US Equity Market Reforms

The Committee on Capital Markets Regulation today released a lengthy report recommending a series of regulatory and legal reforms and marketplace reforms designed to (as these things always seem to do) enhance American competitiveness. In the shareholder rights section, there's a proposal that exchanges adopt listing requirements that listed firms with staggered boards obtain shareholder approval of poison pills. (Actually, the first recommendation is that "Delaware should do this".)

Why should we expect that exchanges, acting independently, will adopt reforms that incumbent magament believes are inimical to their own interests? If memory serves, the NYSE long had a rule prohibiting the listing of shares in companies with dual-class voting. Then, when a big fish decided that it wanted to have dual-class voting and threatened to list on another exchange, the NYSE relented. (The SEC tried to limit the dual-class structure by adopting a rule 19c-4, lost a case over its authority to adopt the rule, and ultimately persuaded all of the exchanges to adopt a set of rules that nevertheless permit the continued existence of these structures.)

Dual-class voting is the kind of structure that typically leaves public common shareholders at the mercy of a family of founders. The bulk of the voting power rests in the hands of the holders of one class (like the Fords at Ford Motor, the Sulzbergers at the New York Times, the Rigases at Adelphia and the Dolans at Cablevision), while the public shareholders holding a majority of the economic interest have only a minority voting interest. I understand that public shareholders sort-of know what they're getting into when they buy these shares. (It's "sort-of" because the voting structure is fully disclosed, but the prospective business acumen of succeeding generations of Fords, Sulzbergers, Rigases and Dolans is not disclosed. Prescott Bush begat George H.W. begat George W. begat Jenna and Barb, and I rest my case.) But the public also knows what they're getting into with staggered boards, so why is this qualitatively different?

Global Warming, Standing and Stem Cell Research

Yesterday's oral argument in the global warming case, Massachusetts v. EPA (transcript here) included considerable discussion of the "redressability" prong of Article III standing doctrine. To oversimplify, the courts deny legal standing where the plaintiff(s) cannot establish that a favorable ruling will actually redress the injury alleged. There is certainly some logic to this requirement: where the relief sought has nothing to do with the harm alleged, then it does look like the plaintiff is asking for an effectively advisory opinion. But the Court's doctrine--and especially the way the lawyer for the U.S. read that doctrine in colloquy mostly with Justice Souter yesterday--goes well beyond that, essentially denying the right to a day in court to someone whose injuries will only be partly addressed by a favorable ruling. Where there is at least a logical connection between the alleged injury and the relief sought, it is not at all clear why standing should be denied on the ground that the relief might not make the plaintiff better off. If that's what the plaintiff wants, shouldn't the courts at least give the plaintiff the opportunity to show that the sought relief is his legal right?

Indeed, the strict application of the redressability prong reminds me of a satirical comment by John Stewart a couple of years ago when Laura Bush expressed support for limiting federal funding for stem cell research on the ground that promoting stem cell research gives Alzheimer's and Parkinson's patients and their families false hope. "It's not fair," the First Lady said, to raise hopes "because stem cell research is very, very preliminary." Stewart mockingly agreed that it would take many years of painstaking research to achieve medical breakthroughs, "so why start?"

The Artist's Affidavit

I was entertained by the recent Second Circuit opinion in Blanch v. Koons, in which the court determined that the prominent contemporary artist Jeff Koons had not infringed the copyright of Andrea Blanch in her photograph of a pair of shoe-shodden women's feet.

The photo appeared in print once, in an issue of Allure Magazine. Koons painted* a set of big panels called "Easyfun-Ethereal" that were installed at the Guggenheim in Berlin. All of the paintings in the series were "fragmentary images collaged against a landscape"; Niagara depicted "four pairs of women's feet and lower legs dangling prominently over images of confections . . . with a grassy field and Niagara Falls in the background." One of the sets of feet was a scanned image of Blanch's photo.

Koons ends up winning on his "fair use" argument because of the transformative nature of his copying. That aspect of the "purpose and character" element seemed (in my view) to overwhelm the remaining factors set forth in 17 USC § 107. He takes Blanch's work and the works of others; copies portions of them; and puts them into a different medium. It's like a visual artist's equivalent of music sampling.

But how do you determine that there's a transformation at work? One way, I suppose, is to ask the viewer of the Koons work what the viewer perceives, since that would be a fair test of whether Koons succeeded in turning the original work into something different. That's not what happened, though. Instead, Koons offers his own affidavit as to his purpose in copying, written in Artspeak:

"Although the legs in the Allure Magazine photograph might seem prosaic, I considered them to be necessary for inclusion in my painting rather than legs I might have photographed myself. ... Images almost identical to them can be found in almost any glossy magazine, as well as in other media. To me, the legs depicted in the Allure photograph are a fact in the world, something that everyone experiences constantly; they are not anyone's legs in particular. By using a fragment of the Allure photograph in my painting, I thus comment upon the culture and attitudes promoted and embodied in Allure Magazine. By using an existing image, I also ensure a certain authenticity or veracity that enhances my commentary -- it is the difference between quoting and paraphrasing -- and ensure that the viewer will understand what I am referring to."

(Let me add here that Judge Sack noted that the ramblings were "without contradiction", as though one could ever begin to contradict what flowed through the artist's mind, filtered through a lawyer's word processor.)

The judge added, "We have been given no reason to question his statement that the use of an existing image advanced his artistic purposes." Now, you need to know a little bit of inside baseball: Jeff Koons had been to the Second Circuit before, in a case called Rogers v. Koons. There, the court decided that his sculpture "String of Puppies" infringed Art Rogers' copyrighted photo of "Puppies". Koons had taken a notecard with a black and white copy of the photo, and instructed his assitants on how to take the photo and render its subject matter as a 3-D colored sculpture.

The panel in the Rogers case downplayed Koons' creative process, and played up Rogers'. Koons sees the photo; he thinks,"hey, this is 'typical, commonplace and familiar' and 'part of the mass culture'"; he concludes that its subject matter is appropriate for his "Banality Show"; he builds the sculpture. Rogers, on the other hand, is much more of a serious artist. Having been engaged by his patron to render a portrait of a litter of German Shepherd puppies (read, "Art, could you come over to my place and take some pictures of my new puppies"), Rogers had the brilliant artistic insight to conclude that it would be best if someone held the puppies (read, "The puppies are running around too much. Could you hold the puppies?") Koons explains that in his copying he is commenting on the commonplace (the images were "typical, commonplace and familiar") and part of the mass culture "resting in the collective sub-consciousness of people regardless of whether the card had actually ever been seen by such people." Here's the key, though: the implication of Koons' affidavit is that he is commenting on mass culture at large, rather than on this particular expression of mass culture. Rogers wins, Koons loses.

So what's a bigshot artist to do when it's time to defend the Easyfun-Ethereal murals? The real artistry was in drafting the affidavit. The explanation assures that where Koons takes a bit of Allure, then he explains it as a comment on Allure and not as a comment on materialism in general. But does anyone seriously believe that anyone viewing Niagara at the Guggenheim in Berlin has any clue at all that this snippet was a comment on Allure? By putting the emphasis on factors -- the artist's internal justifications -- that are objectively unverifiable, the decision substantially decreases the value of the copyright.



______
* Actually, he had his assistants paint it. From what I gleaned in the opinion, when you get to be a bigshot artist, you don't actually have to paint or sculpt things; you get some inspiration and your staff does the messy work.

Laptops in the Classroom

During the semester now nearing its end, I conducted an experiment in which I strongly discouraged my first-semester first-year civil procedure students from using laptops, for reasons largely captured in Sherry Colb's FindLaw column published in early September. I reproduce the text of my policy at the end of this post. I'm going to query my students about their reaction to the policy in the anonymous course evaluations they'll shortly fill out, and I'll report on the results when I have them in January. I've been pleased by the level of attention and my sense so far is that while students were initially skeptical, they adjusted. On a typical day, the number of students using laptops is 0 or 1 (out of a class of 27).

For now, I thought I'd just add an anecdote. Mostly through carelessness, I neglected to discourage laptop use in my seminar this semester, even though there is even less need for taking detailed notes in a seminar than in a doctrinal course. Thus, about half the students brought their laptops, which have sometimes proved an attractive nuisance. For example, yesterday, in discussing a student paper, the following two questions arose: 1) How many cities in the United States have populations greater than the state of Wyoming? 2) Is the percentage of the population of Utah that is Mormon larger or smaller than the percentage of the population of Rhode Island that is Catholic? Answering these questions was in no way urgent, and the second question turns out to be trickier to answer than one might think because of flaws in the way the data are collected. Nonetheless, while the discussion about other points continued, tacitly encouraged by me, at least 3 of the 16 students in the seminar busily used their laptops to track down answers, paying at best modest attention to the discussion.

Here's the policy I included in my civil procedure syllabus, which others are free to borrow:

Use of Laptop Computers and Other Electronic Devices

Nearly all of you come to law school accustomed to taking notes on laptop computers. I strongly urge you to try to break the habit. A raised screen creates a barrier between you and the class. It encourages you to take verbatim notes rather than listening and writing down the most important material. And it will impede your ability to undertake an extremely useful exercise at the end of the semester: the distillation of your handwritten notes, case notes and other materials into a succinct outline; students with notes taken originally by computer will be tempted simply to treat those notes as an outline. Generations of students (including mine) succeeded in law school without laptop computers, and anecdotal evidence suggests that they were better able to give their undivided attention to class. Moreover, you will find that in many professional contexts—client meetings, strategy sessions with colleagues, depositions, etc.—you will be able to take notes, if at all, only by hand. You would do well to grow comfortable doing so now.

