One Nation

The Supreme Court's Establishment Clause cases are sometimes berated as exercises in unprincipled line-drawing based on the personal preferences of the justices, and of one recently retired justice in particular. There's something to this view. Some of the cases, however, leave the reader in a bewilderment too deep to be explained by mere lack of principle. In these cases, one really gets the feeling that the justices haven't grasped the nature of the thing in dispute--that they literally don't know what they're arguing about.

An article in the new issue of the Journal of the American Academy of Religion provides a religious-studies framework that could be a little help in some of these cases, if the Court were open to it. The article, The Pledge of Allegiance and the Meanings and Limits of Civil Religion, by Grace Y. Kao and Jerome E. Copulsky, analyzes the Pledge as a ritual of the nation's "civil religion," in the sense in which Robert Bellah used the term in his 1967 essay "Civil Religion in America." More particularly, Kao and Copulsky use "civil religion" to refer "to a symbolic system that binds members of a political community to one another through shared historical narratives, myths, rituals, and some notion of transcendence (e.g. the people, the nation, its overarching values and/or God.)" Civil religion, they say, functions to legitimate the social order, mobilize its members, and endorse institutions and authorities. They then consider the Pledge, and in particular the issue of the phrase "under God," in light of four modes of civil religion: preservationist, pluralist, priestly, and prophetic. By making sense of the Pledge as a whole they make make it possible to consider the controversial two words in a meaningful context.

The Court has never adopted the idea of civil religion, and perhaps it would be impractical for it to do so as such, if for no other reason than that the word "religion" makes state endorsement of it sound potentially unconstitutional. (Kao and Copulsky appear to assume implicitly that state sponsorship of civil religion in some forms, at least, is constitutional.) But unless and until the Court adopts Justice Thomas's view of the Establishment Clause (that it resists incorporation), the jurisprudence would be improved by a better effort to grapple with the meaning and purpose of the state-sponsored ceremonies and displays in which Establishment Clause controversies often arise. Kao & Copulsky's paper would be a good place to start.

Big Tax Lies

[Posted by Neil H. Buchanan]

Last week, in a guest column on FindLaw, I discussed an argument that the Wall Street Journal's editorial page has been pushing recently. (The column to which I was directly referring was published under the byline of former Bush press secretary Ari Fleischer; but as a friend of mine says: "I always imagine (based on nothing at all) that they just have some guy locked in a little room churning this stuff out and they stick the names of different famous people on different versions of the argument on different days.") The argument boils down to this: We know that the U.S. tax system is excessively redistributive because the richest 10%, say, of all taxpayers pays some much larger percent of all taxes (by Fleischer's ghost writer's account, 71% in 2004 -- conveniently ignoring everything but federal personal income taxes). As with all such statistical distortions, the comparison has a wow factor, and it's not just wrong but based on a completely dishonest standard.

In particular, the only way to satisfy the implied measure of fairness -- a tax system that would NOT be excessively redistributive -- is if 10% of taxpayers pay 10% of taxes, if 40% of taxpayers pay 40% of taxes, etc. This, though, is only possible if every taxpayer pays the same number of dollars as every other taxpayer. Not the same percentage of their income in taxes, but the same number of dollars. If the government is going to collect $3 trillion in taxes from 300 million people, then each person's annual tax bill must be $10,000. No consideration of income or employment status. No retirees or disabled citizens excluded. No child left untaxed. (The last time a major government proposed even a modified version of such a system was in 1983 in the U.K. under Margaret Thatcher. Thatcher's idea to impose what the Brits call a "poll tax" was met with riots in the streets.) Even highly regressive tax systems do not satisfy the implied standard, so long as any person pays less than any other person in dollars paid in tax. Thus, conciliatory comments to the effect that "[w]e have an obligation to help the neediest among us and the wealthy should pay more" are meaningless.

This argument is merely the latest in a long line of dishonesties from the Journal's editorialists and an influential band of anti-tax ideologues. (The Wall Street Journal itself, for those who don't follow these things, is an excellent newspaper. The editorial page is an entirely separate operation, aggressively pushing a very particular brand of pro-Bush conservatism.) A few years ago, the Journal's editors opined that the people who are exempt from federal taxes because of their low incomes are "lucky duckies" because they live in the happy world that the Journal's editors would like to live in: a blissful land free of taxes -- never mind the inability to pay for necessities, and never mind that the duckies continue to pay sales taxes, excise taxes, payroll taxes, etc., and that they die much younger than richer people do. I guess it's a sign of progress that the argument is now being repackaged into something that is at least initially not laughable.

There are honest disagreements between conservatives and liberals about the appropriate size of government, about solving social problems with government programs or with private initiatives (or some combination), about how to deal with government waste (and how prevalent or unavoidable waste is in the first place), about the social and economic incentive effects of taxing and spending, etc. That's what tax policy scholars spend their lives thinking about. No policy analyst will ever be happy with the level of public discourse about the subject of their expertise, of course, but it is particularly disheartening to see major opinion leaders (and the politicians who echo them) defining fairness in taxation in so fundamentally dishonest a fashion.

The Thin Line Between the 6th Amendment and Blackmail

The legal case against Deborah Jeane Palfrey, who ran an accused prostitution ring under the name of "Pamela Martin and Associates," raises a nice question about the dual use of evidence. Ms. Palfrey says that her 130 escorts provided only legal services --- such as massages and erotic dances --- for her 15,000 customers. She plans to prove the point by calling her customers as witnesses to say that they did not pay for sex. ("Honest, your honor, I thought I was getting shiatsu.")

Of course, because Ms. Palfrey's clients included prominent business and government figures --- among them former Bill Clinton svengali Dick Morris and recently resigned State Dept foreign aid adviser Randall Tobias, according to the NY Times --- one strongly suspects that she wants to call these witnesses less to exonerate herself but in the hope that the powerful clients, fearing exposure, will use their influence to get the charges dropped. (But I'm betting that firing the responsible Justice Dept lawyers isn't exactly an option right now.)

This is a truly elegant legal strategy because the former clients' testimony is undoubtedly relevant and not merely cumulative of what the escorts themselves could say if called to testify. Although the escorts and the clients both have an incentive to claim (whether truthfully or falsely) that there was no sex for money, Palfrey can plausibly argue that she needs the client testimony because she shouldn't be forced to make her defense turn on the credibility of alleged call girls, when she can call pillars of the community. And of course, even a former client who would say that he was only paying for massages or other legal services, will be terrified of the adverse publicity. This defense is tailor-made for tv drama.

George Tenet's Kiss and Tell

What does it take for a guy to stay bought in Washington, D.C. these days? I had assumed that when President Bush awarded former CIA Director George Tenet the Medal of Freedom, it was a not-too-subtle payoff for Tenet's willingness to be the fallguy on faulty pre-war intelligence. Evidently not.

Because Tenet's book isn't officially available yet, it's hard to figure out exactly how his assessment that the evidence for Saddam's possession of WMD was a "slam dunk" was "taken out of context," but the news reports I've seen thus far make little sense. In yesterday's NY Times story, for example, Tenet says that the White House was going to invade Iraq no matter what. That may well be true, and is very damning of the Bush administration, but it's hard to fathom how it lets Tenet off the hook. The "slam dunk" line was part of what enabled the administration to sell the war to the public. So if we blame Bush, Cheney, Rumsfeld, et al for rushing to war, we have to blame Tenet for helping them get away with it.

To be sure, anyone who has read other inside accounts---including reporting by the likes of Seymour Hersh in early 2003, when it should have made a difference---knows that the real storyline on intelligence was that the CIA was skeptical, especially about Iraqi links to al Qaeda, but that the Pentagon and the Vice President created their own alternative intelligence operation to tell them what they wanted to hear. So Tenet is right that the administration's storyline --- "Gee, we believed what the CIA was telling us" --- is full of holes. Tenet is right, in other words, to be upset that he has been made to shoulder the blame for motivating the war. It remains to be seen, however, whether he can evade responsibility for his role in selling it. Either way, he gets to keep his medal.

Should Credentials Matter?

MIT Admissions Dean Marilee Jones resigned yesterday after revelations that she lacked the academic degrees she claimed she had when she first applied for and obtained a junior position in the admissions office 28 years ago. (Read her statement here.) The news was apparently greeted with sadness by MIT staff and students, who regarded Ms. Jones as an outstanding Admissions Dean. That raises the question: So why did she have to go?

We can immediately dismiss the explanation that the lack of formal credentials rendered Jones incompetent to do her job. Her success in the job belies any such conclusion. Had Jones been hired as an administrative assistant with the knowledge that she lacked even a bachelor's degree, and had she been internally promoted until she was given responsibility for running the admissions office, she would still have her job. Sure, if you were interviewing candidates for the position of Admissions Dean at a selective college, you would probably use formal credentials as a filter, but if you found someone who actually was doing the job very successfully, you would sensibly hire or retain that person even if she lacked credentials.

