; b) Drop the matter; c) Permit CHR to consider the matter in public session.

What lessons should you take from this inane lecture?

1) Law school sucks
2) The U.N. is worse

Racial Gerrymandering

Interesting stuff today in my ConLaw class about racial gerrymandering; my professor points out that the first Bush administration's Justice Department favored the creation of majority-minority districts (putting enough in the same district to elect their own representative), and he thinks they did so because they knew it would drain black Democratic voters out of all other districts, thus increasing the chances of Republicans being elected.

The best example, he says, is Georgia. In 1990, Georgia had 10 representatives: 1 black Democrat (John Lewis), 9 white Democrats, and Newt Gingrich; in 1994, Georgia had 11 representatives: 3 black Democrats and 8 white Republicans.

He acknowledges that the racial gerrymandering doesn't fully explain the shift, but it has had a clear effect.

Interesting. It raises hard questions about whether it is better for minorities to have a few representatives of their own race or more representatives of their own party.


Yglesias also has a couple posts up about the 'first past the post' electoral systems we have in the United States.

We've been covering vote dilution, malapportionment and gerrymandering in my conlaw class the last few days, and one theme comes up in every case: entrenchment.

Political theorists (and philosophers!) can spend all the time they want discussing possible benefits of switching to proportional representation, but finding a way to actually create such a switch is more difficult.

The idea of entrenchment is rather simple, but goes far to explain many of the voting and election controversies in our history. Put simply, those who wield power will not make expansions to the political community or changes in the electoral system because the status quo is what put them in power.

Take malapportionment for example. Until the Supreme Court got involved in Reynolds v. Sims (1964), several states had not reapportioned their legislative districts since the turn of the century. The state having thus ignored the massive urbanization our country experienced, voters in urban areas were underrepresented in the state legislature by shocking magnitudes. But the legislature itself was never going to make the necessary changes, because those in power were only there because of the malapportionment.

That's why the courts intervened. I assume that Matt is not interested in seeing the courts order a restructuring of Congress, and of course such a possibility is incredibly remote.

So I wonder what the mechanism for this change would be. I have trouble imagining Congressmen themselves supporting such a change, since it poses a tremendous threat to their parties (and their own seats). The only possibility I see is doing it at a state level (individual state legislatures changing the way they elect their own Congressmen; obviously they'll never change the way they themselves get elected). What states would be good targets for such an effort?

Of course if we're setting up a new system, like in Iraq, this problem doesn't exist. But it is interesting to look back at the obstacles to change in America's own electoral system.

UPDATES: Chris Lawrence points out that current federal law mandates single-member districts. That poses an almost insurmountable problem for any movement to multi-member districts, which is the way most who favor proportional representation would probably want it done.

Justice Kennedy

Justice Kennedy taught my ConLaw class yesterday (actually a joint class for all 1Ls here), and it was a nice chance to give some color to my otherwise hollow impression of him. He has long been the last justice I remember when trying to account for all nine, but I'm not sure that's fair to him.

He gave a good lecture on the structures of the Constitution (separations of power, federalism, judicial review), focusing particularly on the unique nature of federalism at the time of the Founding.

He emphasized that in his view, federalism is not a protection of states' rights, but of individual rights, by keeping power closer to home and increasing accountability. He said that Morrison and Lopez should be seen as a warning sign to Congress that they need to be mindful of the effects of unduly duplicating or undermining state power.

I agree with the substance of his point (in fact it helped put me on a track of understanding how to mesh my left-leaning values with my distaste for legislating from Washington), but I couldn't get one question out of my mind: "Justice Kennedy, weren't you in the majority on Bush v. Gore?"


Very strange split in the SC's 5-4 decision upholding Virginia's ban on cross-burning:

Majority - O'Connor, Rehnquist, Stevens, Scalia, Breyer
Dissent - Souter, Ginsburg, Kennedy, Thomas

UPDATE: As always, it's more complicated than at first glance:

O�Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, in which Rehnquist, C. J., and Stevens, Scalia, and Breyer, JJ., joined, and an opinion with respect to Parts IV and V, in which Rehnquist, C. J, and Stevens and Breyer, JJ., joined. Stevens, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Thomas, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Kennedy and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion.