Nonetheless, I do not prohibit laptop use in my classroom. If you decide you do wish to use a laptop computer to take notes, please note that this is the only purpose for which you may use it in class. You may not use your computer to surf the web, check email, IM your classmate the answer to a question I’ve asked, or any other such purpose (except on those rare occasions when you need to look up web-based material relevant to the course, such as a statutory provision). This prohibition applies equally to use of Blackberries, Treos, mobile phones, and other handheld devices. Unless you are expecting genuine emergency news, turn off such devices before coming to class. I will not specifically police this prohibition, but if I notice someone using a laptop or other device for a forbidden purpose, he or she will lose the use of the laptop for the duration of class that day; repeat offenders will lose the use of the laptop in class for the duration of the semester.

Follow-up on Lawyering in the Louisville case

In response to my blog posting about the inadequate brief filed by the petitioner's lawyer in the Louisville voluntary integration case, I received an email yesterday from Professor Sam Marcosson, who teaches at the Brandeis School of Law at the University of Louisville. Professor Marosson had the lawyer (Teddy Gordon) as a guest in his constitutional practice seminar earlier in the semester, and the students gingerly asked why he had filed such a short brief. Gordon replied that he read the Supreme Court rules, and they stated that oral argument shouldn't repeat what's in the briefs, so he wanted to "save" his strongest points for oral argument. Oi!

Apparently, Gordon also rejected an offer from Ted Olson to argue the case. I wonder whether he made that decision in consultation with the client. It's hard to imagine the client rejecting such an offer, at least on the assumption that Olson would have been paid by someone else.

Sea Change

Even Alexander Bickel argued that our Supreme Court best acquits itself when it acts as the institution of “decency and reason,” when it uses its docket to “define values and proclaim principles.” But when the Court hears oral argument in Massachusetts et al. v. EPA on Wednesday—the Court’s first foray into global warming, the single biggest environmental issue of our time—don’t hold your breath waiting for it to do any of that. Dollars to donuts says the Court pulls a duck and cover that will rival the one our current administration is pulling.

The case focuses on a few provisions of the massive Clean Air Act, a statute many think was Congress’s last and greatest attempt to legislate a comprehensive federal response to environmental degradation. In a nutshell, the Act requires EPA to “prescribe . . . standards applicable to the emission of any pollutants from any class or classes of new motor vehicles or new motor vehicle engines, which in [its] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Twelve states, three cities, one territory, and thirteen nonprofit organizations have pressed EPA since 1999—and now have petitioned the Supreme Court—asking, basically, how the Clean Air Act could possibly exclude this biggest of all air pollution debacles. As the petitioners have argued throughout the litigation, how EPA could reasonably conclude that greenhouse gas emissions from automobiles are not within that particular category of “air pollution” is, well, a mystery.

One of Professor Bickel’s favorite avoidance techniques is presented in the case, of course: the issue of standing. While the cert. grant purported to exclude the standing issue (bizarrely, probably as a result of the Court’s policy of granting or denying petitions as written), it is a federal court’s independent duty to raise such issues under our separation of powers. I’m told there is a good argument to be made that climate change represents injuries too broad, widespread, and common to be the kind of thing driving an Article III “case” or “controversy” (I’m told; I’m still waiting to hear it). But I think another doctrine that has become one of the Court’s favorite avoidance techniques will end up on top in this one: Chevron. As I’ve written in a forthcoming article in Florida State U. L. Rev., available here, the Court uses Chevron capriciously enough to serve as “Exhibit A” in the political scientists’ brief that courts are driven by preference alone. In fact, Chevron itself was a Clean Air Act case and it seems even more suited to this controversy than it was to the new source review issues that provoked Justice Stevens’s now infamous formula on deference to agencies. But given the fact that the Supreme Court is our only court controlling (virtually) its whole docket, what is so “passive” about such an evasion? It seems to me that it would “define values”—just not good ones.

More on Multiculturalism

I enjoyed Alon's post and the comments on it. They raise the problem of what we might call the paradox of tolerance (that is, that intolerance must be tolerated and that if intolerance prevails in the battle of ideas, then tolerance will be no more -- a variant on one person, one vote, one time). Nomi Stolzenberg at U.S.C. Law Center wrote an article in the Harvard Law Review (on which I was a research assistant, just to give you a sense of how long ago we're talking about) called something like "He Drew A Circle That Shut Me Out: An Assimilationist Critique of Pluralism" that captures these issues very well. My own view is that in a battle between multiculturalism and equality, equality ought to win. This sort of thing comes up quite regularly when religious groups (and it does, unfortunately, tend to be religious groups) deny women and gay people an equal place in their societies and then demand that the surrounding society "stay out" and allow the subordination of its members. When the members "choose" subordination, then I suppose they are -- in the absence of contrary evidence -- consenting adults, and one must tolerate it with some of the same distate that one might tolerate a sexual practice in which one member of the couple consensually burns the other member with cigarettes. But once a "member" objects (or, in the case of children, once someone notices that children are being subjected to subordinating practices), I no longer believe that tolerance should thrive. Karima Bennounce, my colleague at Rutgers, has a fasinating article coming out (I believe in the Columbia International Law Journal) about Turkish and other limits on Muslim covering of girls at school.

Turow on Scalia in Hamdi

As many readers probably know, Scott Turow has an essay in yesterday's New York Times in which he suggests that Justice Scalia may end up being one of the most important defenders of civil liberties on the Court, especially in future "war on terror" cases. Turow makes some interesting points about Scalia opinions in a number of recent civil liberties cases, including Apprendi v. New Jersey. But he seems to place the most weight on Justice Scalia's dissenting opinion in the 2004 case Hamdi v. Rumsfeld. And there, I think Turow is quite wrong. (Warning/shameless plug: much of what follows in this post is derived from a recent article of mine, "Hamdi's Habeas Puzzle: Suspension as Authorization?" 91 Cornell L. Rev. 411 (2006). A draft of the article is available here.)

As most readers probably know, Hamdi involved a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case divided the Court, producing four opinions in all. A majority of the Court ultimately agreed that Congress authorized this sort of detention when it passed the Authorization for Use of Military Force (AUMF) in the immediate aftermath of 9/11, but that detainees like Hamdi have a due process right to challenge their detention and the accuracy of their designation as enemy combatants. Justice Scalia dissented in an opinion joined by Justice Stevens. In his view, it was irrelevant whether Congress had intended to authorize enemy combatant detention when it passed the AUMF, for Congress simply cannot authorize such detention by ordinary legislation. Instead, he maintained that the government's only options with respect to U.S. citizen detainees are to (1) charge them criminally, (2) release them, or (3) convince Congress to suspend habeas corpus.

Many commentators (including, apparently, Turow) have hailed Justice Scalia's opinion as a paragon of civil libertarianism. They often do this by ignoring the third option listed above. Turow, for example, reads Justice Scalia to say that when it comes to a U.S. citizen like Hamdi, the government "must press criminal charges or let him go." But that's not complete. In several places throughout his opinion, Justice Scalia made it clear that another option would be for Congress to suspend the writ of habeas corpus. For example, he stated early in his opinion that, "[a]bsent suspension, . . . the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge." (My article, linked to above, discusses this and other similar passages at length.) In short, Justice Scalia's position is that suspending the writ of habeas corpus is necessary and sufficient to authorize the otherwise-unlawful extrajudicial detention of alleged enemy combatants.

I think Justice Scalia's view of suspending the writ, which I call "suspension as authorization," is both formally untenable and functionally undesirable. Formally speaking, suspending the writ simply removes a judicial remedy, albeit a very important one. It does not change the legality of the underlying government conduct. If, as Justice Scalia opined, the extrajudicial detention of U.S. citizen enemy combatants is not something Congress can authorize by legislation like the AUMF, removing the principal remedy against unlawful detention does not make the detention lawful.

Functionally speaking, Justice Scalia's approach effectively invites Congress to read one branch of government (the judiciary) out of the equation in order for another (the executive) to act. But that is contrary to the basic principle of checks and balances established by the constitutional separation of powers. The problem is even worse when one recognizes that, in Justice Scalia's view, Congress alone has the authority to decide whether the predicates for suspending the writ have been met. The Suspension Clause provides that habeas shall not be suspended "unless when in cases of rebellion or invasion the public safety may require it." In Hamdi, Justice Scalia took the position that the courts have no role to play in second-guessing Congress's determination that such a "rebellion or invasion" exists. On that view, if Congress decides that the global war on terror itself amounts to an "invasion" requiring the suspension of the writ, its determination is conclusive on the judiciary. And once the writ is suspended, otherwise illegal extrajudicial detention becomes lawful, with the courts having no role to play. Hardly a bold stand for civil libertarianism.

(I should note that there are two new articles about to appear that may well bear on these matters. David Shapiro of Harvard has a piece forthcoming in the Notre Dame Law Review apparently arguing, contra me, that suspending the writ does affect the underlying legality of the detention, at least in some respects. And Amanda Tyler has a piece forthcoming in the Stanford Law Review arguing, contra Scalia, that suspension of the writ is not a political question. I'm looking forward to reading both pieces when they appear.)

