Friday, August 31, 2007

Give Bloomberg an A for Effort and an F for Research

Mike Bloomberg was on NPR this past week touting his plan to pay poor people (from private funds) to go to the library, get good grades, etc. (Listen here and also hear Steven Inskeep ask Bloomberg whether he's running for President about a half dozen times. Bloomberg says no each time.)

Traditional liberals have been cool to Bloomberg's proposal, arguing that it insults poor people. (See Diane Ravitch's reaction here.) But Bloomberg has three reasonable responses: 1) This is a capitalist society in which people respond to incentives; 2) If it's not insulting to pay wealthy agribusinesses not to grow crops, it shouldn't be insulting to pay poor kids to go to the library; and 3) It's just a pilot program so let's see if it works.

I'm all for experiments and thinking outside the box, but the problem here is that we have tons of evidence that paying people to do things usually undermines their intrinsic motivation to do those things. Translation: Give a kid $50 to go to the library and he'll go each time you give him another $50, but won't go just for the joy of reading.

It's possible to get around this effect: Perhaps the idea is that the kid gets $50 the first time simply to go somewhere he wouldn't otherwise go, then gets there, looks around and says "omygod, this library is the most totally awesome place in the freakin' world. i'm gonna borrow the complete works of Proust." Aha.

Given the wealth of empirical evidence on extrinsic versus intrinsic motivation, it's a little odd that Bloomberg concocted this plan. Perhaps he hasn't seen the studies. Maybe he needs to go check them out of the library. I wonder how big a check it would take to motivate him to do so.

Thursday, August 30, 2007

Okay, now I feel bad for Larry Craig

CNN has posted the transcript of the police interview with Sen. Craig following his arrest (link here). Craig tries valiantly to portray it all as an innocent misunderstanding. He's "a wide guy" so when he sat on the toilet seat his foot bumped the foot of the undercover cop in the next stall. His hand may have come under the stall when he reached to pick up a piece of toilet paper that fell. See?

Meanwhile, the cop isn't buying it because, well, he was there, and what he saw was not ambiguous. So much so that he accuses Craig of lying: "I'm just disappointed in you sir. . . . I mean, people vote for you."

Where to begin? Well, for one thing, Larry Craig represents Idaho, not the 4th District of Massachusetts, and so news that Craig has gay sex would make people STOP voting for him, so of course he's going to lie to you, Offiicer Karsnia. Unless, that is, Craig thought that the story would never get out. And while Karsnia assured Craig that " I don't call media, I don't do any of that type of crap," obviously somebody told the media something eventually, so Craig was not mistaken to be concerned.

Karsnia suggests that whatever embarrassment Craig feels for the solicitation, the real issue is the lying. But here, as with Bill Clinton, I'm inclined to disagree. The sex lives of Presidents and Senators---so long as they involve consenting adults---really should be private, and when their privacy is invaded, it's understandable even if not exactly noble for them to lie about it.

Now in Craig's case we have the added complication that the sexual act he was likely attempting to accomplish wasn't exactly private, in that it would have occurred in a public restroom. (Caveat: Maybe not? As one comment on my post yesterday noted, we only know that the solicitation occurred in a public restroom. Perhaps the tryst would have been scheduled in a hotel room. If so, it's hard to see what the crime is, because states can't make it a crime for adults to agree in a public place to have sex in a private place.) But even if that's not entirely a victimless crime, the only victims are the other users of the restroom, and their injuries are not even clear.

No doubt this story has legs because Craig, like some other high-ranking government officials before him, may be a closeted gay man who passes for straight by, among other things, pursuing anti-gay policies (e.g., voting for the Defense of Marriage Act). Does that make him a hypocrite? Sure. But he should be criticized for supporting the anti-gay policies, not for being gay (or bi or on the down-low or whatever). I understand the argument that it's appropriate to out people like Craig to expose their hypocrisy. I just think that the strategy is unfair and potentially counter-productive, as it takes as given that embarrassment is an appropriate reaction of people like Craig to being suspected of being gay.

Ironies in Immigrant Ireland

On Tuesday, the BBC Asian Network's Sonia Deol conducted a remarkable interview with Leo Varadkar, an opposition member of the Irish parliament, on the recent decision by the Garda Síochána, the Irish national police, to ban a Sikh trainee from wearing his turban while on duty [audio available here until next week; fast forward approx 2 hrs for the interview]. Ireland, which for a long time had been a country of tremendous emigration, has experienced remarkable changes in its migration patterns in recent years, especially as economic growth has created a significant demand for migrant labor. In 1996, Ireland became a country of net immigration for the first time, the last European Union member state to do so. Perhaps unsurprisingly, the road has not been without its bumps -- as in other countries, including the United States, increased immigration has led to both anxiety and confusion among some native-born Irish citizens over the pace and extent of change.