AA in the Military

Susan Estrich, whom I respect very much, has a column on the military amicus brief:

[T]he decision the Court reaches about affirmative action will affect how the military fights wars in the future.

At least that is what three former generals have argued in their friend of the Court brief. The military, they argue, needs black and Hispanic officers, given the number of black and Hispanic men and women who are volunteering to serve. To fill the need for officers, they need black and Hispanic college graduates, and affirmative action is required to produce those graduates.

This is a really big issue, and I'm glad that the justices paid attention to it. For the most part we are able to think about affirmative action and its results only in large abstract terms, perhaps hoping that we are raising minorities into the middle and upper classes and breaking the cycles of poverty and poor education.

Well I don't know how well any of that has worked or could work, but I do think there is some good evidence that the operations of the military are undermined by an officer class that is tremendously less diverse than the enlisted ranks. The numbers today are a tremendous improvement over the Vietnam-era, when it really was problematic that almost all officers were white. Here's part of an editorial by two of the officers who joined the amicus brief:

A cohesive military requires a diverse officer corps, and it requires that our officers be educated and trained in diverse educational settings. During the 1960s and '70s, while integration increased the percentage of minorities in the enlisted ranks, the percentage of minority officers remained disturbingly low. The perception of discrimination was the standard. This contributed to low morale and heightened racial tension.

The resulting danger is not theoretical, as the Vietnam era demonstrated. As that war continued, the armed forces suffered increased racial polarization, pervasive disciplinary problems and racially motivated incidents in Vietnam and in other places around the world. By the early '70s, racial strife in the ranks was pervasive. The dearth of minority officers substantially exacerbated the problems.

No workable alternative to limited, race-conscious programs currently exists that would increase the pool of high-quality minority officer candidates and ensure diverse educational training for officers. The military's aggressive minority recruiting programs must continue to increase the pool of qualified minority candidates. Our diverse fighting force not only deserves this, it requires it.

I applaud the liberal justices for relying on this brief, as it really puts in perspective the reality of how important race still remains in our society, in a way that government can't just ignore.

Oral Arguments

My conlaw professor (Michael Klarman, if anyone is interested) had this to say about yesterday's oral arguments which he attended:

It was a little bit hard to read Justice O'Connor, which is all anybody cares about.

He said she seemed to raise an interesting standing issue, which relies upon the idea that a plaintiff needs to be able to show some causation between their rejection and the affirmative action.

He also thinks O'Connor seems likely to stick to her Adarand opinion, which held that strict scrutiny is not necessarily fatal, thus there must be some room for race to be taken into account. This doesn't mean she'll support the UMich plan, but it does mean she's unlikely to join a Scalia opinion calling for the total elimination of racial classifications.

He said his biggest surprise was the emphasis on the military amicus brief, (about which I'll have more to say in another post) the so-called "green brief" that Lithwick talked about in her story. He thinks there's an interesting analog to Brown, in which the Eisenhower administration's brief placed a lot of emphasis on national security, though on different grounds.

Affirmative Action

As usual, Dahlia Lithwick proves herself to be a stellar SC reporter. Read her coverage of the AA arguments yesterday.

My conlaw professor was there, and I'll post if he has anything insightful to say during class later today.

Judicial Pretensions II

I just wanted to say one more word about Scalia. I can never resist an opportunity.

What is bothering me at the moment is Scalia's contension that textualism serves as the most effective restraint on judicial activism and legislating from the bench. Yet this philosophy almost NEVER restrains Scalia. He likes textualism/originalism because his political views are conservative and tradionalist, and thus need not be restrained by a philosophy that disfavors change and gives power to the dead hand of history.

When textualism is not convenient, as in school segregation, affirmative action, or gender discrimination (as discussed in my last post), it is simply left out of the discussion, or some wishy-washy alternative like soft originalism is offered up in its place.