Celebrating the 'brilliance' of Daniel Farber -- and the law

This year marks the 20th anniversary of what is still to my mind the greatest law review article I’ve ever read, Daniel Farber’s “The Case Against Brilliance” (70 Minn. L. Rev. 917 (1986)). Farber’s article was a critique of two then-recent law review articles, one by Dworkin and the other by one-time Michael Dorf co-author Laurence Tribe. Both articles, Farber argued, are examples of brilliant scholarship. For example, Dworkin’s article, as I remember, had demonstrated counter-intuitively how Rehnquist’s dissenting opinion in Garcia v. San Antonio Metro. Transit Auth. (469 U.S. 528 (1985)) (which argued in dissent that the 10th and 11th amendments immunized state governments from federal employment regulations) actually endorsed constitutional recognition of social welfare rights. The problem, according to Farber, is that such brilliant, counterintuitive arguments are simply incompatible with how the law, or at least the common law, really works. The law, unlike say economics, is meant to speak to the everyday person. A ‘brilliant’ legal argument – almost by definition – is one that would not be foreseen by the everyday person. For this reason, the attribute of ‘brilliance’ runs counter to what the law is really about.

To my reading, I have never seen an effective refutation to Farber’s argument. But I found my mind revisiting Farber’s wonderful idea recently in reading about radical constitutional satire in early 19th century England. One of the defining features of this satire was a (feigned) extreme naiveté on the part of the satirical observer, a naiveté that took the government and its vision of the English constitution at its word and then sought to reconcile that word with actual state of society around it. (Obligatory legal reference: this naiveté originally emerged as a way to protect writers against charges of seditious libel.) The genius in the satire was found in the absurdity of the reconciliation. Interestingly, this description of satire resonates very closely with Nicholas Luhmann’s and Gunther Teubner’s famous description of the law as an ‘autopoietic system’, by which they meant that the law is ‘normative closed’ – i.e., the law takes its own nornative pronouncements as given and uncontestable – and yet ‘cognitive open’ – i.e., it is still able to perceive empirical events of the society around it. Seen in this light, there appears a real resonance between what Dworkin was doing for American constitutionalism with his ‘brilliant’ reinterpretation Rehnquist’s dissent and what early 19th century radicals were doing for British constitutionalism with their satirical reinterpretations of Blackstone.

And I wonder if herein might lie at least one response to Farber’s article. I recall reading that Pablo Picasso once said that it had taken him many years to learn how to draw like a child. Similarly, one could argue that it’s taken the common law many years to learn how to appear to be so very not-brilliant. Is ‘brilliance’ in legal scholarship really just a satire of the common law’s brilliant anti-brilliance? If so, does it contribute to the common law what satire contributed to English constitutional development of the early 19th century? Is it perhaps an entertaining and somewhat paradoxical reminder of what the law is not? Is it a reminder not to take the law as seriously as it must take itself? Is it perhaps a reminder of how the law’s non-brilliance is often itself the product of a (perhaps unintentional) brilliance that is superior to our own?

And, of course, this was precisely the ‘brilliance’ of Farber’s own article. It exposed something important about what the law is not (i.e., ‘brilliant’); it reminded us not to take the brilliance of the law so seriously; and it suggested that the law was much more brilliant in its non-brilliance then we could ever be in our brilliance alone. All in a wonderfully entertaining fashion. It was satire in the purest – and very best, and most useful – sense. And this is probably why I regard it as the best law review article I’ve ever read.

Will/Should the Democratic Congress Have a Civil Liberties Agenda?

After unsuccessfully ignoring the Iraq war in 2004, a great many Dems successfully ran against the war this year. There was something missing, however. Admittedly, I didn't watch every last snippet of coverage, but in what I did watched I saw no mention whatsoever of what might be called the "civil liberties" issues raised by the Iraq War (think Abu Ghraib) and the broader "war on terror" (think Gitmo and domestic electronic surveillance). Because I generally trust that politicians have a better sense of what will and won't play to public opinion than I have, I suspect that the absence of a civil liberties agenda in the recent campaign reflects the view of the American people that it's worth sacrificing some liberty and privacy for increased security, especially if the people doing nearly all of the sacrificing are aliens and other "others."

To be sure, it is not clear what a Democratic Congress could actually do on these fronts, even if it wanted to. If Congress passed a bill that substantially amended the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, Bush would likely veto it. And as to domestic surveillance, FISA already pretty clearly prohibits it. The Administration's argument is that the Authorization for Use of Military Force (AUMF) of September 2001 activated the President's supposed inherent wartime authority to engage in all manner of surveillance, notwithstanding FISA. That's a very weak argument, but again, should Congress attempt to remove all doubt by passing a bill making clear that the AUMF did not override FISA, Bush would likely veto. So the most Congress can do on these fronts is to hold hearings.

But I'm not even persuaded that they'll do that much, if I've rightly understood the official read of the public mood. If so, that's unfortunate, because I think the public is movable on this front. The distinction between "terrorists" and "millions of law-abiding citizens, a tiny handful of whom may or may not be linked in some way to suspected terrorists" should not be all that difficult to make clear. And on detainee treatment, I actually think that the public is uncomfortable with the idea that the U.S. routinely uses "harsh forms of interrogations." How else to explain the constant misdirection by the Administration? The public proclamations that we don't torture, the use of euphemisms, and the minimization of techniques we actually admit to using (e.g., calling waterboarding a dunk in the water) all bespeak a reluctance to say what the Administration actually supports, for fear, I think, that the public would disapprove. So I would urge the new Democratic Congress to have the courage of its convictions, if only I were persuaded that a concern for civil liberties is among the convictions of a majority therein.

What Multiculturalism Is Not

The recent controversy concerning the gay pride march in Jerusalem provided an interesting example of the internal conflicts within multiculturalism and the failure of self-declared secular multiculturalists to understand the values underlying their own ideology.
The facts are simple. A gay pride march was scheduled to take place in Jerusalem. The ultra-orthodox community threatened to use violence against the marchers. In their view the march is an affront to a holy city. In a rare display of solidarity, rabbis, priests and Muslim clerics all united against the parade. The police joined the efforts to ban the march by issuing serious warnings concerning expected violence and declaring that it would be incapable of protecting the marchers. After lengthy negotiations, conducted under the pressure of the attorney general, it was agreed that a rally instead of a march will take place in track stadium in Jerusalem.
Politically the religious opposition to the march was supported by many secular leftists on grounds of multiculturalism. The event was even described by multiculturalists as a flagrant unnecessary provocation. Why, it was argued, should the gay marchers march in conservative Jerusalem? After all, the religious community in Israel is a minority entitled to its own safe haven and the streets of Jerusalem should provide an environment which is congenial to the ultra-orthodox way of life. Multiculturalism, under this argument, dictates that minority communities should be able to sustain their forms of life uninterrupted by conflicting traditions and restrictions on the expression of sexuality in Jerusalem are a reasonable concession to make for the sake of respecting the sensitivities of the ultra-orthodox community.
This view represents a serious misunderstanding of what multiculturalism is or at least ought to be. To the extent that multiculturalism is valuable, its value stems from the enrichment of people’s life by exposing them to different ways of life. Lives lived in the boundaries of culturally homogeneous communities cannot be enriched by the interaction with different ways of lives. The cultural isolation of these communities impoverishes the lives of their members. Secular advocates urging the gay community to respect religious sensibilities fail to understand the values underlying their own ideals. Multiculturalist discourse ought not to be used as a strategy for isolationism.

The Water's Edge and the Iraq Study Group

I have always been puzzled by the claim that "politics should stop at the water's edge." I don't mean that I fail to comprehend the aphorism. The idea is simple enough: Foreign policy matters are of such great importance that partisans should put aside their petty squabbles to come together in the national interest. What puzzles me is how anyone could think just this. The saying seems to assume that it IS okay for us to have politics -- understood as a debased, dishonest discourse -- about such domestic matters as wealth distribution, environmental protection, medical care, and so forth. Even if one thinks that these issues aren't quite so important as foreign policy, they're certainly important enough that one wouldn't want them to be "politicized." If this is one's view, then one should simply say "politics should stop."

I happen to think that in some circumstances, what I'll call "small-p" politics are just the ticket in matters of foreign policy. For example, in a well-functioning electoral system, the public, having soured on the Iraq war, would have turned out not just a few dozen Republican Senators and House members but hundreds of members of both parties who supported this tragic policy blunder in the first place. The political cowardice of leading Democrats in 2002 and 2003 left the nominally opposition party unable to criticize the misadventure in 2006 as fundamentally foolhardy, relying instead on the considerably weaker, albeit still potent, argument that the occupation was bungled through arrogance and incompetence. (I take no satisfaction in the fact that my early criticisms of the war's legality and possible consequences have been largely vindicated.)