The problem, of course, was Jones's dishonesty. As a professional academic, I take academic fraud very seriously. I also understand that MIT did not want to be in the position of telling its applicants to report their accomplishments honestly when its own Admissions Dean had cheated and gotten away with it. Foxes guarding chicken coops and all that.

And yet, there is something unfortunate about the fact that Jones was let go. (I assume she was "asked" to resign.) Here's an analogy: Suppose that a young reporter fabricates a news story, and on the strength of that story, is hired by a prestigious newspaper. Over the years, the reporter files numerous accurate stories, never repeating the original sin, and eventually becoming a legitimate prize-winning journalist. Should he lose his job because he initially obtained it under false pretenses? Certainly he should pay some price: A public apology; some form of restitution; etc. But why does the earlier bad act disqualify him from employment now? In the Jones case, it's a bit different because, in her words, she did not "correct" her resume when she applied for the Deanship. I take it this means she repeated the fraud. And perhaps that's enough to explain why she had to go. In the counter-factual world in which Jones had only made the initial misrepresentation, however, it's less clear that this ought to count as a separation offense.

In any event, it's worth noting the contrast between MIT and the executive branch of our federal government. At MIT, the discovery of a "youthful indiscretion" leads to immediate resignation of an otherwise highly successful administrator. Over in the Bush Administration, repeated calumnies and other misdeeds earn one the President's unflagging loyalty and the Medal of Freedom.

Prison Rape

The current issue of The New York Review of Books includes a letter on rape in prisons by David Kaiser, a member of the board of an organization called Stop Prisoner Rape. Kaiser's short letter notes: (1) how widespread prison rape is (about ten percent of male prisoners are raped, mostly by other prisoners, while an even higher percentage of female prisoners are sexually abused, mostly by guards); (2) how prison rape can be dramatically reduced by effective oversight and reductions in overcrowding; and (3) the dramatic cost that prison rape exacts in terms of physical and psychic harm to victims, as well as the public health cost from the spread of HIV.

I share Kaiser's view that prison rape is a national scandal but would add that a large part of the problem is our culture. Despite having the highest incarceration rate of any constitutional democracy, prisons and prisoners are generally invisible in American public life. When prison rape is discussed, it is generally thought to be a fit topic for humor or a perverse view about justice--as though contracting HIV via rape is an appropriate punishment for selling marijuana or insider trading. At best, prison rape today is evaluated in the way that ordinary rape of women by men was understood forty years ago, when (with the exception of black-on-white rape, which was treated extremely seriously for reasons having more to do with white male racism than concern for female victims), rape was also a fit subject for sexual humor. (Search for the word "rape" and then read a few lines of dialogue from this transcription of the 1972 Woody Allen film "Take the Money and Run" for a fairly standard example.)

Rape outside of prison, including acquaintance rape, only began to be taken seriously when feminists raised consciousness about the harm rape does, and that task is still not complete. Groups like Stop Prisoner Rape aim to do the same for victims of prison rape. Of course, (as even a fairly conservative Supreme Court acknowledged in 1994), nobody, not even a convicted murderer or rapist, should be raped as a form of punishment, but as a tactical matter for winning hearts and minds, it may be necessary for SPR to focus first on the rape of inmates who are entirely innocent or guilty only of non-violent offenses.

Signing Statements and the Iraq Bill

Just a short musing here. The President has shown, through his as-yet untested use of signing statements, that he really doesn't care much about what the statutes say, so I wonder why he doesn't just sign the spending bill and announce that he's going to ignore it as some kind of unconstitutional infringement on Article II powers. If I were a more exciting version of Harry Reid than Harry Reid, I think that's what I'd dare the President to do. After all, Harry could say, no one's going to impeach the President for his repeated decisions, over the past seven years, to ignore Congress's laws through the use of signing statements, because the President has impeachment insurance. (Impeachment insurance comes in a package called "Dick Cheney").

What is the Point of a Military Trial?

I mean the title of my post today quite literally. The U.S. has charged Canadian Gitmo detainee Omar Khadr with murder in connection with his having thrown a grenade that killed Army Sergeant Christopher Speer during fighting in Afghanistan. Khadr was allegedly part of al Qaeda.

Throwing a grenade at soldiers looks more like warfare and less like terrorism than most of the things that al Qaeda members have done, even if it constitutes a violation of the law of war because al Qaeda forces don't abide by the laws of war. (For example, they don't wear distinctive uniforms, thus permitting them to blend in with, and thereby endanger, the civilian population.) But that still leaves the question of what advantage the U.S. gets from trying the likes of Khadr, rather than just continuing to detain him as an enemy combatant.

One possibility is that the government fears an eventual Supreme Court ruling that enemy combatants cannot be held forever. If so, there would need to be some reason other than simple incapacitation to continue holding them. But there are two difficulties with this theory. First, it's not at all clear that the Supreme Court would place time limits on the holding of enemy combatants, especially after the Military Commissions Act of 2006. Second, the government does not appear to be pursuing military trials as a means of holding detainees longer than it otherwise could. For example, Australian David Hicks got a plea deal in which he will only serve 9 months.

But part of the Hicks deal is his agreement not to make public statements about how he was treated while a detainee. Accordingly, one might think that the point of these trials is to buy detainees' silence about mistreatment. That idea has been floated but it too makes little sense. A much more effective way to keep Hicks quiet would have been simply to keep holding him.

Which brings me back to my genuine puzzlement. Perhaps the Hicks case was an aberration, and the government plans to seek life sentences for Khadr and others. If not, there is a real tactical mystery here.

The No-Asshole Rule

I am currently reading a book with the above title, and I highly recommend it to readers of this blog. It is about the importance of civility in the workplace and the deleterious effect that bullying has on the bottom line (as well as the wellbeing of people at work). As a member of a very contentious profession (an accurate description whether I classify myself as an attorney or as an academic), I can attest to the significance of the lessons in this book. When a culture of bullying develops, it is contagious and ultimately leads to greater turnover (because people hate working with and for assholes, no matter how brilliant) and to less productivity at work (because few employees are willing to go the extra mile for someone who is abusive and unappreciative). Originating with an article published in the Harvard Business Review, the author -- Robert Sutton -- carefully and engagingly outlines the degree to which businesses assume, without evidence, that bullies who are skilled at their jobs or otherwise talented are worth the sorrow and destruction they leave in their wake.

It is, of course, not surprising that a business would put profits above "feelings." What is perhaps surprising is that bullies undermine productivity, no matter how personally productive they are. An organization (or team) thrives when a large number of people (including those who work under the top-tier) invest emotionally in a place, stick around, and care about the group's work product. Sutton defines "certified" (as opposed to temporary) assholes as those who chronically behave as though they are the only worthwhile professionals around, surrounded as they are by useless idiots, and as though once they have reached the top, they owe it to themselves to crack the whip and keep the underlings in line.

To figure out whether a person is what Sutton calls a "Certified Asshole," one must examine the impact that the person has on those surrounding him -- if people tend to feel worse about themselves after interacting with this person and if arguments with this person inevitably devolve into personal humiliation, it is likely that there is a CAH on the premises. Sutton emphasizes that he does not believe people should avoid conflict (conflict is crucial to productivity and growth) but simply that they should handle conflict constructively, make their best arguments, listen to others (something that CAH's are particularly bad at doing), and finally commit to whatever decision is arrived at. Sutton provides several examples of companies that have adopted no asshole policies (including Google and The Men's Warehouse).

I am interested in hearing what readers' immediate reactions are to the notion that workplaces enforce a civility norm of this sort. Does it threaten freedom of expression? Does it remove the most creative (but troubled) souls from our midst? Does it feel like it will threaten the bottom line (even though, based on Sutton's research, it does not actually threaten the bottom line)?

The Edwards Haircuts

The news that John Edwards received two $400 haircuts (for a total of $800) can't bode well for his Presidential campaign, for two reasons. First, it reinforces the image of Edwards as just a pretty face. (See also a very odd video here.) Second, it smacks of hypocrisy. No one in the second America about which Edwards speaks so passionately is shelling out $400 for a haircut. In defense of Edwards, apparently about half the fee was due to the fact that the stylist came to Edwards to save him time, and Edwards says he didn't know how much it would cost. Plus, he has the good sense to joke about it. But still . . . .

The $400 haircut has the power to stick because of the need for our politicians to come across as authentic. If Dick Cheney had hair, and if he had it cut for $400, no one would notice, because Cheney makes no secret of his view that wealthy people should enjoy their riches (or that government should do all it can to help them get richer). But we expect better of populists.

Is that fair? Of course not. A struggling working family would do better under a President Edwards than a President Insert-Name-of-Republican-Here, even if the latter expresses greater cultural affinity for members of that family by pretending to enjoy hunting and Nascar, while supporting a constitutional amendment to ban same-sex marriage. That's the basic storyline of Thomas Frank's What's the Matter with Kansas?, after all.