When Scalia needs to get around the text, he finds a way. He is the perfect example of why textualism offers no more restraint than any other jurisprudential method. Scalia likes it for exactly that reason. It conforms to and supports many of his positions, and no one can make him use it when he doesn't want to. How pretentious of him.

Judicial Pretensions

UPI has an editorial bashing the 9th Circuit for their decision on the Pledge of Allegiance:

God bless the 9th U.S. Circuit Court of Appeals. Judges in America's most liberal court have finally written a decision so blatantly ideological that it may well cause a popular uprising against liberal judges and their pretensions to exclusive authority over interpreting the Constitution.

Right, as if liberal judges were the only ones who pretend to have exclusive authority. Are they any judges out there who think that jurisprudential philosophies other than their own are acceptable? I haven't read any of their decisions if they exist. Reading a little further, we find the classic ill-informed 'originalist' attack on liberal judges:

The appellate judges of the 9th Circuit know perfectly well that such an equation was never the intent of framers who wrote the First Amendment. These liberal judges simply do not give a damn. Their personal modern-day ideological agenda is what matters to them, not the intent of the authors of the Constitution.

Conservative judges would never allow for that. Well let's look at a few interesting areas of law: segregation, affirmative action, and gender discrimination.

First, let's have an originalist explain Brown on its face. Mike McConnell has tried (and failed in my opinion). Considering the authors of the 14th Amendment allowed school segregation in D.C. and in most Northern states (i.e. the ones that didn't ban blacks outright), how can that decision be seen as anything other than flaunting the intent of the authors? Damn those liberals and their pretensions. Look what they did! They forced white children AND black children to attend the same schools! What would the framers have thought!?!

Now let's ask Scalia why the Constitution bans all racial classifications (thus disallowing affirmative action). Do you see that in the text? I sure don't. He can say that it's the most natural reading of the text, but that doesn't make it true. The fact that the authors of the 14th Amendment were in no way committed to color blindness (see segregation above) and passed the Amendment in large part to give Congress power to make race-specific remedies, makes Scalia's claim more dubious. It certainly suggests that maybe, just maybe, his personal views on affirmative action might be informing his 'natural' reading of the text.

Finally, let's hear Robert Bork waffle some more on whether women are protected by the 14th Amendment. It doesn't take a history degree to realize that the authors of that amendment didn't believe in gender equality. Yet the amendment has been so applied, apparently another result of liberals wresting control of the country away from the intent of the framers.

Let's not even touch Bush v. Gore. It's just too much evidence, and wouldn't make it a fair fight.

I will say that I'd sincerely like to hear more of Bush's "common-sense nominees" argue against Brown or gender equality on a constitutional basis. It would ensure their defeat in the Senate and popular opinion.

The point? Of course the liberal 9th Circuit has made questionably principled and decidely liberal decisions. Just as the conservative 4th Circuit has made questionably principled and decidely conservative decisions. Just as the Supreme Court has made questionably principled and both liberal and conservative decisions in its time. It's not a problem of politics, it's a problem of principles, pragmatism, and jurisprudence. And it affects all our judges, NOT just the liberal ones.

Lawrence v. Texas

The Christian Science Monitor has a good summary of the issues at stake in Lawrence v. Texas, the SC's new sodomy case being heard this week. My conlaw professor and I are in agreement that the ruling will almost certainly overturn Bowers v. Hardwick, but even then the question remains how far the court will go. As the story points out, the court really has three options:

They can uphold the Texas law, stating that it is up to elected lawmakers to grapple with such difficult social issues.

Second, they could declare that the law violates equal-protection principles by treating gays differently. Such a ruling would invalidate homosexual-conduct laws in four states, but might leave intact similar, but broader, laws in the nine other states.

Finally, the court could issue a much broader ruling that American bedrooms are off limits to state scrutiny because they are protected by fundamental concepts of liberty and privacy that earlier courts have identified in the Constitution. Such a ruling would invalidate all 13 homosexual-conduct laws nationwide, and would overturn a 1986 court precedent upholding Georgia's sodomy law.