As the nation anticipates the recommendations of James Baker's bipartisan Iraq Study Group, however, I have come to see the "water's edge" from a somewhat different perspective. Any successful extrication of the United States from Iraq will have to be able to define success in a way that would have been unthinkable by the war's proponents four years ago. Because Saddam lacked WMDs, the war necessarily did not disarm him; a secular constitutional democracy that will be a model for the whole Middle East is an impossible prospect; even the possibility of a Western-friendly autocracy like Egypt or Jordan now looks like far too much to hope for; realistically, stable partition with the largest portion of Iraq aligned with Iran is at the optimistic end of what we might still accomplish. If we had healthy politics, this outcome would end not only the political career of the Republican bunglers in charge, but also their Democratic facilitators. But we don't have healthy politics, and in order for our current, tainted politicians to be able to save face, those of us who opposed this war from the very beginning may have to accept the forget-about-how-we-got-into-this-mess-here's-what-we-should-do-now spirit in which the Baker report will likely be presented and received. That may be the price of ending U.S. involvement in the Iraqi civil war we catalyzed, and if so, it may even be a price that we longtime critics should be willing to bear. But it's worth noting that "politics should stop at the water's edge" here really means something more like "criticism of the politicians in charge should stop at the water's edge." Maybe that's all it ever means.

Still more on non-lawyer and "lawyer-plus" Justices

I commend to readers the first two comments posted on Trevor's post, which make very good points. Here are a few further thoughts:
1) I continue to think that in general the call for non-lawyers on the Court emanates from a right-wing populist attack on the perceived liberalism of the Court. I'm not calling Vermeule either right-wing or populist. He's making an academic proposal, which is something else altogether. As an aside, it's notable that lawyer-bashing is a common form of right-wing populism, while the idea of the heroic lawyer standing up for the little guy is a common form of (American) left/liberal populism. (Think Erin Brockovich, John Edwards, etc.)
2) The weak form of Vermeule's proposal--inter-disciplinary Justices--cuts against the populism and anti-lawyer cast of the strong form. Those with PhD's as well as JD's are likely to be even more remote from the values of the volk than plain old lawyers. This would hardly satisfy Scalia's opposition to the "lawyer class" as expressed in his Romer dissent.
3) So we can understand the weak Vermeule position as sounding in technocracy, whereas the strong version sounds in populism. It's curious to marry these positions to one another--although early 20th century Progressives tended to be both populists and technocrats. Vermeule, for what it's worth, is a fan of Dewey, so who knows? Maybe he wants to reconnect these strands. ("Democratic experimentalism" of the sort I have offered in some of my academic work also seeks to recapture these connections.)
4) Historically and still today, our legal system has received democratic input principally in two places: a) electoral representation; and b) juries. The notion that the law interpreters should also be in touch with popular sentiment as well likely reflects the trickling down to the general population of legal realism.

More on lay justices

Mike's interesting post on the idea of non-lawyer justices on the Supreme Court brings to mind a recent article by Adrian Vermeule of Harvard Law School, entitled "Should We Have Lay Justices?" In a word, Vermeule's answer is "yes." As he says in the abstract, "I argue that the optimal number of lay justices [on the Supreme Court] is greater than zero. In the strong form of the argument, an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court. In a weaker form of the argument, we should at least appoint dual-competent justices - lawyers who also have a degree or some other real expertise in another body of knowledge or skill."

There's quite a difference between the "strong" and "weak" forms of Vermeule's argument. The former calls for lay justices drawn from other fields; the latter calls for justices trained in the law who are also expert in some other field -- viz., for interdisciplinary justices. Let's focus just on the latter version. What do readers think of it, as opposed to what we have now? Interdisciplinarity is increasingly common in the legal academy, or at least in some sectors of it. I tend to think that's a very good thing, even as I continue to think (somewhat self-interestedly) that there remains an important role for more conventional disciplinary scholarship as well. But what do readers think of the call for interdisciplinarity at the Court? I have a few thoughts of my own on that score, but before offering them I want to hear what others think.

Pharmaceutical Industry Lobbying

Today's NY Times has a front page story describing how the pharmaceutical industry is scrambling to develop ties with the new Democratic majority in Congress. Their primary goal, it appears, is to prevent legislation that would amend the 2003 legislation that prohibits the government from negotiating prices for Medicare prescriptions. It's not surprising that the industry would want to make as much money as possible from the program, but what is surprising is the utter flimsiness of its claims that negotiated prices are not in the public interest.

The industry makes two main claims. First, the industry argues that the prescription drug plan is working. Okay, so what? Why would it work worse if the govt paid less for prescription drugs? Second, the industry argues that price negotiation would lead to artificial price controls, which would in turn lead to restrictions of drugs patients want. But as with any slippery slope argument, this one only works if there's some reason to think that the Congress that authorizes negotiations over price would not stop there.

Thus, the industry's principal strategy is not about persuading the public but rather just old-fashioned influence-peddling. Former Democratic staffers are in great demand as lobbyists for the pharmaceutical industry to their newly ascendant former bosses. If Dems are smart, they'll realize that along with the war, Republican corruption was a key to their midterm victory, and hold the line. That may be a big "if."

Thanksgiving Proclamations

Just a short posting today re Thanksgiving. In modern debates about church-state separation, those who favor a greater role for religion in public life sometimes invoke the practice of the nation's Founders, including the fact that early Presidents made manifestly religious proclamations of Thanksgiving. Here I'd note the following three facts:

1) Even George Washington, whose Proclamation was indeed expressly religious, was careful to make it non-denominational. Thus, those who say things like "the United States has always been a Christian" nation appear to be correct only in the sense that it has always had a majority Christian population. The remarkable secularism of the Constitution (in its day and ours) was not aberrational for the Founding generation.

2) The practice of religious proclamations was sufficiently controversial in the early days of the Republic that Thomas Jefferson, admittedly the most secular of the Founders, refused to issue any. Notably, Jefferson paid no substantial political price for his secularism.

3) The distance between modern separationists and the average view of the framers--what has been called "ceremonial deism"--is substantially less than the difference between the framers' views of other modern hot-button issues like race relations and sex roles.

Happy Thanksgiving.

Must Judges Be Lawyers?

Perhaps partly in response to a series of front-page articles in the New York Times earlier this year, New York State's Chief Judge Judith Kaye announced proposed changes to the state's "Justice Courts" that serve many rural and suburban communities. The series reported on underpaid and unqualified judges dispensing at best uneven approximations of justice. Principal among the changes would be increased training and monitoring of the judges, the latter to be facilitated by a new requirement of court transcripts. However, because the Chief Judge lacks the authority to require that these judges be fully trained lawyers, that change would have to come from the legislature, which has historically been reluctant to tinker with the Justice Courts.

The New York saga raises the more general question of whether judges should necessarily be lawyers. At the federal level, there is no such rule. By statute, the Solicitor General must be "learned in the law," but no similar requirement applies to federal judges or Supreme Court Justices. Of course, the widely followed historical custom has been for Presidents to nominate lawyers. Nonetheless, this practice has sometimes been criticized on the ground that, at least with respect to divisive constitutioanl issues like abortion, gay rights, church-state relations, and affirmative action, more legitimate decisions might be reached were the decisionmaking body to include people with a broader range of professional perspectives. Justice Scalia made a version of this point in his dissent in Romer v. Evans when he accused the majority of "reflecting the views and values of the lawyer class from which the Court's Members are drawn." He can be read to have said something similar in his concurrence in Cruzan, stating that the Justices were no better qualified to decide the constitutionality of Missouri's limits on the removal of a feeding tube from an unconscious patient than would be "nine people picked at random from the Kansas City telephone directory." But in both cases, Justice Scalia was actually making a quite different point: that because the lawyers have no special training or legitimate expertise in medicine or moral philosophy (or, he might add, theology), they ought not to be reading the Constitution to displace majoritarian decisions in these areas.

Justice Scalia has lost that battle, however. (He's also on both sides of it, as he fully endorses the Court's equally controversial use of the Equal Protection Clause and 5th Amendment Due Process Clause to displace majoritarian decisions regarding affirmative action, but let's put that inconsistency aside.) Given that the Supreme Court does decide morally divisive issues, should its membership include non-lawyers? The French Conseil Constitutionnel includes non-lawyers, as do some other constitutional courts around the world. This would not work very well in the U.S., however, given that our Supreme Court hears not only constitutional cases but also, indeed mostly, more technical cases of statutory construction, administrative law, and the like. Thus, the closest thing one sees to actual calls for non-lawyers on the Supreme Court are statements seeking diversity among lawyers. When President Bush announced his nomination of Harriet Myers, he said he had received a lot of interesting advice, including the suggestion of appointing someone who was not a lawyer. This was bad marketing, because it got translated as: "I couldn't quite take that advice, but I went halfway by nominating someone whose legal experience and skills make her relatively unqualified for the job." It recalled Senator Roman Hruska's ill-advised defense of President Nixon's nomination of Harold Carswell: "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?"

Was 9/11 a 'constitutional moment'?

Michael Dorf’s response to my last posting raises another interesting question about the phenomenon of what Bruce Ackerman famously identified as “constitutional moments.” Citing John Yoo and other’s advocation for greater presidential power in the wake of 9/11, Michael suggested the possibility that 9/11 could be seen as a ‘constitutional moment’ leading to a transformed constitutioanl regime in which presidential powers are expanded in the way that Yoo and these others suggest. (To my reading, Michael himself appears at best agnostic with regards to this). And this, I believe, points out to two other limitations in the utility of Ackerman’s particular explication of the phenomenon of ‘constitutional moments’.