But if criticism of Edwards for his haircut (or of John Kerry in '04 for enjoying windsurfing rather than something more in touch with the people, like bowling, say) is partly unfair, hypocrisy exacts a legitimate price too. As I argued last month in a FindLaw column about Al Gore's very big house, leaders who demand sacrifices have a moral responsibility to make some of their own, and not just in relative terms. It's easy to lose sight of that point because we have gone through over six years of a two-war Presidency in which the only "sacrifice" that has been asked of those outside the military (and their families) is another trip to the mall. At some point, however, sacrifices will be needed, and it's going to take someone with the appearance as well as the reality of moral standing to ask for them.

French Presidential Election Today

Sunday is typically a slow day for blog readership, so I'll just take this opportunity to remind my French readers to go to the polls. Both of you. Vive la France.

The Murder-Suicide Script

By eery coincidence, this week I read Malcolm Gladwell's The Tipping Point (which I neglected to read when he first wrote it). The book describes the phenomenon of social epidemics, including suicide and murder-suicide epidemics. Gladwell cites compelling evidence that high-profile media coverage of suicides leads to a spike in the suicide rate and that high-profile media coverage of murder-suicides causes murder-suicides to spike. (Most creepily, even automobile fatalities spike following this pattern, suggesting that some people commit suicide and murder-suicide by auto.) In light of this evidence, it's a near-certainty that people will be killed by acts in imitation of the Virginia Tech shooter---and indeed, it appears that there has already been a wave of scares. (It's not always easy to tell which "successful" murder-suicides are attributable to copycatting, which is why the large-n study looks at the change in rate.)

As Gladwell explains, prominent murder-suicides create a "script" that others can then follow so as to get out their "message." Accordingly, any substantial news coverage of a murder-suicide is potentially lethal, but it seems especially problematic to show the killer's videorecorded statement because it makes the script that much easier to follow.

It may be tempting to think that news organizations can show the video on the theory that with its widespread availability on YouTube and elsewhere, the damage has already been done. But this is almost certainly wrong. Some, probably most, people watching the news will not have seen the video before, and each additional viewer raises the likelihood of further violence. That's not an argument for censorship. It may not even warrant self-censorship: A news organization could make a judgment that the newsworthiness of the story outweighs the marginal unwitting encouragement to murder-suicide that coverage provides (although I wouldn't reach that judgment). But at the very least, one would hope that responsible news organizations consider the very real cost. The fact that the networks have now said they will limit re-airing the video in response to claims of offense by victims' family members suggests that they don't appreciate the more substantial harm to which they have already likely contributed.

Happy Birthday to Justice Stevens

Justice John Paul Stevens turns 87 today. He is a remarkably sharp human being for any age, but still, that number gives one pause. In keeping with yesterday's theme of quoting other abortion opinions, I thought I'd excerpt here the closing paragraph of Justice Blackmun's concurrence in Planned Parenthood v. Casey. He stated: "I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today."

Some people criticized Justice Blackmun at the time for expressly politicizing the issue, but the criticism seems to miss the mark because everybody already knew the issue was politicized, and both the plurality (actually the majority on this point) and the dissent talked about the interaction between politics and the Court's jurisprudence.

It will be interesting to see whether and how Wednesday's decision plays politically. I have always understood "partial birth abortion" as a wedge issue. Someone who is truly pro-life can't possibly think that killing a baby after it's partially delivered is much worse than killing it inside its mother's womb, but people who are on the fence or pro-choice with reservations could be moved to think (if only, as Judge Posner noted, through ignorance) that there is something especially horrific about this class of abortions. That's why, after all, partial-birth abortion bans were enacted even in states with pro-choice majorities. To the extent that yesterday's decision approves the federal ban, perhaps it neutralizes this particular wedge issue, which ought to favor pro-choice candidates. In fact, however, I think the likely effect will be to motivate both pro-life and pro-choice activists, as they realize that Roe itself may be on the table after one more appointment.

But the main point of this post is simply to say happy birthday to Justice Stevens.

More on Posner and Late-Term Abortions

I am generally no fan of Judge Posner's work, to put it mildly. There are times, though, when he puts aside his usual bag of tricks and simply gets it right. Mike's posting earlier today quotes extensively from Posner's dissent from the en banc decision in Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999). In addition to the paragraphs that Mike excerpts, I commend the following for your consideration:

"Imagine a married woman, pregnant, told by her physician that her life depends on her obtaining an abortion. He tells her it would be better from the standpoint of minimizing the risk to her of medical complications from the abortion for her to have a D & X. But, he adds, unfortunately the law prohibits the procedure. It does so not because the procedure kills the fetus, not because it risks worse complications for the woman than alternative procedures would do, not because it is a crueler or more painful or more disgusting method of terminating a pregnancy, but because the state wishes to make a statement of opposition to constitutional doctrine. A legislature may be taken to intend any consequences [*882] of its handiwork that are at once natural, highly probable, and wholly foreseeable (and foreseen). Here the intent is to block a woman from seeking an abortion when her doctor advises her that the best procedure for her is criminal." Id. at 881-82.

Powerful stuff. This discussion supports Posner's description of the cynical politics of the PBA movement, which he offers earlier in the dissent:

"The wave of 'partial birth' abortion statutes that broke over the nation after a description of the D & X procedure was publicized ... does not exhibit the legislative process at its best, whatever one thinks of abortion rights. Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based ... on sheer ignorance of the medical realities of late-term abortion. The uninformed thought the D & X procedure gratuitously cruel, akin to infanticide; they didn't realize that the only difference between it and the methods of late-term abortion that are conceded all round to be constitutionally privileged is which way the fetus's feet are pointing. Opposition to the bills that became these laws was at first muted not only by ignorance of the character of a late-term abortion but also by the fact that few women are likely to be affected by the laws. Circumstances conspired, as it were, to produce a set of laws that can fairly be described as irrational." Id. at 880.

Contrast this with the following from Justice Kennedy's opinion in yesterday's Carhart decision:

"[T]he government may use its voice and its regulatory authority to show its profound respect for the life within the woman. See, e.g., 505 U. S., at 873. The Act’s ban on abortions involving partial delivery of a living fetus furthers the Government’s objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned."

So, if Congress decides that one type of abortion is similar to killing a newborn infant, even though that method is in reality no more cruel or disturbing than other methods still available to her under the law (at least as the law currently stands), a woman's health may be put at risk. That is now the law of the land.

Posner on Partial-Birth Abortion

As I noted yesterday (here), the Supreme Court's opinion in Gonzales v. Carhart draws some distinctions between the federal partial-birth abortion statute it upheld and the Nebraska statute it struck down seven years ago in Stenberg v. Carhart, but both the federal Act and the Nebraska Act share a crucial feature: neither contains a health exception. As Justice Ginsburg persuasively argues in dissent in yesterday's case, there's no plausible distinction between the Nebraska law and the federal law on that score; yet the majority purports not to overrule the 2000 decision. Well, one might ask, so what? What's so bad about the absence of a health exception? Justice Ginsburg gives a good answer, which I suppose will be widely read. Here I thought I'd let Judge Posner answer the question. Here's what he had to say in dissent in a 1999 case involving challenges to Illinois and Wisconsin partial-birth abortion bans:

Immediately the question arises why the Wisconsin and Illinois legislatures didn't try to come within reach of the cases that permit states to limit the right of abortion by making an exception for pregnancies that endanger the woman's health, the same exception they have written into their other abortion statutes. When pressed at argument, the lawyers for the two states could answer only that the exception is unnecessary. The lawyers were confident that such an abortion is never required to preserve a woman's health. They may be right, though I think not . . . . But if so, they are right only for today. Tomorrow, studies may show that, yes, there indeed are cases where a "partial birth" abortion is necessary to protect the mother's health, as many physicians believe. Tomorrow, then, these two statutes may be unconstitutional even by the lights of the majority opinion. Why would a state risk the early obsolescence of its statute by making it wholly dependent on ever-changing medical opinion, when to avoid this risk it need only have excepted those "partial birth" abortions, if any, that are necessary to protect the woman's health? If there are few such cases, the exception will rarely be invoked; if none, never. The answer is that opponents of abortion do not think there should be an exception for abortions that endanger a woman's health. Life, yes, but not health. These statutes, remember, are not concerned with saving fetuses, with protecting fetuses from a particularly cruel death, with protecting the health of women, with protecting viable fetuses, or with increasing the Wisconsin population (as intimated, surely not seriously, by Wisconsin's counsel). They are concerned with making a statement in an ongoing war for public opinion, though an incidental effect may be to discourage some late-term abortions. The statement is that fetal life is more valuable than women's health. I do not deny the right of legislatures to enact statutes that are mainly or for that matter entirely designed as a statement of the legislators' values. [citation omitted]. Nothing in the Constitution forbids legislation so designed. Many statutes are passed or, more commonly, retained merely for their symbolic or aspirational effect. But if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue. The statutes before us endanger pregnant women--and not only pregnant women who want to have an abortion. There is no exception for women whose physicians tell them you must have an abortion or die. It is true that if a "partial birth" abortion is necessary to save the woman's life, the statutes permit this. But if her life could be saved by another type of abortion, even one that threatened her health--that threatened to sterilize her or to paralyze her--then the physician would be committing a felony if he performed a "partial birth" abortion.