Should be a very interesting decision.

Lawrence v. Texas

The Christian Science Monitor has a good summary of the issues at stake in Lawrence v. Texas, the SC's new sodomy case being heard this week. My conlaw professor and I are in agreement that the ruling will almost certainly overturn Bowers v. Hardwick, but even then the question remains how far the court will go. As the story points out, the court really has three options:

They can uphold the Texas law, stating that it is up to elected lawmakers to grapple with such difficult social issues.

Second, they could declare that the law violates equal-protection principles by treating gays differently. Such a ruling would invalidate homosexual-conduct laws in four states, but might leave intact similar, but broader, laws in the nine other states.

Finally, the court could issue a much broader ruling that American bedrooms are off limits to state scrutiny because they are protected by fundamental concepts of liberty and privacy that earlier courts have identified in the Constitution. Such a ruling would invalidate all 13 homosexual-conduct laws nationwide, and would overturn a 1986 court precedent upholding Georgia's sodomy law.

Should be a very interesting decision.

Ahh the Irony

Scalia is a brilliant man, but sometimes he just makes me laugh:

Supreme Court Justice Antonin Scalia banned broadcast media from an appearance today where he will receive an award for supporting free speech.

The City Club usually tapes speakers for later broadcast on public television, but Scalia insisted on banning television and radio coverage, the club said. Scalia is being given the organization's Citadel of Free Speech Award.

Can you taste the sweet sweet irony?


CNN reports:

An anti-abortion extremist who claimed he only meant to wound an abortion provider was convicted Tuesday of second-degree murder for the doctor's 1998 sniper slaying.

Interesting case, in that the defendant, extradited from France with a promise he wouldn't face the death penalty, waived his right to a jury trial and did not contest the prosecution's case.

Gender Discrimination II

Another thing that gets me is Rehnquist's skepticism that men ought to be able to sue for gender discrimination (dissenting in Craig v. Boren):

The Court's disposition of this case is objectionable on two grounds. First is its conclusion that men challenging a gender-based statute which treats them less favorably than women may invoke a more stringent standard of judicial review than pertains to most other types of classifications...

There is no suggestion in the Court's opinion that males in this age group are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts

Fair enough. But couldn't this exact line of reasoning be used to distinguish racial discrimination against blacks from affirmative action for them?

Why should whites challenging a race-based statute which treats them less favorably than blacks be able to invoke a more stringent standard of judicial review than pertains to most other types of classifications? After all, there is no suggestion that whites are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts.

Gender Discrimination

Having finished the readings on racial discrimination (from Dred Scott to Adarand), covering slavery, separate but equal, school segregation, and affirmative action, I was left totally convinced that the Supreme Court (reflecting popular opinion) lacked any real coherence in the entirety of its rulings. Now I've just done the reading on gender classifications, and am amazed to find the Court making even less sense in that realm.

How is it that affirmative action for blacks, the group for whom the 14th Amendment was enacted in the first place, is subject to strict scrutiny, but affirmative action for women is not? And if affirmative action for women were to be subjected to strict scrutiny, how could it be that the standard would be higher when the gender classification helps women (affirmative action) than when it hurts them (where intermediate scrutiny is still the rule)?


Racial Profiling

Reuters is reporting that NJ has outlawed racial profiling by its public officers, including police.

This is a very tough issue, both because the courts have been reluctant to involve themselves in analyzing the pretexts of police procedure and because at some level there are emprical correlations between race, poverty, and crime rates. The latter was raised heavily after 9/11 in criticism over the reluctance to focus on Arabs in airport searches (instead searching elderly women, etc.).

As a strong skeptic of police procedure, I'm sensitive to the arguments against racial profiling. Unfortunately it is hard to present a coherent strategy for eliminating it without overburdening our police or preventing them from using effective strategies for eliminating and preventing crime.

I'd hate to have seen a police officer choose not to investigate an Arab-American (or any other race) whom he had probable cause is committing a crime (say planning to hijack a plane) because he's afraid of running afoul of this new law.