In the main, Ackerman views the phenomenon of a constitutional moment through what is still a common law lawyer's eye. In other words, he identifies constitutional moments primarily through the sources of authority to which common-law lawyers pay the most attention – the courts and statutory legislation. But I would suggest that the common law exaggerates the role that these two kinds of authority play in constitutionalism. Consider, for example, the dramatic constitutional transformation that the US experience between 1890 and 1910. That period witnessed the emergence of the modern imperial presidency, the modern administrative state, the modern understanding of the constitutional role of courts, the modern vision of rule of law, the modern civil service, the modern political party, modern campaign financing, the emergence of elections to become the defining characteristic of ‘democracy’, the emergence of idea of social citizenship. It was a period in which popular deliberation about the constitution was significantly more robust and mobilized than that which accompanied either reconstruction or the New Deal. There was even significant fear that the American constitution would fail.

In sum, the period between 1890 and 1910 witnessed a level of constitutional change and deliberation that seems to dwarf those of the more traditionally acknowledged constitutional moments of the Reconstruction and the New Deal’s famous ‘stitch in time’. So why is it not recognized as a constitutional moment? The answer, I suspect, is because for the most part, the courts were not significant agents in this change, and the common law causes us to focus our attentions primarily on courts. (Although could someone please explain to me why ICC v. Illinois Central Railroad Company (215 U.S. 452 (1910)) never made it into our pantheon of landmark constitutional cases?)

But on the other hand, once we recognize that congressional legislation and constitutional caselaw are not the only signifiers of constitutional transformation, we bump into another problem. If we can’t identify a constitutional moment simply from the presence of a particular kind of common law authority, how can we? This is the second limitation in Ackerman’s vision: he presents his ‘moments’ as largely fait accompli. For the most part, he does not explain why these moments occurred, why and how they mattered as opposed to other possible moments. Why, exactly, made the Reconstruction and the New Deal so special as to be worthy of their own special category of constitutional legitimation?

It is because of this lacuna that we get the ‘9/11 as constitutional moment’ hypothesis. That hypothesis proceeds from a kind of post hoc egro propter hoc reasoning, that goes something like: “9/11 seems like a big thing, and it produced significant constitutional discourse; Bush’s expansion of presidential powers also seems like a big thing, and it seems causally related to 9/11; therefore the two together probably represent a constitutional moment.”

But in fact, when you look at the constitutional moments Ackerman identifies, I think it significant – determinative even – that both occurred within a larger framework of transformative change in American industrial and social organization. In the case of Reconstruction, that change is the elimination of slavery and the rise of a truly national product markets. In the case of the New Deal, that change is the dominant role that industrialized wage-earning had come to play in family income generation. And in the case of 1890-1910, that change come in the unprecedented economic and industrial readjustment that Alfred D., Chandler Jr., associates with the “managerial revolution.”

And this, I think provides a refutation to the ‘9/11 as constitutional moment’ thesis. As far as I can see, 9/11 does not represent some fundamental restructuring of American industrial system. It does not represent some fundamental change in the structure of American society. It is thus unlikely to be sufficient, in and of itself, to underpin a ‘constitutional moment’ as that term is generally used to mean. It is more like a Pearl Harbor than like a New Deal. Like 9/11, Pearl Harbor was as traumatic an event as this nation has ever experienced. Like 9/11, it resulted in massive collections of power in and even abuse by the hands of the executive (see especially the internment of Japanese Americans). But in the end, ‘it did not signify’. And neither, I would argue (or at least hope), will the similarly pro-executive constitutional deviations that have been introduced in the wake of American reaction to 9/11.

When Tragedy Plus Time Equals Tragedy

Okay, I know I promised that I was done with posting about OJ, but I can't resist just one more, this one on the decision by the News Corp (parent of Fox and HarperCollins) to cancel the tv special and book in which OJ would have told the world how he "would have" murdered his ex-wife and her friend. As Rupert Murdoch acknowledged in his announcement and apology, the project was "ill-considered." Although it certainly struck me and nearly everybody else to opine on the subject that way, we might still fruitfully ask why the initial decision to green-light this project was so preposterous.

According to an unnamed Fox executive quoted in a NY Times story on the canceled program and book, the company made a miscalculation that enough time had passed so that Simpson would no longer be a pariah. This reasoning jibes with a saying (variously attributed to many different people) that tragedy plus time equals comedy. So a comedy sketch involving Napoleon (responsible for countless deaths) or the eruption of Mount Vesuvius will not be deemed offensive, while a comedy sketch involving an ongoing tragedy (a genocide, say) will surely and rightly be deemed offensive. But this then raises the question of how much time needs to pass. The answer, I think, is that it depends. Certainly it helps if the victims and their surviving close relatives and friends have passed away, but this is hardly a necessary condition. The original version of The Producers, featuring the song "Springtime for Hitler in Germany," was released in 1968, when the Nazi Holocaust was still a relatively fresh memory. And while there were certainly many people who found the number offensive, many others understood that the point was that it was offensive; that's what made it funny.

But I'm willing to bet that if OJ tries again with his book in another 15 years, he'll be met with the same reaction he got this time around. The relevant comparison would be a version of The Producers starring not Mel Brooks but, say, an actual Nazi. It's hard to see that going over very well. By contrast, even during the Simpson criminal trial itself, late-night comedians thought the case was fair game. But it's hard to imagine that Simpson himself will ever be able to make jokes about how he got away with murder.

McCain's not-so-straight talk on gay rights & abortion

Appearing yesterday on ABC’s This Week with George Stephanopoulos, Senator John McCain was asked about his positions on gay rights and abortion (ostensibly so that he could distinguish his views from those of Rudy Giuliani). McCain’s answers were not exactly “straight talk,” (unless we understand “straight” as simply the opposite of “gay.”)

On gay rights, McCain said he was against same-sex marriage, but that he was also against “discrimination.” That’s a dodge, but the same one used by a great many politicians, Republican and Democratic alike. However, Stephanopoulos, to his credit, asked a couple of follow-ups, including why McCain voted for the (failed) Arizona ballot initiative, which would have banned not only same-sex marriage but also civil unions. McCain seemed to say in response that civil unions are unnecessary because same-sex partners can create powers of attorney and the like to simulate the benefits of marriage. (I can’t be sure that this is what he meant to say because, speaking live, McCain was somewhat unclear.) That’s just false. Some of the benefits of marriage or civil union—such as entitlement to medical benefits for partners—cannot be obtained by such unilateral action. Moreover, even if all such benefits could be obtained by ordinary contract, making same-sex couples go through the enormous hassle and expense to get benefits that opposite-sex couples get automatically is itself an obvious form of discrimination. Asked another follow-up, McCain said that while he didn’t think it necessary to amend Title VII specifically to give gays and lesbians protection against workplace discrimination, he nonetheless opposed such discrimination. This is a version of the right’s attempt to cast anti-discrimination law as conferring “special rights,” and it’s either ill-informed or disingenuous. The only kind of protection that Title VII confers is “special” protection against discrimination on the basis of particular categories, such as “race” and “sex.” Unfortunately, in his haste to get to other subjects, Stephanopoulos did not ask the obvious next follow-up: Given the logic of McCain’s claim, shouldn’t the law deny protection against those “specific” forms of discrimination as well?

McCain’s answers on abortion were also contradictory. After declaring that he favored a federal constitutional amendment to prohibit abortion except in a few extreme cases (such as threats to the survival of the mother), McCain went on to say that he hoped the Supreme Court would overturn Roe v. Wade and return the issue to the states, where, McCain declared, it belongs. Huh? If the issue belongs at the state level, why does McCain support a constitutional amendment that would take it away from the states even more effectively than Roe did (albeit in the opposite direction)?

On both of these social issues, it’s not clear which is the more disturbing prospect: That McCain doesn’t realize the self-contradictory nature of his positions or that he does.

Is that what I meant?

A couple of weeks ago, in DirecTV v. Leto, the Third Circuit found itself in the curious position of reviewing--and rejecting--a district court’s interpretation of its own order. The order and its misinterpretation came in the same litigation and, by all appearances, were accomplished by the same district judge.

Lower courts’ interpretations of their own orders are appealed more often than one might expect. Sometimes it happens in circumstances, such as a contempt proceeding, in which a party has arguably violated the order in question. DirecTV is notable in that the district judge was held to have missed the whole effect of his own order: He thought he’d dismissed claims as to certain defendants, when actually he’d merely severed them. (In the former case, the action could not have been re-filed due to the statute of limitations.)

The puzzling question in these situations is what standard of review the appellate court should apply. The usual rule (and the rule of the Third Circuit) is the one that seems right intuitively: the district court is entitled to a great deal of deference (at least to the extent that the interpretation doesn’t depend on underlying legal questions subject to de novo review). Upon further consideration, though, it’s not so clear that that’s correct. Interpretations of texts having the force of law are usually reviewed de novo. At the least, those who oppose relying on legislators’ opinions of statutes they drafted and/or supported might be expected to feel the same way about court orders. Judge Luttig of the Fourth Circuit (now General Counsel at Boeing) seemed to take this approach in his concurring opinion in United States v. Rhynes, 218 F.3d 310 (4th Cir. 2000) (en banc). “Obedience to the language of law is . . . the very essence of law,” he declared, arguing against the district court’s reading of its own order. Judge Wilkinson, in contrast, though a soul-mate of Judge Luttig as to statutory interpretation, disagreed as to court orders. Dissenting in the same case, he pointed out that, while it’s hard to discern what 535 legislators meant to do, it’s not so hard to inquire of a district judge. There’s no arguing with that practical point, and quick requests for clarification of unclear orders presumably resolve the point most of the time. (A new, clearer order would typically supersede the prior, ambiguous one.) Where there is no such resolution, though, my inclination is that what the author meant to do, even if it can be discerned, is less relevant to interpreting court orders than to interpreting statutes. Legislators are elected to advance particular views of justice and good policy. Their interpretations of statutes at least arguably reflect those views and so carry some democratic weight. As for the personal views of federal district judges, they have no special status, or at least none not also held by the views of the appellate judges reviewing their interpretations.