Well put, Judge P.

Supreme Court Partial Birth Abortion Ruling

Today the Supreme Court upheld, by a 5-4 vote, the federal partial birth abortion ban. (Opinion here.) Here are a few highlights:

1) Justice Kennedy, who dissented from the Court's 2000 ruling invalidating the Nebraska partial birth abortion ban, writes the majority opinion, purporting to distinguish, rather than overrule, the Nebraska case, Stenberg v. Carhart.

2) The Court does not defer to the findings of Congress, which it acknowledges are factually inaccurate, about the medical necessity of the procedure. (Personal plug: Kennedy's opinion accepts the argument on this point of an amicus brief by a few law profs, including yours truly.)

3) The distinction on which Kennedy principally relies -- the greater specificity of the federal statute -- works for overbreadth and vagueness, but it's not clear that it should make a difference on the core issue: whether a government (state or federal) can ban what many doctors think is the safest way to perform a medical procedure. On that point, Justice Kennedy simply says that where there is medical disagreement, there is no constitutional obstacle to reasonable governmental regulation. This point seems impossible to square with Carhart.

4) Throughout the majority opinion, Justice Kennedy assumes the validity of Planned Parenthood v. Casey, ostensibly because Justices Scalia and Thomas, who dissented in Casey, are joining him. But the assumption also allows CJ Roberts and Justice Alito to remain in the closet about whether they would vote to overrule Roe and Casey if faced with that question directly. They do not join the Thomas/Scalia concurrence reiterating disagreement with Casey.

5) About 2 pages of the slip opinion explain that some women come to regret having abortions, and that there will be fewer such women if they know what an intact D & E (i.e., "partial birth abortion") involves. This is a strange passage because it seems like it would support a requirement of disclosure of a method of abortion, rather than its prohibition.

6) The Court leaves open the possibility of an as-applied challenge to the Act by a woman who really needs an intact D & E, although does not explain how that challenge could possibly be resolved in time to get a ruling before the emergency has passed. The Court notes that she can get the procedure without a court order under the law's life exception, but there is no health exception.

Negotiations Over War Funding

President Bush meets today with the majority and minority leaders of the House and Senate to discuss war funding. With Bush threatening to veto any measure that includes troop withdrawal deadlines, and the current House and Senate bills containing such deadlines (albeit somewhat different sorts), negotiation theory says that the outcome should be some sort of a compromise. Neither side can afford to simply walk away, because Bush does need the funding to continue the war (although he can probably get by for a few months by shifting budget items a bit).

We would expect that the exact nature of the compromise should depend on the relative bargaining strength of the parties, but that's hard to gauge for at least two related reasons. First, although Democrats have public opinion on their side in wanting to set a timetable for troop withdrawal, Bush can portray the Democratic position as failing to support the troops in the field (even if that's not the Democratic intent). It's hard to know in advance which view will prevail with the public. Second, so as to avoid the perception that Democrats don't support the troops, the Democratic leadership has stated unequivocally that it will fund the troops, full stop. That suggests that if Bush vetoes a version of the bill with a timetable for withdrawal, Congress (probably meaning nearly all Republicans and some Democrats) will then pass a simple funding provision. So much for the power of the purse.

So much for that idea

As predicted, my suggestion that the Virginia Tech shooter's identity be kept confidential has been ignored. There will now follow a media circus examining every aspect of this one troubled man's life and his decision to take it along with those of many innocent others. In a futile gesture, I'll refer to him here simply as "the shooter."

Posner on Barak

Richard Posner has a review in this week's New Republic of The Judge in a Democracy, by former Israeli Supreme Court Chief Justice Aharon Barak. It is a typical example of the Posnerian art of the takedown. Although Barak "supposes himself to be in some sort of sync with liberal American judges," Posner writes, "he actually inhabits a completely different -- and, to an American, a weirdly different -- juristic universe. I have my differences with Robert Bork, but when he remarked, in a review of The Judge in a Democracy, that Barak 'establishes a world record for judicial hubris,' he came very near the truth." And more: "What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices. He puts Marshall, who did less with more, in the shade." And more: "Barak bases his conception of judicial authority on abstract principles that in his hands are plays on words." His concept of democracy "is not a justification for a hyperactive judiciary, it is merely a redefinition of it." Barak "purports to derive his judicial approach" from various abstractions, "but they cannot be the real source of his jurisprudence, because they are as empty as they are lofty."

Posner attempts to use Barak as an example of why American judges shouldn't cite foreign cases as authority. By "authority," he means treating foreign decisions as having some weight in and of themselves rather than because of the rightness of their arguments, which he would permit. I think this argument is a red herring. Few American judges even purport to cite foreign cases as "authority" in the sense in which Posner means it. On those occasions when they have, I doubt they were really doing so as all; they were actually convinced by the rightness of those opinions. And even when they seem most clearly to be treating foreign decisions as "one more twig to place in the pans of the scales of justice," they generally only do so after having mustered an array of purely domestic arguments in favor of their opinions; even then, they still only use the "twig model" to suggest the extent to which a variety of judges, foreign and domestic, have given the same shape to abstract words contained in our Constitution itself. Posner's argument on this point is overstated and based on a questionable description of the actual American practice of citing to foreign law; his critique of Barak adds nothing to the scales on that argument.

But it is still a useful critique. American lawyers and legal academics, insular as they are, may not fully appreciate Barak's influence, both in Israeli law and in constitutional law in a variety of other countries, including Canada. (He seems to be plugged in somewhat at Yale, but I am not sure that institution meets the definition of "American law school.") In many respects he is a model of the constitutional judge in a variety of legal systems with 20th-Century constitutions. And like Posner, I think his is a dangerous model. Canadian judges have been writing for several years now about phrases like "human dignity," also used by Barak. They are no closer to a meaningful and predictable definition of that phrase, nor are they closer to justifying it as a useful and constraining constitutional principle that does all they would have it do; they can never get closer. Posner writes that Barak "was a judicial buccaneer, and maybe that was what Israel needed." But a legal system can only stand so many buccaneers, let alone a whole judiciary that attempts to sail under the privateer's flag. Barak may have been a great judge, in other words, but it is far from clear that he was a good one, and other constitutional courts should be leery of taking him as their beau ideal. Read the whole thing, as they say.

I should say that this is a pretty opinionated post, and that I am more familiar with Barak through his extrajudicial writings than through his opinions. I welcome the reactions, however critical, of my Israeli and Canadian colleagues on this blog. Have at it.

Virginia Tech Tragedy

Unsurprisingly, within minutes of the news of the Virginia Tech shootings, proponents and opponents of gun control saw in this tragedy a confirmation of their respective world views. For example, the Violence Policy Center issued a statement deeming such shootings "the inevitable result of the ease with which the firepower necessary to slaughter dozens of innocents can be obtained." As of 7 am Eastern Time today, the National Rifle Association had only issued a statement expressing condolences pending full discovery of all the facts, but that didn't stop individual NRA members on blogs and comment boards from drawing the exact opposite inference from the VPC: If just one of the law-abiding students had been legally permitted to carry a concealed handgun, he or she could have taken out the gunman at an early stage in his rampage.

I don't kid myself that this debate will be settled with empirical evidence (which is how, I think, sensible policy should be made), but I wonder whether common cause can be found around a different objective: non-disclosure of the identity of the gunman. As I post, all that has been released is the fact that the gunman was an Asian man, but it appears to be only a matter of time before more is known and, inevitably, disseminated to the public. Consistent with reporting other newsworthy details, wouldn't it make more sense to deny the gunman posthumous recognition --- if for no other reason than to discourage copycats seeking similar recognition? I don't propose censorship, just some measure of self-restraint on the part of the news media. And no, I don't believe my suggestion will be followed.

Imus, Corzine, Proximate Cause, and Third-Party Standing

Were it not for Don Imus's outburst about the Rutgers women's basketball team and the ensuing brouhaha, NJ Governor Corzine almost certainly would not have been injured on the highway, because he would not have been on his way to a meeting with Imus and the team. Thus, when the red pickup swerved, the governor's vehicle would not have been run off the road (if indeed the red pickup would have swerved at all. Perhaps, per the butterfly effect, the driver of the pickup would have behaved differently in the alternative universe I'm positing). Does this make Imus responsible for Corzine's injuries? Of course not. As every 1st year law student knows, Imus was not the "proximate cause" of the auto accident. His remark was merely one of innumerable events that led to the governor's SUV being where it was when it was hit.

This conclusion does not turn in any way on the fact that Imus was engaged in legal (if offensive) behavior. Even if we suppose that Imus defamed members of the Rutgers team by falsely calling them prostitutes, Corzine wouldn't have an action against Imus for defamation. Imus didn't call Corzine a "nappy-headed ho," after all. Just as Cardozo wrote in the Palsgraf case that there is no "negligence in the air," so too there is no defamation in the air.