Nevertheless, faced with these dramatic demographic shifts and a perceived need to increase the size and diversity of the force, Irish police officials have moved proactively in recent years to broaden their recruitment efforts -- even to the point of amending the service's eligibility criteria to permit non-Irish citizens to join the force. In the context of these recruitment efforts, the turban ban seems somewhat surprising. Irish officials don't appear to make any operational claim that wearing turbans would hinder officers' ability to perform their duties. Rather, they have defended the decision by stating that the Garda Síochána "historically [has] been seen as providing an impartial police service, policing all sections of society equally," and that "accommodating variations to our standard uniform and dress, including those with religious symbolism, may well affect that traditional stance and give an image of an Garda Siochana which . . . the public would not want." [link] As Varadkar put it in his interview:

VARADKAR: [At] the foundation of the Irish police force, 80 years ago, when Ireland . . . was born out of a sectarian conflict between Catholics and Protestants, a decision was made at that time to require anyone who was going to be a police officer or a member of the army to leave their religion and political affiliations at home . . . .

Perhaps this isn't an entirely unreasonable starting point for a public conversation about the issue, assuming that the commitment to secularism is sincere and not selective. However, as Deol pointed out, there probably weren't more than a handful of Sikhs, at the very most, in Ireland at all 80 years ago, so it also seems perfectly reasonable to revisit the issue in light of the changing demographics that contemporary Irish society has encouraged. And of course, the impact of this rule on Sikhs is disproportionately severe. If Sikhs were prohibited from wearing turbans while on duty, it would not simply require them to "leave their religion at home," but rather would force many Sikhs in effect to abandon altogether a central tenet of their faith if they wished to serve in the police, a fact that Varadkar seemed unable to acknowledge openly and directly:

DEOL: How do you get Sikhs into the Irish police force if you're asking them to remove their turbans?

VARADKAR: The same way you get Catholics, Christians, Jews, and Muslims to do so, by asking them, when they go to work, to leave their religion at home. . . . There's space for your faith, in your private time, but when you're their to be a police officer, you're expected to wear a uniform and follow a set of rules . . . . This isn't an anti-Sikh thing, there's no ban on the turban as such, it's just that there's a uniform, and there's no reason to change it.

From there, Deol's interview with Varadkar only became more revealing. Varadakar proceeded to invoke the slippery slope:

VARADKAR: [I]f we were to let people wear turbans, would we then have to do the same thing with hajeebs or other religious clothing? We don't particularly want to go down that route.

DEOL: I think the word is "hijabs," but don't worry about it. . . .

And as it turns out, even multiculturalism "in the home" isn't completely safe on Varadkar's view of the world:

Leicestershire Police Recruitment BrochureDEOL: What difference would it make -- you have Sikh officers wearing turbans in England and Wales, and it doesn't affect how they do their job, so what is the logic in it in Ireland now, today? How would it affect a police officer doing his job, which has got to be important as well? . . . .

VARADKAR: . . . They may not be seen as . . . an ordinary agent of the state. . . . That would be a risk. But, you know, I think that in England, maybe you've got a different model, . . . very much a kind of multicultural model, where you have people, even second and third generation, who are still living in England as if they were living in the country their grandparents came from. In Ireland, we're going for a very different model of immigration and a very different model of society, where already 10 or 12 percent of our population are immigrants or come from immigrant backgrounds, similar to Britain, but . . . we've decided not to go down the British route.

DEOL: What do you mean by that?

VARADKAR: Well, for example, in Britain, it's not unusual for people who may be second or third generation immigrants and still at home speak the language of their grandparents, or to be schooled separately, or really not to be properly and fully integrated into British or English society. . . . We're doing something very different in Ireland. We're following what we call the Republican model, which perhaps is similar to the United States, where we have a "melting pot" really. So when immigrant communities come to Ireland we want them to mix in, and mix in fully -- and to adapt their cultural traditions to the native culture. . . .

Essentially what we've seen is [that] the model that has happened in Britain in particular [has been] an unsuccessful model of immigration, where people live in separate communities and separate spheres and have separate aspirations, and we don't want that. We want to have one nation, and we want to stay as one nation. . . . That doesn't mean that you have to convert religions by any means, but it does mean that where you have a secular police force, like we do, that you're prepared to accept that.