Can Congress prevent the 49ers from using "San Francisco" if they move?

According to news reports, if the owners of the San Francisco 49ers go through with their plan to move the team to Santa Clara, Senator Feinstein (perhaps abetted by Speaker Pelosi) will introduce legislation preventing them from using "San Francisco" as part of their name. Can Congress do that? The short answer is yes, as San Francisco itself found out when it was on the losing end of a case involving Congressional conferral of exclusive rights to use the word "Olympics." In that case (which you can find here), a San Francisco organization was prevented from calling its sports festival the "Gay Olympics" by a federal statute. The Court said that Congress was within its power to confer exclusive use of "Olympics" on the United States Olympic Committee, because "Congress reasonably could conclude that the commercial and promotional value of the word "Olympic" was the product of the USOC's 'own talents and energy, the end result of much time, effort, and expense.'"

So, can the same be said of the value of the word "San Francisco?" Probably. While the value of a city name is not wholly or even mostly the product of official efforts, they do generally come from the efforts of people who live and/or work in the city. That's probably enough to satisfy any claim that Congress lacks power to enact such legislation.

Of course, it's another question whether Congress should do such a thing. My bet is that most 49ers fans would prefer that the word "San Francisco" remain in the team name, so long as they play in the Bay Area, broadly defined. If so, the point of the legislation would be to deter a move, not to prevent the name use after a move is a fait accompli. But there's nothing constitutionally wrong with deterrent legislation.

Arsenic Redux

Cost benefit analysis (CBA) in environmental regulation is certain to shift in tone, if not necessarily in direction, if the republicans also lose control of the White House in 2008. (Incidentally, I heard the scrutiny given John Graham’s successor at OMB, Mercatus Center alumna Susan Dudley, was quite lame in her confirmation hearing last week.) Perhaps the biggest springboard in recent debates about the place of CBA was the regulation of arsenic in drinking water under the Safe Drinking Water Act. Many decried the prohibitive cost of achieving the set contaminant levels, arguing that too many communities wouldn’t be able to afford the filtration. Others returned to a now familiar theme: the “cost” figures churned out are always, on reflection, of literally mythic proportions. The parties that will face the most immediate costs of compliance have every incentive to, and occasionally do, inflate the numbers, rigging what is supposed to be an objective (or at least methodologically sound) means of evaluating regulation for health and safety purposes.

Well, it turns out that nanotechnology for removing arsenic from water was recently discovered, drastically lowering the cost of removing arsenic from drinking water—at least in theory. See http://www.nytimes.com/2006/11/10/science/10rust.html?ref=science. This raised, for me, the torpor of most public debate about regulatory policy. I distinctly recall, well, no one imagining in 2002 that technological advances would transform the relevant trade-offs in relatively short order. It got me thinking: to what degree does anyone in public life today ever proceed on the assumption that the process of centralized standard setting and the gridlock it stirs itself can provoke enough actors into (private) action that someone is bound eventually to "tunnel under" whatever barriers frame the gridlock?

Why Lord Bolingbroke is more interesting than OJ.

If I ever get to nominate the father of Anglo American constitutionalism, I will nominate Lord Bolingbroke (Henry St John, 1st Viscount Bolingbroke). Bolingbroke was the person who invented that particular discourse of constitutionalist opposition which really, more than anything else I believe, defines and identifies the presence Anglo-American constitutionalism. That is the discourse that couches arguments for constitutional reform and revision in historicist terms, creating the discursive illusion of moving backward when in fact moving forward.

Resorts to this technique are so ubiquitous in American constitutional law that I’m hoping that I do not have to belabor the point. But it is also definingly present in English constitutional history, be it that of the conservative constitutionalism of Bolingbroke during the Walpole era; the radical constitutionalism of the late 18th century; or the counter-reformation constitutionalism of Dicey. Interestingly, the two most prominent English constitutional theorists who refused to endorse this historicist approach, Bentham and Paine, are today mere footnotes in English present-day constitutional law (but see Dicey’s Law and Opinion in England on Bentham).

(We might also note that the same rhetorical technique is frequently found outside the Anglo American system as well: i.e., people seeking to reproach or change an existing constitutional system by portraying that change of reproach as a call to return to some historically defined constitutional purity. It is notable, for example, that despite the civilian distaste for precedent, the Conseil d'état uses a precedent-based form of legal argument to keep the government in check. Perhaps a better example of the universality of this kind of trope can be found in the work of Confucius, who frequently invoked the principled practices of a more esteemed time to reprimand contemporary kings.)

But there is one interesting different between American and English uses of this trope, at least historically. Both American constitutional history and English constitutional history can be seen as being ‘two-tiered’, to use Ackerman’s famous phrase. And at a superficial glance, one of the things that seems characteristic of American higher-tier constitution making, at least post 1787, is the relative absence of this kind of trope. In England, at least up to the end of the 19th century, it was exactly the opposite – constitutional moments were characterized by the distinctive presence of this trope, compared to times of more normal constitutional lawmaking. Why this is, I don’t know. But I suspect that it has to do with the written quality of the American constitution. Bolingbrokian™ appeals to historicist authority were quite common in America during the period of constitutional agitation leading up to the Revolutionary War.

The upshot? Maybe it’s that a constitutional moment is not simply characterized by a mobilized discourse, but by distinctive forms of mobilized discourse, whose term of reference and authority are different from those that normally operate in constitutional politics. It may be in the emergence of this different discourse, and not some symbolic actions of a constitutional elite (as read Ackerman to suggest), that the signaling of the onset of a constitutional moment takes place.

My last posting on the OJ Simpson book and interview (I hope)

Wondering why O.J. Simpson now lives in Florida? It turns out that Florida has the nation's most generous "homestead" protection. That means that Simpson's home cannot be seized and auctioned to pay (part of) the judgment he still owes to the families of his victims. Florida also restricts the ability of judgment creditors to garnish wages. When I learned of this, my first thought was that this seems inconsistent with the obligation of states to give full faith and credit to the judgments of their sister states, but a moment's reflection showed that that's not quite right: Florida's rules governing homestead protection and wage garnishing do not deny any of the legal effect of an out-of-state judgment. Rather, they are substantive protections for debtors against creditors, and as long as Florida treats out-of-state creditors no worse than in-state creditors (which it apparently does), then this is a permissible choice-of-law rule that does not directly implicate full faith and credit.

Nonetheless, it certainly FEELS like there's something fishy here. Defendant loses a lawsuit and is ordered to pay millions to the victorious. But unless the plaintiff managed to get a pre-judgment lien on property owned by the defendant in a state that allows such a procedure, defendant will be able to move to Florida and avoid having to pay up. At some point--if, say, Florida or some other state forbade the forced sale or seizure of ANY assets, including bank deposits, personal property, etc.--this would look like an effort to circumvent full faith and credit, though perhaps the protection for creditors against that sort of extreme debtor protection is the in-state political process.

Anyway, thanks to OJ Simpson, whose tasteless return to the public eye provides this opportunity to ponder our federalism.

Texas Court of Criminal Appeal Ruling in Vienna Convention Case

Yesterday, the Court of Criminal Appeals of Texas rejected the claim of Jose Ernesto Medellin that a Presidential memo to the U.S. Attorney General entitled him to habeas relief because of violations of his rights under the Vienna Convention on Consular Relations. (Read the court's decision here.) The President's memo invoked his foreign affairs power and the Supremacy Clause to assert authority to waive procedural default rules in state courts, and the U.S. government argued on Medellin's behalf in the Court of Criminal Appeals. In particular, the memo asserted that the President had the authority to require states to comply with the International Court of Justice's ruling in the Avena case. There, the ICJ held that state rules of procedural default could not be invoked to defeat Vienna Convention rights to consular consultation. The ICJ's ruling made considerable sense because a central feature of the Vienna Convention is that it confers a right of arrestees to be notified of their right to consular consultation; a suspect who has not been notified of his rights to consultation can hardly be said to knowingly waive those rights when he doesn't then seek consultation in a timely manner. (For further discussion of this point, see my FindLaw column on the same issue in the earlier ICJ litigation in the LaGrand case.)

Nonetheless, in June of this year, in the Sanchez-Llamas case, the Supreme Court ruled that notwithstanding Avena, states could apply procedural bars to Vienna Convention claims. Neither the Vienna Convention nor its optional protocol (from which the U.S. has withdrawn prospectively) made ICJ rulings directly operative in the U.S., the Justices said. The question for the Texas Court of Criminal Appeal was whether the Presidential memo changed that. Its answer was no: The President is without constitutional authority to convert an international obligation that the Supreme Court says is not binding on U.S. courts into one that is.