As I said, all of this should be perfectly obvious to anyone who has taken a torts class in the last 80 years. But I think this case (or a hypothetical example with the same structure) could be used to make the notion of proximate cause clearer to students than the way it is typically taught. The post-Legal Realist approach to proximate cause tends to deconstruct it: "a legal conclusion" is how torts teachers sometimes describe the notion of proximate cause. That's not wrong but it's not especially helpful. A better way to explain the concept might be to link it to the law's general antipathy to third-party standing. For the plaintiff to prevail in a suit, it's not enough that the plaintiff suffered an injury as a result of defendant's wrong: what made the defendant's conduct wrongful must be that it violated the plaintiff's rights or interests (unless there is some special reason to permit third-party claims). The Legal Realist point is still valid: To say what duties are owed by whom to what persons or entities requires a legal conclusion; it can't be deduced from first principles. But if phrased in the language of third-party standing, I suspect that much of the mystery surrounding proximate cause would dissolve.

Caveat: I spent about 2 minutes on Westlaw looking to see whether anyone has previously linked the concepts of proximate cause and third-party standing in this way, and couldn't find anything definitive. That doesn't mean there isn't a full scholarly elaboration of the point out there somewhere. There very well might be. But in case there isn't, I hereby declare "dibs" on this topic. (And everyone knows the legal effect of such a declaration!)

Tidbits from the Gonzales Eight Documents

I'd like some help in refreshing my memory.

Isn't it true that sometime in the not-too-distant past, the presidential practice was to nominate both district judges and US Attorneys following consultation and recommendation with home state senators, even if both senators were members of a political party different from the president? In New York for example, Moynihan and D'Amato had a 3:1 deal, which was that the senator who was not from the president's party would get the call on 1/4 of the vacancies. And if my memory is correct, when did that practice end?

Tidbit #1: (Advise and consent is a joke.) I asked the intro question because I noticed an additional slap at the Senate revealed in the April 13 G8 document production. In the Kyle Sampson list of possible replacements for the G8, all of the names were current employees of main Justice or the White House, intended to be moved out to the districts. That, combined with the Patriot Act provision that allowed interims to be appointed by the AG, rather than by the Chief Judge of the district, exidenced a desire to sidestep even the senators of the president's own party, and to move the political patronage from the senators (who would make their recommendations to the president) to the president alone. In other words, a "loyal Bushie" (from the earlier document production) is someone who comes out of the national Bush political machine, and then gets pushed out into a district, regardless of whether he's got any ties to or experience in the local legal community. And with an interim appointment, there's not even the risk of a senatorial hold on a nomination, because there is no nomination to hold. In the talking points prepared for discussion of the Griffin appointment, the administration argues that while they always consult with home-state senators, and therefore asked Senator Pryor whether he would oppose the nomination, and Pryor told them that he would oppose it. (Arkansas has two Democratic senators -- Pryor and Blanche Lincoln). So, Griffin withdraws his nomination and the Administration wants to appoint him to the interim position. So, as I read it, the Senate's role is, if the Administration's candidate will be confirmed, then they'll submit the nomination. If it won't be confirmed, then they'll appoint the same guy as an interim without Senate confirmation.

Tidbit #2: (Another reason to be a legislative history skeptic). The drafts of the talking points scattered throughout the April 13 dump offer a series of explanations as to why Congress enacted the aforesaid Patriot Act amendment. The entertaining part was that the Justice Department had an explanation for why Congress amended a statute, even though I have yet to hear of a single senator or representative who has owned up to even knowing that the provision was in the bill that he voted for.

Tidbit #3: (Be careful whose school you diss.) Here's a word to the wise. When you're going to do something like, say, fire the US Attorney for the Eastern District of Arkansas and replace him with one of Karl Rove's guys, don't diss the existing US Attorney or the state that he's going to serve by saying something like, "Mr. Replacement has very strong academic credentials (Hendrix College and Tulane Law School; 'attended' Pembroke College)" while "Mr. Incumbent did not attend top-rated universities (University of Arkansas, Univ of Arkansas Law School)". You see, many of the people of Arkansas attended the University of Arkansas, and are perfectly happy -- indeed proud of -- that school's output. You also shouldn't make that argument when your most recent nominee for the Western District of Arkansas has the Arkansas State/Arkansas Law School credentials.

Tidbit #4: (Don't these people have work to do?) There is a huge number of incompetent DOJ employees engaged in reviewing and re-reviewing their own incomprehensible actions and reactions; to make matters worse, the pointless emails and even more pointless meetings would drive any sane person nuts. This is the Peter Principle in practice.

Tidbit #5: (Truest thing I read.) From Tasia Scolinos' email: "I am concerned we look a little goofy . . . ." Amen to that, brother.

Here's a Topic: Discuss

I'm posting from my blackberry today and tomorrow, so I'll keep it short. For today, here's a topic: "If the World Bank fires Paul Wolfowitz, the nepotism and hypocrisy (because he has made anti-corruption measures a priority) will be mostly a pretext. Wolfowitz was unloved from the beginning because of his role in the Iraq war.". Discuss amongst yourselves.

Maybe it is the Cover-Up After All

On Monday I suggested (here) that contrary to the Nixonian wisdom about scandals, the action in the Gonzales Eight Massacre really does concern the underlying conduct rather than the cover-up. With the emergence of more details about the use by Karl Rove and others of their Republican National Committee email accounts, I'm beginning to think that the truth lies somewhere in between. More precisely, it appears that the cover-up and the conduct are inextricably connected.

The Presidential Records Act requires the White House to save "[d]ocumentary materials produced or received by the President, his staff, or units or individuals in the Executive Office of the President the function of which is to advise and assist the President . . . ." Although the law was adopted before the widespread use of email, it clearly covers email. Thus, the use of RNC rather than White House email accounts for official government business --- such as advice and assistance regarding which U.S. Attorneys to retain and which to dismiss --- looks like an attempt to circumvent the law.

Notice the mirroring quality of the scandal and the cover-up. The scandal --- efforts to pressure U.S. Attorneys to make decisions about whom to prosecute based on the party affiliations of the potential defendants --- subverts justice by making the government an agent of a political party. Meanwhile the cover-up --- use of RNC email accounts to evade responsibility for acts committed in a governmental capacity --- is an effort to outsource government functions that by law must be undertaken under government supervision.

That, of course, assumes the worst. The Administration's defenders note that use of RNC accounts could have been motivated by a desire to comply with prohibitions on using government resources for partisan purposes, such as fundraising. The content of the emails --- assuming they're all found --- should settle this question.

Could Congress Fight Global Warming By . . . Invalidating Local Prohibitions of Clotheslines?

As the Times’ Kathleen Hughes points out today, some 60 million Americans are governed by laws that prohibit them from hanging a clothesline and line drying their laundry. What does this have to do with global warming? As she explains:

There were more than 88 million dryers in the country in 2005, the latest count, according to the Association of Home Appliance Manufacturers. If all Americans line-dried for just half a year, it would save 3.3% of the country’s total residential output of carbon dioxide, experts say.

But what is the law preventing such activism? Thousands of homeowners’ associations have covenants doing so. Yes, that most American of traditions, the clothesline, is often outlawed by that most suburban of traditions—the private agreement governing the aesthetics of the subdivision. (There is a real irony here I will resist commenting upon.) Individuals are not without options. But it got me thinking (especially given how my friends are always telling me I’m nuts for writing off federal authority when it comes to solving complicated social problems): would Congress have the constitutional power to invalidate all these covenants?

It would not be unprecedented: Section 207 of the Telecommunications Act of 1996 prohibited the enforcement of any covenant or ordinance banning satellite dishes of less than a meter in diameter. See, e.g., Daly v. River Oaks Place Council, 59 S.W.3d 416 (Tex. App. 2001). Although . . . maybe it would be a taking under the Court’s mangled jurisprudence of constitutional property.

Isn't Bush Supposed to be the "War Czar?"

Yesterday the Washington Post and other media outlets reported that the Bush administration has been turned down by three retired generals asked to take the position of "war czar." News accounts focused mostly on the reasons why the position has proved so hard to fill. Most stories quoted retired Marine Gen. Jack Sheehan's explanation for declining the job: "The very fundamental issue is, they don't know where the hell they're going." Moreover, with VP Cheney and other hawks still exerting substantial influence within the administration, analysts explained that the occupant of the Czar job would not have sufficient power to accomplish its goal.

What exactly is that goal? According to the Post: "The idea for creating the new position follows concern over longstanding disputes between civilian and military officials in Iraq. The war czar would have the authority to issue directions to the Pentagon, State Department and other agencies." Call me old-fashioned, but I thought the way you get civilian coordination of the Pentagon, State Department and whatever other agencies are involved in the war effort would be at the Cabinet level, where each Department head can meet with the Commander in Chief, who also conveniently happens to be the head of the whole Executive Branch. Indeed, they could all meet together in . . . oh, I don't know, let's say a "Cabinet meeting." What exactly does one add by inserting another official between the President and his direct reports?