JAG in Class

We had a guest speaker in my International Human Rights Class today, a professor from the Army JAG school (which is next door) addressing the laws of war, and how JAG officers are trained. Obviously this presents great interest to me (just a few years until I'm over at the JAG school). Very professional and well-spoken officer, utilizing Powerpoint of course.

First video he showed us was the guiding of a precision-guided munition targeted at an SA-6 anti-aircraft launcher during the Kosovo conflict. As the bomb approached it's target, the person guiding the bomb saw a nearby church, and guided the bomb far away from its target into a field to avoid damaging the church.

The second video showed an airborne visual of a truck carrying Al-Qaeda members near a mosque. Those viewing the scene waited until the truck was well-clear of the mosque (which was audibly the primary concern of the targeting officers) before authorizing firing.

Both were examples of the care that the United States takes in its efforts to avoid collateral damage. I've seen videos showing when our bombs and missiles go astray, so this was a welcome perspective.

In training JAGs, he said there are four principles that are raised when deciding the legality of particular targets:

Four principles: military necessity, distinction (between military and civilian objects), proportionality (relation between civilian loss and military advantage), and unnecessary suffering.

On the last principle he made a good point about full metal jacket bullets, which do not splinter like bullets before them, thus lowering the chance of a slow death by lead poisioning.

He also talked about the trade-off between easy targets with higher civilian deaths and harder targets with lower civilian deaths but more danger to our troops (esp. pilots). Apparently there is no clear legal answer under the rules of war, but the American public is so risk-averse to our own casualties that we now tend to do more high-altitude bombing to limit the loss of pilots.

I'm not sure that anyone who listened to this man's class could honestly claim that there has ever been a major power so concerned with the means and methods it employed in warfare. We make mistakes and we make questionable decisions. But ethics and law are always at the forefront of the decision-making process, and that says a lot.

Material Support Prosecutions

Phil Carter has an article up on Findlaw arguing that the rise of Al Qaeda shows why "material support" prosecutions are key in the war on terrorism:

Some have argued that these prosecutions are a diversion and distraction from the real task of prosecuting terrorists. They could not be more wrong. Assuming the government's allegations against them are accurate, men like Ujaama, Arnaout and Al-Arian are as important to terror networks as the men who actually carry out terror attacks - perhaps even more so. Without such individuals raising money, arranging immigration, and providing other forms of support, the terrorists in Al Qaeda could not conduct the kind of operation we saw on September 11.

America faces a dangerously amorphous adversary in Al Qaeda. Defeating this enemy will require more than a head-on military strategy, or a crime-busting legal strategy. Instead, it requires a subtle combination of both - and it requires prosecutions not only of terrorists, but of those who fund them. We must analyze Al Qaeda to find its most vulnerable parts, and then attack those parts relentlessly using every tool at America's disposal - cutting each of the heads off the Hydra, and making sure it never re-grows.

Charges Dropped

TalkLeft has the story: San Francisco DA Drops Charge Against Police Chief.

I think this speaks very well of the DA. Too often prosecutors become too enraptured with the idea of victory at all costs, and forget that they are important decisionmakers in the justice system. At this point, with the discretion of judges being reduced by legislatively-mandated sentencing provisions, the prosecutor has as much discretionary power as anyone in the system. This discretion ought to be exercised in answer not only to the question of "Can I get a conviction?", but also "What is the proper charge?" Sometimes the answer is that no charge is appropriate, and it is good to see the DA in this case exercising that choice.

SC to Revisit Miranda

AP is reporting that the SC has taken a strange case involving Miranda rights:

Fellers provides an unlikely test case. He wrote his appeal without the help of an attorney, filing as a "pauper" without having to pay court costs. The Supreme Court receives thousands of such appeals a year, but only rarely agrees to hear one. The justices will likely appoint an attorney to argue Fellers' case next fall.

Fellers was barefoot and sipping a mug of what appeared to be tea when he sat on his couch talking to officers who came to his door in Lincoln, Neb. One officer was familiar to Fellers because they both worked as hospital volunteers. Fellers talked freely about getting into drugs after the breakup of his marriage and business problems.