There are countless interesting aspects to this case but I'll just mention one here. It may be less of a defeat for internationalists than it at first appears. For if the President cannot overenforce an international obligation, then perhaps neither can he underenforce one. If that's right, then we might see yesterday's ruling invoked for the proposition that other international obligations that the Bush Administration has tried to avoid are nonetheless binding on federal and state courts, at least unless and until superseded by Congress.

Oh, I see, OJ's promoting his new book

Amazingly, the book is called O.J. Simpson: If I Did It, Here's How It Happened. You can read about it here. The article states that it's not known how much of the proceeds of the book sales will go to the victims' survivors, whom Simpson still owes many millions under the civil suit verdict. This, I suppose, puts those survivors in a rather awkward position, not unlike that of the states that stood (and still stand) to benefit from cigarette sales under the terms of the tobacco litigation settlement: financially dependent on activity that they must regard as deeply offensive. Litigation, I guess, makes strange bedfellows.

Meanwhile, I'm looking forward to the following titles:

Mahmoud Ahmadinejad: If I Have Nuclear Weapons, Here's How I Made Them

Dick Cheney: If I Lied in the Leadup to the Iraq War, Here's How

and if O.J. inspires a nostalgia craze for the mid-90s, be sure to look for:

Bill Clinton: If I Did Have Sex With that Woman, Here's What the Meaning of "is" is.

OJ Simpson tv Interview

I just came across an A.P. story with the following first sentence:

Fox plans to broadcast an interview with O.J. Simpson in which the former football star discusses "how he would have committed" the slayings of his ex-wife and her friend, for which he was acquitted in a widely-watched trial, the network said.

What the #$%^*~? Did he recently fire his publicist? Did Borat conduct the interview under the pretext that it would only be shown in Kazakhstan? I suppose Simpson could have said that he would have killed them using a method so different from the actual stabbings -- tossed them into a volcano, say, or ripped out their hearts and eaten them -- as to somehow persuade viewers that therefore Simpson wasn't the actual killer. Or perhaps Simpson figures he's already on the hook from the civil verdict and protected against further criminal prosecution by the Double Jeopardy clause, so what the heck. But still, why say such a thing? This does seem to take Mark Twain's adage that there's no such thing as bad publicity a bit far.

The Supreme Court's Make-Believe World

I just read the Supreme Court’s decision in Ayers, and I have to say that Justice Kennedy’s majority opinion is one of the most bizarre exercises in after-the-fact speculation I have read.

As Mike notes below, the defendant argued that the jury instructions precluded jurors from considering mitigating evidence that he would lead a constructive life if sentenced to prison rather than executed. Taking the instructions at face value, the defendant seems right. Factor k (the instruction at issue) says jurors may consider “any other circumstance which extenuates the gravity of the crime,” but says nothing about mitigating evidence unrelated to the crime, such as the possibility of future good conduct. In two previous cases, however, the Court rejected the argument that factor k necessarily precludes consideration of mitigating evidence unrelated to the crime. Instead, the Court ruled, factor k is invalid only if “there is a reasonable likelihood” that the jury understood the instructions in that way.

The question for the Court in Ayers, therefore, was how the jury had understood factor k. In the real world, someone trying to answer this question would ask the jurors themselves. But in the make-believe world of the Supreme Court, Kennedy answers the question by examining the statements of the lawyers and trial judge in the case. For instance, Kennedy notes that although the prosecutor told jurors he did not think the defendant’s religious experience fit within factor k, he also said it was a “proper subject of consideration.” Based on other statements by the prosecutor, Kennedy concludes that “the jury would have realized that, when the prosecutor suggested [defendant’s] religious experience did not fit within factor (k), he was discussing the persuasiveness of the evidence, not the jury’s ability to consider it.” Maybe. Or maybe the jurors, at the end of a long trial, did not follow the nuances of the prosecutor’s argument as closely as Justice Kennedy. Kennedy also notes that “the judge told the jury to consider ‘all of the evidence’ and ‘all of the evidence’ included [defendant’s] forward-looking mitigation case.” True. But the judge qualified this command with the words “except as you may be hereafter instructed.” Kennedy says the jury would not have interpreted factor k as a limitation on what evidence it could consider. But how does he know that? Jurors are lucky if they understand half of what the judge says. Expecting them to follow the twists and turns of a judge’s instructions with the precision of an attorney reading a cold record is ridiculous.

My criticism here is not so much with Kennedy’s analysis. Given the Court’s precedents, he had no choice but to speculate about the jury’s understanding of factor k. But the Court never should have made the constitutionality of that instruction turn on such a speculative inquiry. The question should be “what does the jury instruction say?” not “how would the jury have understood it?” If the instruction does not make clear that the jury can consider all mitigating evidence, whether related to the crime or not, it should be invalid. Fortunately, California now appears to get this point; it has revised factor k to make clear that all mitigating evidence can be considered. Perhaps the Court will someday get the point, too.

Hospital-induced Infections

An op/ed appeared in today's New York Times raising the important issue of hospital-induced infections, “which account for an estimated 100,000 deaths every year.” The author, Betsy McCaughey, describes the spread of the deadly Staph infections: “Doctors and other caregivers who lean over an [infected] patient often pick up the germ on their hands, gloves or lab coats and carry it along to their next patient.” McCaughey has apparently given up, however, on the possibility of getting caregivers to wash their hands and change their gowns between patients. Indeed, she notes that “[e]arlier efforts to stop these infections by installing many more dispensers of hand cleanser and conducting a year-long educational campaign on hand hygiene had no effect.” Her current proposal is to screen all patients for the presence of the infection.

I have addressed this issue in two columns, Unclean Hands: How Patients Can Prevent Blatant Medical Malpractice and Hospital-Induced Infections: A Serious Crime Against Our Nation's Patients. In both, I have proposed that such infections continue to spread because many caregivers do not want to – and accordingly don’t – wash or disinfect their hands. The simplest solution is therefore to compel them to use the hand cleansers. Doctors and nurses often prefer to skip the hand-washing, knowing – as they do – that it is virtually impossible to trace a particular infection to a specific individual. Without accountability, in other words, there is no compliance.

But they can and must be held accountable. How? Here’s one possibility: Hospitals can require that before every medical interaction, every patient receive a form that explains to the patient that over 100,000 people a year die in hospitals because of the providers’ failure to observe basic hygiene around patients. The form should accordingly instruct the patient to pay attention to whether his provider washes her hands before touching him. Then, after the patient sees his doctor or nurse, he should be given the same form and asked to respond anonymously to the following questions: 1. Did each of your providers wash or sanitize her hands before touching you? 2. If not, please name or describe by appearance the providers who did not. 3. Did you say anything to your provider at the time about the failure to wash? 4. If so, was the provider receptive to your criticism? Doctors and nurses receiving more than one or two complaints on this score could be warned and ultimately observed by an internal health inspector. A failed inspection could result in suspension and ultimately termination. If the failure to use proper hygiene were treated as the malpractice that it is, then the inexcusably high mortality rates would likely drop.

Is a Religious Conversion Mitigating When it Doesn't Prevent Murder?

Yesterday's Supreme Court decision in Ayers v. Belmontes is arguably another example of the point I made a few days ago about the handicaps our system of concrete review imposes. The case presented the question whether California's catchall factor in capital sentencing permitted the jury to give full mitigating force to the defendant's proffered evidence that his religious awakening would lead him, if spared, to spend his life in prison serving others. Earlier cases had upheld California's provision (k) in other contexts, and so did this one, even though factor (k)'s specific language seems to focus only on the circumstances of the crime, rather than the perpetrator's character apart from the crime. The factor invites jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” As Justice Stevens (for himself and Justices Souter, Ginsburg, and Breyer) argued in dissent, in light of the lawyers' arguments and the law at the time of the sentencing hearing, the jury could have thought that this instruction made the evidence concerning Belmontes' potential for good deeds in prison irrelevant.

Maybe that's right; maybe it's wrong. But it strikes me that this is an especially odd case in which to decide the question, given that the defendant's theory of mitigation is bizarre on its face. He claimed -- and he had supporting testimony from ministers -- that when he had previously been incarcerated as a youth, he had undergone a religious awakening, and done good works. Based on this experience and his sincere religious beliefs, he argued, he should be spared for the good he would do by living out his days in prison as a Christian. EXCEPT THAT AFTER HIS FIRST RELIGIOUS AWAKENING HE KILLED A 19-YEAR-OLD WOMAN BY BLUDGEONING HER 15 TO 20 TIMES WITH A STEEL DUMBBELL. It is simply not plausible that a jury would think that his religious convictions were insufficient to prevent him from committing murder, yet productive of enough good to count for anything in mitigation of his sentence.

Consequently, the majority is right when it says that factor (k) gave the jury an adequate opportunity to consider the mitigating force of Belmontes' evidence, because that evidence cannot have had any serious mitigating force at all. Unfortunately, however, the case will stand as a precedent in California in cases in which the evidence ought to have real mitigating force, such as circumstances in which the evidence of repentance occurs AFTER the crime.

Borat Sued By University of South Carolina Frat Members

The frat kids in the van in the Borat movie have sued Sacha Baron Cohen (whose name they misspell as "Sasha" in the first line of the complaint) and the production companies involved in the move, seeking damages and an injunction. You can find the complaint here.