The rage for czars in general makes little sense. As Judge Posner noted in his critique of the 9/11 Commission Report, putting an intelligence czar in charge of "connecting the dots" from a wide range of sources is likely to have the perverse consequence of filtering out divergent interpretations. It reinforces just the sort of groupthink it ostensibly redresses. More broadly, it takes a peculiar sort of myopia to think that the way to address a problem in the company chart or its public sector equivalent is simply to create a new position on top of the flawed chart.

More broadly still, even if the creation of a war czar were a sensible reaction to an organizational problem, the whole premise that our problems in Iraq (and Afghanistan) are structural/tactical is deeply flawed. To be sure, this new premise represents a kind of progress in that by seeking to adopt a new structure the administration tacitly admits that the existing structure doesn't work. It is, in other words, an admission of incompetence in managing the occupation. Such an admission will no doubt play well with the Thomas Friedmans and Hillary Clintons of the world---people who supported the war but have criticized the administration's bungling of the job. But if, as tougher critics warned from the very beginning, the underlying problem is the impossibility of bringing democracy by force of arms to a fractious, resentful people, then even the most clear-eyed shakeup of the management team and its tactics will only delay the inevitable day of reckoning.

Eighth Circuit En Banc Argument Today on South Dakota "Fetus is a Human Being" Informed Consent Law

Last October, in Planned Parenthood v. Rounds, a 2-1 panel of the Eighth Circuit upheld a preliminary injunction against enforcement of South Dakota's informed consent abortion law. In January of this year, the court agreed to rehear the case en banc. The oral argument is today. A number of provisions of the law are at issue, but the key ones require that at least 2 hours before the performance of an abortion, a doctor must inform the patient:

. . .
(b) That the abortion will terminate the life of a whole, separate, unique, living human being;
(c) That [the patient] has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota;
(d) That by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated . . . .

The law is challenged as an infringement of the doctor's right to freedom of speech and a patient's right to an abortion free of undue interference by the state. In principle, the case ought to be loaded in favor of the panel decision because the standard of review of a district court's grant of a preliminary injunction---whether there was an abuse of discretion---is deferential. But in practice, the court is likely to treat the matter as presenting legal questions resolvable de novo.

The Eighth Circuit panel opinion found the Supreme Court's upholding of the requirement that women be informed about the availability of pro-life information in Planned Parenthood v. Casey inapposite because there the doctor himself or herself was not required to provide that information. Here, by contrast, the panel said, was a case in which a doctor was being required to follow the state's ideological script. (Unlike in Rust v. Sullivan, cited by neither the majority nor the dissent, the compliance with the script is not made a condition of funding.) The dissenting judge on the panel (Judge Gruender) and the state in its written submissions, dispute the characterization of the required disclosures as "ideological," deeming them basically factual.

To my mind, Judge Gruender's better argument (which he also makes in his panel dissent) is that the state is permitted, in an informed consent law, to require the provision of "ideological" information. This is certainly suggested by language in Casey --- e.g., "the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term" --- and it makes practical sense. If, for example, a state legalized physician-assisted suicide, I would think it permissible for the state to require a physician, as part of getting informed consent, to warn the patient that suicide is irreversible (duh) and more importantly, to express the view that life is precious. So the real issue in this case is not whether the message is ideological but whether the particular ideological message --- and the requirement that a woman seeking an abortion sign each page of the message --- exerts undue pressure.

Hunger Strikes and Their Audience

Yesterday brought news that a hunger strike by Gitmo prisoners had gained new participants, this time protesting isolation in the newly completed Unit 6. At the same time, the news stories quoted camp officials as saying that the surge in hunger strikers waned after reporters left and the new strikers were faced with the prospect of forced feedings through nasal tubes. Here I'll briefly explore the question of what the use of a hunger strike says about the strikers' assessment of their audience.

In modern times, hunger strikes have been used most famously by American and British suffragists, by Gandhi, and by IRA prisoners. Hunger strikes were not a prominent tactic of the American civil rights movement, although Dr. Martin Luther King, Jr. was influenced by the broader strategy of non-violent protest used by Gandhi and others. That American and British authorities have so often been the target of hunger strikes and so-called passive resistance may say something about perceptions of public opinion and democracy in these two countries. Hunger strikers judge: 1) that the public will infer that the strikers must have serious grievances if they are willing to risk death or painful involuntary feedings to have them redressed; 2) that the public will, upon learning of the hunger strike, demand that authorities respond to strikers' grievances; and 3) that the authorities will be responsive to this demand. Indeed, it is tempting to see in the hunger strikers' logic a kind of homage to the presumed humanity of those whose policies they protest.

Tempting but maybe wrong. Gandhi, for example, famously wrote to Hitler (twice) to urge him to abandon war and said that his method of non-violent resistance was the right tool for Jews, Czechs and others to use to "oppose" Nazism. So if we count Gandhi's use of ahimsa/satyagraha against the British as a compliment to British decency, we have to discount the compliment because of Gandhi's naivete about its universal appeal. Likewise, even today we see hunger strikes against the regimes in China and Iran, neither of which is especially well known for its gentility. No doubt such strikes are partly meant to affect public opinion in the West, and thereby to apply indirect pressure, but that doesn't alter the bottom line: A hunger strike against a particular regime is no proof of the basic decency of that regime.

Bloggers' Codes and Blogs as "First Amendment Institutions"

In a piece published last year called "'Or of the [Blog]'" -- a title that draws on Potter Stewart's classic speech, "Or of the Press" -- I argued that we should think about blogs as a kind of autonomous institution under the Press Clause, and "draw the contours of blogs' institutional autonomy in a way that is appropriate to blogs as an institution," drawing on the institutional "purpose, value, and nature of blogs." In particular, I argued that "the norms developing in and around the blogosphere -- both bloggers' norms and readers' norms -- suggest the development of [a collective] institutional framework that may collectively do much of the verification, correction, and trust-establishing work that established news media institutions do individually." I argued that such an approach might encourage courts to "give blogs substantial autonomy to act, while monitoring the development of norms of behavior in the blogosphere and encouraging blogs to develop rules of conduct that deter the worst of the social ills that might emerge from the blogosphere."

Comes now the New York Times, which reports today on some bloggers' efforts "to create a set of . . . guidelines to shape online discussion and debate." The article is mostly a collection of anecdotes about incivility on blogs, and isn't that helpful, but the proposed guidelines and other relevant materials are available here and here. One interesting aspect of the proposal is that, in the Times's words, it suggests that blogs might pick among a number of different sets of guidelines, representing different norms and different degrees of self-regulation, and post a corresponding "badge" on their page "to indicate to readers what kind of behavior and dialogue they will engage in and tolerate." So the guidelines themselves indicate that different blogs might conform to different levels of self-regulation, which in effect would certify that a particular blog meets one among a number of different standards of civility and trustworthiness.

Some comments: First, as my article suggests, whether we formalize these developments or not, they are inevitable; of course various norms of conduct are emerging and will continue to emerge in the blogosphere. Second, to connect the story and my article, we might in turn use different levels of self-regulation to gauge the appropriate level of legal autonomy enjoyed by each such blog. Alternatively, we might allow a diverse number of norms to develop and compete, slowly developing a sense of rolling "best practices" that gradually would help shape the legal norms governing speech in the blogosphere. (This kind of approach should be familiar to fans of the scholarship of this blog's paterfamilias, like this article.) This is not to say that every blog cannot claim the protection of general First Amendment principles. But self-regulatory norms often help shape the development and application of those general principles. For example, a variety of institutional norms observed by mainstream media institutions often serve as evidence that those institutions were acting without actual malice, and so help to insulate them from defamation claims. The same thing might occur in the blogosphere, drawing on a different set of self-regulatory norms to help define the level of responsible conduct at which a blog would be largely insulated from liablity for various speech acts.

Finally, the Times article is directed mostly at civility norms. But, for social and legal purposes, that is hardly the only pertinent issue in the blogosphere. To the extent that the blogosphere also engages in original reporting of facts, another issue is how to develop blog-specific norms of trustworthiness and accuracy. Those norms might well look different from, say, the ways in which newspapers self-regulate to meet those criteria. For example, while newspapers' correction mechanisms often function internally, through layers of reporting and editing, blogs might correct externally, through a system of linking and commenting. But there is no doubt that, whatever shape those norms take, they will be important both for social and legal purposes as blogs increasingly engage in primary reporting rather than mere reaction and commentary. The guidelines don't say much about such norms, although the Times piece suggests that one of the set of proposed guidelines would require bloggers to "get a second source for any gossip or breaking news they write about." That's certainly one way to go, although, again, it seems to me that the guideline authors should think about ways in which blogs might take advantage of the blogosphere itself to fulfill an accuracy and error-correction norm, such as pledging to link to contrary evidence or update posts to reflect new information.