Maybe Varadkar is afraid that if the Irish allow second and third generation Sikhs to speak with their grandparents at home in Hindi or Punjabi, and then let them wear turbans on duty as police officers, it only will be a matter of time before some Irish police officer will approach him and shout, "Tumhe pulis ne charon taraf se gher liya hi, Varadkar! Ab tum apne aap ko pulis ke hawale kardo! Bhaag ne ki koshish mat karna!" Before leading a public prayer and a procession to the nearest gurdwara at taxpayer expense.

Varadkar's characterization of British multiculturalism seems a distortion; his understanding of the United States is certainly off the mark. Ireland is a latecomer to the debate over Sikhs wearing turbans in the police and military, which is hardly surprising since Sikhs still number less than 1,500 individuals in a total Irish population of approximately 4 million. But several countries in addition to India and Pakistan -- including the United States, Britain, Canada, Singapore, and Malaysia -- have already confronted the issue of accommodating Sikhs' turbans in their police uniforms and, in varying degrees, have permitted turbans to be worn on duty without any operational difficulties. For example, in Canada, the Mounties changed their rules to accommodate Sikhs in 1990. Here in New York, the NYPD changed its practices in 2004, following a lawsuit by a Sikh officer that garnered amicus support from then-Attorney General Eliot Spitzer.

It seems ironic that resistance to making such modest accommodations for Sikhs' religious practices would be happening in Ireland, given the intense hostility and discrimination that large numbers of Irish migrants historically experienced in the United States and Britain. The 19th century American experience with nativism against Irish Catholics is well-known. (Notably, an important aspect of the integration process for 19th century Irish immigrants involved their employment in urban police forces.) And it was not anywhere near that long ago that signs could be found in British establishments reading "no dogs, no blacks, no Irish."

Oh, and did I neglect to mention this? Leo Varadkar -- whose political party appears to agree that the Garda Síochána "must reflect the diversity of modern Ireland" and recruit individuals from "communities that are currently poorly represented or lack visibility within the Gardaí," such as immigrants -- is of Indian descent on his father's side.

Wednesday, August 29, 2007

What is the state interest in forbidding public restroom sex?

Idaho Senator Larry Craig's insistence that he is "not gay," despite having pleaded guilty to disorderly conduct for soliciting sex from an undercover cop in the Minnesota Airport was for me an occasion not only for sadness---saying what it does about the persistence of the closet---but also nostalgia.

First, of course, one wonders whether Craig's choice of words reflects a Clintonian precision. Does it depend on what the meaning of "gay" is? If Craig likes to engage in anonymous gay sex but otherwise leads his life as a heterosexual, then perhaps he's right that he's "not gay." Perhaps he's bi. Or simply on the down-low.

The incident also recalled for me an even odder occurrence. When I was an undergraduate at Harvard in the mid-80s, I would sometimes notice graffiti in the stalls of the men's room in the Science Center basement urging patrons to, uhm, engage in sexual acts. Then, one day a story appeared in one of the student papers explaining that this particular restroom was a world-renowned pickup spot for anonymous gay sex. The university responded by, get this, removing the doors from the stalls. The dean of students at the time explained that this was "the standard solution." Whether or not this was true, the result was predictable: the sex in the restrooms ceased but almost no one used the stalls for their intended purpose either.

From the reports on the Craig story, it appears that the "standard solution" has been replaced by or supplemented with a new approach to this problem: undercover police soliciting sex. It is not obvious that this strategy will work. After all, it has been quite ineffective against the drug trade.

But talk of the best way to combat public restroom sex raises a different question: What is the legitimate state interest in forbidding this activity in the first place? I don't mean that as a question of constitutional law. Whatever constitutional protection there is for anonymous sex, surely the state can forbid it in public. Nonetheless, the question lingers as a policy matter.

Obviously, one reason to forbid restroom sex is that it can tie up the stalls. This seems an insufficient explanation, however. I doubt there's a good empirical study (okay, I doubt there's any empirical study) of the question, but it wouldn't surprise me to learn that anonymous restroom sex is a relatively quick affair, substantially quicker than, say, reading the newspaper, an activity that can also tie up the stalls.