He had been indicted on drug charges before officers went to his house, but they did not specifically tell him they were there to arrest him.

Apparently the police/prosecution are arguing that since he was not yet "in custody," his Miranda rights were not yet triggered. Guess we'll have to wait and see whether this SC wants to keep any substantial restraints on police procedure.

More on Three Strikes

Jeff Cooper has a post addressing the difficulty of constitutional line-drawing in sentencing provisions (re: Three Strikes), and points out the flaws in lawmaking by initiative:

[P]ublic passions, provoked by specific events, are not conducive to considered lawmaking, as California's three-strikes law--the harshest in the nation--demonstrates. Nuance and balance are difficult to capture in the initiative process; while the policy goal sought to be furthered by an initiative may be rational, there is, inherent in the initiative structure, a tendency to overreach in pursuit of that goal. California's three-strikes law is, in my view, a bad law. But a bad law is not necessarily an unconstitutional law.

S.F. Police Chief Indictment

Talkleft has had good coverage of the charges against S.F. Police Chief Earl Sanders and the involvement of D.A. Terence Hallinan. Now it looks like Hallinan has more P.R. trouble on his hands:

"Absolutely outrageous," was how one neighboring district attorney reacted to word that Hallinan had rolled ahead with the conspiracy indictments of Police Chief Earl Sanders, Assistant Chief Alex Fagan Sr. and five other officers despite his own reservations about being able to prove the case.

Hallinan's biggest problem is, he can't really fight back:

Hallinan's hands are tied in the public relations arena. For now, he can't release the 1,300 pages of testimony that persuaded a grand jury to issue the indictments. Legally, he can't even comment about what's being leaked to the press.

Stay tuned here (and especially at Talkleft) for more on this fascinating story.

Three Strikes Still In

Reuters is reporting that the Supreme Court upheld California's three-strikes law. This should not come as a surprise. As the majority decision (written by O'Connor) emphasized, the court almost always defers to the legislature on these policy decisions.

Though I strongly disagree with the three-strikes law, there really is not much the court can do in these cases. If the court is going to overrule sentencing provisions, they would have to articulate some defensible method of calculating what sentences are acceptable and which are not. This seems an almost impossible task from a judicial perspective, which is probably part of why they leave it to the political process to sort out.

UPDATE: Talkleft has more.

Gay Adoption Appeal has the details on the ACLU challenge of Florida's ban on gay adoptions, now headed to the 11th Circuit.

Dershowitz on Torture

Here's a transcript of CNN's debate on torture between Dershowitz and Ken Roth, Executive Director of Human Rights Watch. Some excerpts from Dershowitz:

I would talk about nonlethal torture, say, a sterilized needle underneath the nail, which would violate the Geneva Accords, but you know, countries all over the world violate the Geneva Accords.

He defends this on the idea that it's going to happen whether legally approved or not:

Don't you think if we ever had a ticking-bomb case, regardless of your views or mine, that the CIA would actually either torture themselves or subcontract the job to Jordan, the Philippines or Egypt, who are our favorite countries, to do the torturing for us?

Though probably true, this actually undermines Dershowitz's solution. He is taking for granted that our security forces will use torture, and there's nothing the law can do to stop it. That is a strange assumption for someone who then argues that we can control the use of torture using limited torture warrants in exceptional cases. After all, if the security forces will use torture now, when it is completely prohibited, why would the denial of a warrant stop them under Dershowitz's plan? It's a logically incoherent position.

Dershowitz thinks the "approval by the president of the United States or by a Supreme Court justice" creates accountability for torture. This necessarily means that if the President or SC justice refuses approval, the security forces would recognize that authority and restrain themselves. But if that is true, why can't the President or SC justice just say right now that no torture is acceptable? After all, Dershowitz admits that:

[I]t will much better if we never did it.

Juveniles Standing Trial as Adults

CNN is reporting on a study that suggests we take another look at trying children in adult courts:

The private MacArthur Foundation study released Monday said many children under 16 had as much difficulty grasping the complex legal proceedings as adults who had been ruled incompetent to go to court.