I welcome other suggestions. In any event, I think the guidelines debate is one that is inevitable and worth having, and that the ways in which blogs debate and practice norms of self-regulation will have an important long-term impact on the ways in which the law itself responds to the blogosphere.

Newt Piles On But Does He Get It?

Newt Gingrich is the latest prominent Republican to assail AG Gonzales for his handling of the Gonzales Eight Massacre. In his appearance on Fox News, former Speaker Gingrich said “This is the most mishandled, artificial, self-created mess that I can remember in the years, in the years I’ve been active in public life.” (That's according to the NY Times report. I don't actually watch Fox News --- unless I happen to be in a hotel room that has just been vacated by VP Cheney. Explanation here.)

It's hard to tell exactly which aspects of the "mess" Gingrich was upset about, but the use of the words "mishandled" and "artificial" suggest that he, like a number of others who have abandoned the sinking Gonzales ship, either doesn't really get it or is deliberately obfuscating. Of course it was wrong for Gonzales to claim that the US Attorney dismissals were performance-related and to dissemble about his involvement in the affair. But this is one instance in which the Nixonian conventional wisdom --- it's not the crime; it's the cover-up --- is wrong.

The underlying plot to pressure U.S. Attorneys to bring disproportionately many prosecutions of Democrats and disproportionately few prosecutions of Republicans --- if that is in fact what was afoot --- was a grotesque abuse of power. Yes, the AG has a credibility problem, and yes, he and the Administration, with its preposterous offer of a no-recording/no-pencils session with Rove, have "handled" the issue badly in the sense that they've impeded efforts to uncover what actually happened. But if what actually happened were retaliatory firings of prosecutors who refused to weigh potential defendants' party affiliations in deciding whether to bring criminal charges, then this is much more than a cover-up.

Gagging Government Scientists

Last week, the Commerce Department announced a new rule regulating communications with the press by its own scientists on any subject of “official interest.” There are few subjects of more “official interest” these days than climate change. One of the things that hindered the Administration’s reign of denial for the last six years was the frequency and vigor of agency staffs’ off-the-record corrections for the record every time some spokesflack belched another lie or misdirection. The new rule, set to take effect in May, is awash with rhetoric acknowledging the good of “broad and open dissemination of research results [and] open exchange of scientific ideas.” In substance, though, it forbids agency staff from communicating pretty much anything—even if prepared and delivered on one’s own time—where that communication hasn’t first been vetted up the chain-of-command.

Most important, according to PEER (Public Employees for Environmental Responsibility), is that any “fundamental research communication” must, “before the communication occurs,” be approved by the designated “head of the operating unit.” The directive states that approval may not be withheld “based on policy, budget, or management implications of the research,” but it doesn’t define those terms and it limits appeals to within the Department. Furthermore, staff must give the Department at least two weeks “advance notice” of any written, oral or audiovisual presentation of a “public communication” prepared on their own time if it “is a matter of official interest to the Department because it relates to Department programs, policies or operations.” The directive itself is here.

Now, if the communication occurs on one’s own time and is not within the scope of employment, it seems like protected speech. True, there are many justifications one could imagine for such a directive. But as the Court acknowledged last Term in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), the government carries a real burden here. Id. at 1957 (“So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” (citing Connick v. Myers, 461 U.S. 138 (1983) (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).

Even supposing an off-duty “public communication” is arguably within the scope of employment, though, might Connick and other First Amendment protections of government employee speech still shield the employee? The Garcetti Court held that when public employees make “statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” “Pursuant to” might be read very broadly. But the Court did limit legitimate “managerial discipline” by noting that “[e]xposing governmental inefficiency and misconduct is a matter of considerable significance.” Id. at 1960-61. You make the call.

Federalism Versus Presidential Power Redux

I'll just use today's entry to call attention to Thomas Healy's post from yesterday on the Medellin cert petition. Thomas notes the oddity of the President invoking his foreign affairs power in support of his domestic authority to tell the Texas courts what to do. It's also worth noting this line from last week's decision in Mass v. EPA: "while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws." That doesn't quite contradict the power asserted by the administration in the Medellin case, but it does suggest a general limit to presidential authority domestically, a limit supported by the decision in the Steel Seizure Case.

Speaking of the clash between federalism druthers and Presidential power druthers for conservatives, I highlight that issue in my FindLaw column on Massacusetts v. EPA, which will appear on the Writ frontpage tomorrow.

Happy Easter to those celebrating, likewise a continued happy Passover, and corresponding good wishes to persons celebrating or not celebrating other holidays, observances, etc.

When Federalism Meets Executivism

What happens when the Bush administration is forced to choose between federalism, Texas and the death penalty on one hand and the supremacy of the executive branch on the other? The answer can be found in the Solicitor General’s brief in support of certiorari in Medellin v. Texas.

Medellin is a case involving a Mexican national who was convicted of raping and murdering two teenage girls and sentenced to death by a Texas court. In his habeas petition, Medellin argued that his conviction should be overturned because he had not been informed of his right to contact the Mexican consul upon arrest, as guaranteed by the Vienna Convention on Consular Relations, to which the United States is a party. A federal court rejected his petition, but the International Court of Justice ruled, in a case involving Medellin and 50 other Mexicans, that the United States had violated the Convention. The ICJ also ruled that the United States was obligated to provide judicial review of the convictions to determine whether the violations prejudiced any of the defendants.

Enter President Bush, who took two steps. First, he withdrew from a part of the Convention requiring that disputes be resolved by the ICJ. (“We’re taking our ball and going home.”) Second, he determined that the U.S. would comply with the ICJ’s order by having state courts reconsider the 51 convictions. But Texas is having none of it. The Texas Court of Criminal Appeals ruled that Bush exceeded his powers by directing state courts to reconsider the convictions. Now, Medellin has appealed to the Supreme Court, and the Solicitor General has filed an amicus brief supporting his petition for certiorari.

The brief makes clear Bush’s disdain for the ICJ and his disagreement with its order. But it is mainly concerned with beating back Texas’ challenge to executive authority. In the process, it takes some interesting turns. For one thing, it asserts that when “the President acts pursuant to his authority under treaties of the United States, principles of federalism do not stand as an obstacle.” This is the orthodox view of the treaty power, articulated most famously by Justice Holmes in Missouri v. Holland. But it has been challenged by conservatives who argue that the Court’s recent federalism cases call Missouri into doubt. One might have expected the Bush Administration to sympathize with this argument. But its belief in executive supremacy apparently outweighs its concern for state sovereignty. This isn’t entirely surprising. Conservatives have brushed aside federalism in other cases, especially when dealing with state courts. See Bush v. Gore. The Bush Administration also clashed with states in the recent case of Massachusetts v. EPA. All of which shows that, for most people, federalism is a lot like judicial activism: a convenient rallying cry until it gets in your way.

Another line in the brief also caught my attention. In disputing the Texas court’s ruling, the Solicitor General invokes “the President’s unique role in foreign affairs, his statutory responsibilities, and his traditional authority in judicial proceedings implicating international law.” Come again. The brief cites Justice Jackson’s opinion in Youngstown for this proposition, preceded by Cf. But Jackson’s statement that the president’s power is at its height when he acts with the express or implied approval of Congress hardly supports this claim. One could argue that the Court should consider the president’s views when resolving cases that involve international law or foreign affairs. But that’s far different from arguing that the president has “traditional authority in judicial proceedings implicating international law.” The latter argument sounds like the claim of executive supremacy that the Court roundly rejected in the recent Guantanamo cases.

Logan Act follow-up

With little room to maneuver, a spokesman for President Bush, in response to a question, criticized Republican Congressman Darrell Issa for meeting with Bashar Assad a day after Nancy Pelosi did. This probably neutralizes the story as a partisan political issue, and may effectively end it as a news item, but readers interested in more on the Logan Act and congressional freelancing should check out the first comment on this post, which I've taken (with permission) from Georgetown Law Professor Marty Lederman's message to a constitutional law listserve.

Did Speaker Pelosi Violate the Logan Act?

Since my post earlier in the week about Speaker Pelosi's apparent conduct of foreign policy parallel to the President's, a number of commentators (including some who emailed me) have suggested that Pelosi not only acted improperly but illegally. Specifically, they suggest that she may have violated the Logan Act. It provides in relevant part:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Here I'll just note four issues:

1) There is zero chance that Pelosi will actually be prosecuted.

2) In the hypothetical world in which she were prosecuted, she could claim:

a) That as Speaker, she had "authority of the United States." (This strikes me as a weak argument because in matters of diplomatic relations, the executive branch is the relevant authority.)

b) Her intent was to influence Syria's conduct with respect to Israel, not the United States. (This strikes me as a good argument, because it appears to be true. Her trip was pre-blessed by Israeli PM Olmert. The Administration might claim that Pelosi's trip nonetheless was aimed to "defeat the measures of the United States," namely the measures aimed at isolating Syria, but could Pelosi be shown to have had the "intent" to do so? Perhaps. Her aim was in part to engage Syria, as recommended by the Hamilton/Baker report, which does sound like the opposite of isolating Syria.)

c) She was on a fact-finding mission. (Pelosi has said as much, and members of Congress are, as I noted in my last entry on this subject, entitled to go on fact-finding missions without the President's blessing. But if she was on a fact-finding mission that also included violations of the Logan Act, she would still be guilty.)