According to the complaint's allegations, the producers got the plaintiffs drunk first, had them sign a release based on the assumption that they would not be identified and that the film would not be shown in the United States, and then piled them into the van, where the events in the film occurred. Among other things, the complaint states that the film falsely depicts them as insensitive to minorities. Interestingly, it does not say that their apparent insensitivity to women was a false depiction.

Finally, of interest only to civil procedure nerds like myself, the suit is brought in state court in California, evidently to make it unremovable to federal court. (Although there appears to be diversity of citizenship, most of the defendants are based in California, and thus can't remove.)

Borat and Human Subjects Research

Warning to Readers: If you haven't see the Borat film, and intend to, you may not wish to read past the next paragraph, as I discuss some scenes from the film.

Federal law requires that federally-funded research at universities and other institutions be approved by an "Institutional Review Board" (IRB) if it involves human subjects. Many universities (including Columbia, where I teach), require approval even for non-federally-funded research, and even "exempt" research posing minimal or no risk to human subjects requires a specific, advance, exemption. Thus, two JSD students whose work I supervise, had to jump through numerous hoops before getting the go-ahead to conduct their research. What was this research? Were they repeating the Milgram experiment? Were they conducting clinical trials of a new drug? No. They are asking questions of government lawyers and judges about their experiences using alternative dispute resolution. As my colleague Philip Hamburger notes, if this scheme weren't attached to federal funding, it would be an unconstitutional prior restraint. (Indeed, Philip contends IRBs are unconstitutional even for federally funded research and even for medical research; he would rely instead on informed consent laws.)

Of course, nothing like the IRB process applies to independent researchers not receiving federal grants, or to comedians. This got me thinking: What if Sacha Baron Cohen WERE affiliated with a university? It's not so implausible. His cousin is a professor of developmental psychopathology at Cambridge, and Sacha himself is no dope, having attended Cambridge. So suppose that like other artists (Spike Lee taught at Harvard; Anna Deveare Smith at NYU), Baron Cohen had landed himself a gig at a research university, and from there launched his investigations as Borat, Ali G and Bruno. Could he possibly get IRB approval for ostensibly attending a dinner party as Borat, excusing himself, and then returning to the table with a bag of his own feces and asking the hostess where to deposit it? Or more generally for exposing the anti-Semitism, homophobia and sexism of his interviewees by posing as a sympathetic nit-wit? The answer, amazingly enough, is yes, because the point of Baron Cohen's interviews is not to produce "generalizable knowledge," a prerequisite for the application of the IRB approval process under the applicable federal regulations. The point, like the directions provided by MapQuest, is simply amusement.

And therein lies the utter silliness of the IRB regime. So long as we don't actually learn anything from Borat et al, there's no protection for the sensibilities of the subjects of "researchers" like Baron Cohen. But if KNOWLEDGE will result, well then the federal government and countless local bureaucracies must be on guard. Whether this renders the IRB rules unconstitutional I'm not sure, but I am at least persuaded by Hamburger that the regulatory regime is bizarre.

The DeFunding Option

Interviewed on NPR a couple of days ago, Congressman Jack Murtha stated that Democrats would not withhold funding as a means of pressuring the White House to redeploy U.S. troops out of Iraq. The troops should not be put at (further) risk, he said, as part of a political struggle. Are Murtha and other Democrats too hastily rejecting this option? Can defunding be used to pressure the President without jeopardizing the troops? Maybe.

Congress clearly has the power to attach conditions on funding. Thus, it could pass funding legislation that says something like this: "None of these dollars shall be used for any purpose other than the expeditious withdrawal of U.S. forces from Iraq." But it would face two difficulties: (1) How to enforce such a condition? Presumably the courts would try to avoid adjudicating an inter-branch conflict between congressional power of the purse and the President's role as Commander in Chief. Congress might create an office of auditor within the military, but this just shifts the enforcement problem. Suppose the President now resists the auditor's authority. In any event, these ideas are probably beside the point because of difficulty number (2) Congress could only get such a measure enacted with 2/3 majorities in each house, because the President would presumably veto the bill. That won't happen.

Nonetheless, a bare majority in Congress does still have power here, even if it approves some funding for the war without strings attached: Namely, Congress can refuse to fund other military and/or civilian programs unless the President agrees to its terms. It could, in other words, dare the President to shut down the government. The last time that happened, President Clinton bested Speaker Gingrich in the court of public opinion, as most people blamed Congress rather than the President for the shutdown. But it hardly follows that President Bush would best Speaker Pelosi in a new game of chicken. It's all in the spin, and Democrats could plausibly claim that they have a mandate for redeployment from the election so that Bush, not Pelosi, could be portrayed as the intransigent one. I suppose the best one can hope for is that all of this is unnecessary, that with Rumsfeld's resignation and James Baker's committee likely to recommend some form of redeployment, a confrontation can be avoided.

Undoing the Damage

Now that the Democrats have taken back both houses of Congress, everyone has an opinion about what they should do (and how soon). Most discussion has involved whether the Democrats should be "confrontational"--impeach Bush for any of his obvious crimes, or at least investigate malfeasance in his administration--or look for issues on which some bipartisan consensus can be reached. Even if the Democrats wanted to be aggressive about undoing the damage of the last twelve years, though, what would that include? It is easy to forget just how many bad laws have been passed and how many bad decisions have been made in that time.

Some of the worst actions of the last twelve years happened under Clinton. AEDPA (which severely damaged the rights of prisoners) and IIRIRA (a gratuitous bit of immigrant bashing) sailed through as Clinton tried to guarantee his re-election in 1996. The welfare reform bill, though puzzlingly thought of even by some liberals as a success, was another triangulation special. During Bush's time in office, almost every change to the tax laws was a mistake, while the Patriot Act and its reauthorization should both be repealed. More recently, the MCA (Military Commissions Act) was a low point in American history that managed to go unnoticed while we made tasteless jokes about Mark Foley's text messages.

Some Republican-inspired mistakes, of course, are literally irreversible but at least partially reparable, such as invading Iraq and neglecting New Orleans. Others cannot be undone without creating horrible precedents going forward, such as getting rid of the judges that Bush put on the federal bench. Besides Alito and Roberts, remember the "compromise" that put several of Bush's most extreme nominees on the appellate bench (Janice Rogers Brown, William Pryor, Thomas Griffith, etc.)? We should hope for progress and insist on an end to the damage, but there's no getting around just how much harm has been done.

More Thoughts on Partial-Birth Abortion Case

I wrote a column about this case a few weeks ago, which appears at this link. In the column, I compare the distinction the statute implicitly draws (between killing a second-trimester fetus when it is seconds from being born alive, on the one hand, and actually delivering the second-trimester fetus alive, on the other) as comparable to the distinction between physician-assisted suicide and removal of life support. Though the distinction – in both contexts – strikes me as weak, it evidently appeals to the Court, which may bode well for the continuing right to terminate a pregnancy by inducing labor prior to viability, if by no other method.

What I do not say in the column but nonetheless believe is that the distinction the statute explicitly draws, between “partial birth abortion” (when the abortion provider kills the fetus after most of it has exited the womb) and other second-trimester abortions (in which the provider kills the fetus while it is still inside the womb) is utterly arbitrary. In both kinds of abortion, the provider actively kills the fetus, and the only difference is where inside the woman the fetus happens to be at the time of death. The objective of the legislation is on its face to force the Justices and the public to confront the physical reality of later-term abortions, with which most people are understandably uncomfortable. The tragedy of it all is that the various assaults on abortion rights, including the passage of parental notification laws, which I discuss in an older column, pro-life protesters’ harassment of doctors and patients, resistance to morning-after pills and RU486, and opposition to sex education that extends beyond calls for abstinence have led to more of the late-term abortions that supposedly horrify everyone (including the devout proponents of the legislation). It seems, then, that the more successful the religious right is at posing obstacles to contraception and abortion, the greater the number of late-term abortions that occur. Of course, a person who holds the view that a one-celled pre-embryo is no different from a full-term fetus might not find this development particularly disturbing.

Briefs in the race-based student assignment cases

I just happened to read the petitioner's brief in Meredith v. Jefferson County Bd. of Ed., one of two cases to be argued next month presenting the question whether public schools may voluntarily use race in student assignments as a means of achieving racial integration. The brief, filed on behalf of the mother of a five-year old who was denied a request to transfer from one elementary school to another, is - - how shall I put this politely? - - utterly incompetent. I do not exaggerate. Here is the core of the argument from the brief (which itself is barely 9 pages in total):

"The race-conscious, hard-core, mechanical quota Student Assignent Plan of the JCPS seeks to fix a number of desirable minority students to insulate one group of applicants from another. For the Student Assignent Plan of the JCPS to be defined as anything other than a hard-core,
mechanized quota, there must have been a finding by the trial court that Joshua Ryan McDonald was denied entrance into his neighborhood school for a reason other than he was White. That simply is not the case. Race was the make or break test!"

Luckily for the petitioner, the Solicitor General has filed a supporting amicus brief that presents the arguments professionally, and will split the oral argument with petitioner's lawyer. But that lawyer, who for all I know is highly skilled before a jury, simply has no business arguing before the Supreme Court in a case of great national import. That we permit such advocacy seems to me part of the price we pay for the continued fiction that the Supreme Court resolves concrete cases or controversies rather than abstract legal questions, as in European-style constitutional courts that openly permit such abstract review.