Subjects were given intelligence tests and asked to respond to several hypothetical legal situations, such as whether to confess to a police officer. The results found that one-third of those 11 to 13 and one-fifth of those 14 or 15 could not understand the proceedings or help lawyers defend them.

The study recommends that states reconsider the minimum age for juveniles to be tried as adults or to develop a system for evaluating young defendants' competence.

Slow Justice

There are constant (and valid) complaints lodged against the snail's pace of justice in American courts. Let's just say, India has it much worse:

The limitations are most apparent in an epic backlog of cases -- 23.5 million at last count, according to the South Asia Human Rights Documentation Center -- that has slowed the pace of judicial proceedings to a crawl.

Even routine commercial matters can drag on for years. A survey cited in the study, for example, found that 59 percent of corporate liquidation proceedings in state high courts took more than 10 years; 32 percent took more than 20 years. Some civil and criminal cases have been pending in Indian courts since the early 1950s.

Because of judicial delays, 73 percent of the country's jail population is made up of people on trial or awaiting trial, according to a report last year by India's Parliamentary Standing Committee on Home Affairs. Yet the rate of conviction for serious crimes is less than 7 percent -- which means that 93 percent of those arrested on serious charges ultimately go free.

Now obviously the inefficency and backlog are shocking and need to be addressed. But the stat that really jumps out at me is the 7% conviction rate! Who are these people and why are they being arrested in the first place? Compare that figure to America (over 50% conviction rate of those charged, even higher for those that go to trial) or Japan (99% conviction rate, itself controversial)

Drug War Casualties

And here I thought the American war on drugs was spiralling out of control (it is). The BBC reports:

Thai Prime Minister Thaksin Shinawatra has admitted that police might have made some "mistakes" in waging a bloody month-long war on drugs which has left more than 1,100 people dead.

Did they say month-long? Wow. If America's war on drugs had a casualty rate like that we'd be well into 6 figures. I suppose they can at least claim results:

Up to 27,000 alleged drug dealers have been arrested and about 5 million methamphetamine pills seized.

Well that is a lot of arrests, and it sure is a lot of pills. But 1,100 deaths in one month? I'm with Amnesty on this one.

FBI Looks the Other Way

AP has a story about the widespread recruitment of violent criminals as informants by the FBI:

The nine former FBI agents spoke - on the record - not to criticize the practice of overlooking violent crimes by informants, but rather to defend it as a necessary evil of criminal investigation

I'm currently taking a class on criminal investigation. I don't want to be overly simplistic, but there sure do seem to be quite a lot of necessary evils:

The former agents said it makes sense to overlook an informant's involvement in robberies or beatings if the information he is providing helps solve or prevent worse crimes. But sometimes, they added, even murders were ignored.

Some of the arguments made by the agents resemble arguments made in defense of torture and other such means:

"You have to weigh the odds of whether killing one or two people is better than killing a whole planeload," said Wesley Swearingen, whose service as an agent from 1959 to 1977 included tours in Los Angeles and Chicago.

Combine an institutional willingness to look the other way with the war on terrorism (and the proposed Patriot Act II), and a dangerous stew could be brewing.

Luckiest Defendant in the World

I have to think it'd be pretty comforting to a defendant to look over at the jury box and see Bill Clinton. Has anyone else in America been so thoroughly investigated (some might say persecuted)? The prosecutor has good reason to want Juror 142 disqualified.

UPDATE: Talkleft thinks Clinton is actually a bigger threat to the defense.

Glenn Reynolds and Sodomy

Glenn Reynolds thinks the anti-sodomy law in Lawrence v. Texas ought to be (and probably will be) struck down. He sees the issue involved as "observing traditional limitations on what�s a legitimate governmental concern." I wonder how he would apply this to the right to abortion.

UPDATE: Glenn says he's not sure, but does mention that the TN Supreme Court has extended the doctrine to include abortion (I think Planned Parenthood of Middle Tennessee v. Sundquist is on point).