3) As the Speaker and others have noted, Republican members of Congress have also been to Syria, including this past week, without incurring the wrath of the Administration. One could, in theory, interpret the Administration's silence with respect to these other freelancers as amounting to a delegation of "authority" to them to conduct foreign policy, but that would be a strained reading of the statute in the interest of sustaining a selective prosecution. If it undermines official efforts of the U.S. to isolate Syria for a Democratic member of Congress to meet with Bashar Assad, then a meeting with a Repubican member of Congress has the same effect. There may be circumstances in which a President could legitimately authorize a member of his own party in Congress to conduct diplomacy on his behalf while withholding such authority from other members of Congress, but if that is to justify selective prosecution under the Logan Act, one would think that the authorization would have to come before the diplomacy.

4) Because no one has ever been convicted of violating the Logan Act, and no indictments have even issued in the last 200 years, any inferences about its meaning are necessarily speculative. See point 1 above.

Technology in Search of a Pedagogical Justification

Back in January, in a post about Cyberlaw I mentioned that my civil procedure exam last semester featured an extended hypothetical question based on a thinly disguised spoof of the interactive virtual world SecondLife. Shortly thereafter, a student pointed me to one of the strangest sites I've seen on the web, a series of screen shots of Judge Richard Posner giving a talk in SecondLife. But the strangest use of SecondLife by a legal professional has to be the following video from last year of Harvard Law Prof Charles Nesson, his avatar, and his daughter's avatar, showing just how cool (stoned? ) they are.



I can't tell from the video whether Nesson's journey to SecondLife was successful, but ventures like his and Posner's do suggest to me that we have reached the point where the technology outpaces our ability to use it productively. About 10 years ago, as an experiment in my constitutional law class, I included Powerpoint presentations in each of my lectures. I quickly discovered that the blackboard worked better. I suspect we'll come to the same conclusion about things like SecondLife soon enough.

(Of course, a blog is a COMPLETELY different story. That's an incredibly smart use of technology.)

Yale Flag Burners

As reported in yesterday's NY Times, early Tuesday morning, three Yale students were arrested for burning a flag hanging from a private home (not theirs). As of late Wednesday night, one of the students had been bailed out while the other two remained in jail pending the posting of bail. According to a story in the Yale student newspaper, a false rumor had been circulating around the Yale campus that the house belonged to Sen. Joe Lieberman.

The story nicely illustrates the inaccurate way in which we often speak about constitutional rights. We sometimes say that Texas v. Johnson establishes a constitutional right to burn a flag as a form of political protest. But that's clearly not true. The case merely establishes a right not to be penalized on account of the message one communicates if one burns a flag as a form of political protest. Thus, it stands as no obstacle to the charges that have been brought against the Yale students: arson, reckless endangerment, criminal mischief, and breach of the peace. Assuming that the students would have been charged exactly the same way for burning a towel with the intent to convey no message at all, the City of New Haven and the State of Connecticut have not in any way targeted expression.

To be sure, if the students can show that they are the victims of selective prosecution on account of their political message, then they'll have a good claim under the combination of Johnson and Yick Wo v. Hopkins (which is the standard citation for the proposition that discriminatory enforcement of a facially valid law is unconstitutional). But what are the odds that they can either demonstrate a pattern of leniency towards other public fire-setters or get a government official to say that the students were targeted because of their message?

It will be interesting to see whether the students or their lawyers nonetheless try to make a free speech argument. So far they don't even appear to be saying that they burned the flag as a political message, much less that this was the reason they were arrested. According to the Yale Daily story, upon their arrest, the students told the arresting officers that burning the flag "was a stupid thing to do." If they weren't going to shout "Death to America," they probably would have done better to lawyer up.

Devaluing Immigrant Families

On the heels of increasing discussion of whether its erstwhile (given his recent defeat in the first "money primary") presidential frontrunner is sufficiently conservative to win the Republican nomination [one, two], the erstwhile party of family values is apparently about to unveil its latest proposal for comprehensive immigration reform. While details remain unclear, reports indicate that the proposal -- which has White House support and whose Senate sponsors include at least two erstwhile opponents of comprehensive immigration reform, Senators John Cornyn of Texas and Jon Kyl of Arizona -- would limit family reunification in at least two respects. First, while the proposal would provide undocumented immigrants with an opportunity for legalization, it apparently would bar them from bringing family members with them [link]. Second, while the bill would increase the number of employment-based visas to accommodate future flows of immigrant workers, these increases apparently would be offset in part by eliminating the existing family-based visa category that permits immigrants to sponsor their siblings and adult children [link].

Immigrants' rights advocates and pro-immigration legislators have criticized the proposal:

“Family reunification has been an essential aspect of these policies,” Kennedy said last week. “Many of those who are brought in, in terms of families, have become actively involved. They open small stores, play a significant role in the economy. The families and the importance of family unity are extremely important.” [link]

“This set of principles is a nonstarter – they don’t work,” said [Asian American Justice Center] President and Executive Director Karen K. Narasaki. “They don’t address the underlying problems leading to undocumented immigration – and, in fact, the policies would actually exacerbate the problems. They offer only false promises to the undocumented already here. And they are very anti-family.” [link]

As these advocates suggest, the White House/GOP Senators' proposal might legitimately be understood as a significant anti-family shift in the current reform debate. However, what might easily be lost in this discussion is the extent to which the proposal might also be understood as simply the continuation of a trend, for the immigration policies enacted in the last decade -- especially the legislation signed into law by President Clinton in 1996 -- already have devalued immigrant families to a significant extent. Ten years later, one doesn't have to look very hard to find stories of families devastated by the vast expansion of deportation grounds to encompass minor crimes and the elimination of opportunities for many long-time residents to seek individualized, discretionary relief from deportation. (I'll nevertheless help with that search by providing a couple: click "play" on the audio link above for the story of Aarti Shahani and her family, also downloadable here from Breakthrough, and see this link for the story of 82-year-old Gurdev Gill. Only two stories among many, many others.)

With the proliferation of such stories, one might think that one has heard every possible permutation. And yet, yesterday (thanks, Naina), a remarkable recent case caught my attention:

Samuel Jonathan Schultz was born in India and adopted at age 3 by a Utah woman. His adopted mother apparently failed to complete his application for US citizenship upon his arrival to the US.

As a teenager, Schultz got in trouble with the law on numerous occasions. At the age of 18, he was arrested for driving a stolen vehicle (he claims that his friend stole the car and that he was simply on his way to return it). A year later, he was convicted again for car theft. [link]

Schultz also "has a juvenile record of theft offenses and engaged in altercations as a teen with his stepfather that occasionally required police intervention." [link] Apparently ineligible for discretionary relief on account of his criminal history, he has sought asylum on the ground that, as a Mormon, he might face persecution in India, and in an unpublished opinion the Tenth Circuit recently affirmed the denial of his asylum claim, also on account of on his criminal record. Let's leave the merits of the asylum issue to one side for now -- although I wouldn't too quickly or categorically dismiss the notion that Christians might face persecution in India, either, at least in some circumstances. At the heart of this case is not Schultz's asylum claim, but rather the question of what justifies either his deportation or the blanket denial of any opportunity to seek discretionary relief from deportation at all. Since Schultz is an adoptee, presumably all of his family ties are here in the United States. Indeed, Schultz's criminal record itself is entirely "homegrown" in the United States, since he has had no meaningful ties to his country of origin since the age of three.

Schultz's case is only a particularly extreme illustration of the harsh immigration consequences that countless others have faced since 1996. At one point, concerns over such extreme outcomes led a bipartisan group of legislators -- including some of the very architects of the 1996 legislation themselves -- to conclude that those laws had gone too far and should be scaled back. Such proposals have been notably absent in the post-2001 debates over immigration reform. However, Congressman José Serrano recently has proposed legislation in that spirit. Serrano's bill, the Child Citizen Protection Act, would restore discretionary authority for immigration judges to waive deportation of parents of U.S. citizen children if the IJ concludes that deportation is "clearly against the best interests of the child." Serrano's proposal is a limited one. It wouldn't help Schultz and many others facing overly punitive consequences of the 1996 laws. But the bill could provide a starting point for a rather different kind of public conversation than the one we've been having for the past several years about who we are deporting and why.

When he was still mayor here in New York, the erstwhile GOP frontrunner was a vocal advocate on behalf of immigrant communities in several respects. Now that he has presidential ambitions, and both a GOP base and Tom Tancredo to contend with, it will be interesting to see whether he will remain a strong advocate for immigrant families in the current reform debates or will instead "flip flop" and become merely another erstwhile pro-immigrant voice.