Another justification for the prohibition might be to protect people from being grossed out. To my knowledge, I've never been in a public restroom in which sex was occurring in one of the stalls, but I imagine that if I did hear the telltale sounds of sex (whether gay, straight or other) I'd be at least a bit alarmed. But would that fear rational? Isn't it more likely that the participants would be more scared of being discovered? (This recalls the age-old advice given to scared children: Don't worry, I'm sure the bug is more afraid of you than you are of him.)

As this excellent (if catty) entry on the Huffington Post notes, out gay men are unlikely to resort to restrooms for sex. This is a venue more likely to be favored by the closeted. So efforts to shut down restroom sex don't exactly have a disparate impact on gay men as such, but there is nonetheless something vaguely unfair about such efforts.

Tuesday, August 28, 2007

Habeas Corpus and the Bears in Yellowstone

In my latest FindLaw column, I highlight some of the most egregious sins of Alberto Gonzales, including an extended discussion of his claim, in testimony before the Senate Judiciary Committee in January, that the Suspension Clause does not protect a right of habeas corpus; it only says that Congress can't suspend it. As I note in the column, ludicrous as this sounds, it's the position staked out by Justice Scalia (for himself, Rehnquist and Thomas) in INS v. St. Cyr. In the column, I explain why a Supreme Court dissent is not exactly good authority for an Attorney General professing to say what the law is (as opposed to what his administration thinks it ought to be). Here I want to see if any sense can be made of the Scalia view.

I'll begin by putting aside Scalia's historical and doctrinal arguments (except to say that I think he overreads Ex Parte Bollman). The textual argument (made by both Scalia and Gonzales) strikes me as especially weak. Although it is logically correct to say that a prohibition on suspending something doesn't guarantee that that something must exist, it certainly is a common sense inference that if X can't be suspended, X must therefore exist.

So let's turn to the normative argument. Scalia says:

It is no more irrational to guard against the common and well known "suspension" abuse, without guaranteeing any particular habeas right that enjoys immunity from suspension, than it is, in the Equal Protection Clause, to guard against unequal application of the laws, without guaranteeing any particular law which enjoys that protection. And it is no more acceptable for this Court to write a habeas law, in order that the Suspension Clause might have some effect, than it would be for this Court to write other laws, in order that the Equal Protection Clause might have some effect.
The analogy Scalia draws to equal protection doesn't work. It is perfectly understandable for members of group X (women, say) to feel wronged when members of group Y (men, say) get some benefit that they are denied, even if the X's would not be injured by the denial of the benefit to everybody. That is simply what we mean when we ascribe normative content to equality.

But is it ever the case that people are worse off when some benefit (I don't say "right" to avoid begging the question) is denied to them temporarily than they would be if it were to be denied to them permanently? I suppose we can imagine that people might become "addicted" to the benefit if it were granted, then taken away, then re-granted, and so forth, so that they'd be better off never receiving the benefit. So if the American people were like the bears in Yellowstone National Park and habeas corpus were like food, Scalia could say that a temporary suspension is worse than a permanent abolition because in the latter case we don't come to depend on habeas, only to have it snatched away. This is a ridiculous analogy, however, and Scalia does not make it at this level. Instead, he simply asserts that protection against suspension is like the requirement of equal protection, even though it plainly is not.

Moreover, there is a further, to my mind independently fatal, difficulty with the Gonzales/Scalia view that Congress can "permanently" abolish habeas (for some class of cases) without implicating the Suspension Clause: As I say in the column, there is no such thing as "permanent" legislation. Congress can "permanently" abolish habeas one day, and then "permanently" restore it the next. So the answer to the question of whether any sense can be made of the Gonzales/Scalia view is no.

Monday, August 27, 2007

Dragged Through The Mud

In my FindLaw column on Wednesday, I'll take a look at the sins of AG Gonzales, but here I want to focus briefly on President Bush's claim that Gonzales had his "good name . . . dragged through the mud for political reasons." I want to float an odd theory: BUSH ACTUALLY BELIEVES THIS.

Let's put aside the fact that the claim makes no sense. Why did Democrats (never mind Republicans) decide to drag the Gonzales name through the mud? If politics were the reason, wouldn't they have made similar claims about all Bush appointees? Why haven't they dragged the good names of Condi Rice, Henry Paulson and Dirk Kempthorne through the mud?

That sort of analysis is just far too reality-based. Here is how Bush intuits the matter:
1) Alberto is a loyal buddy;
2) People in Congress are saying nasty things about Alberto;
3) Therefore, the people saying the nasty things must have base motives, like politics.

This theory explains how it was that after one of the most dismal of a string of dismal performances before Congress, the President was able to say that he thought Gonzales did an excellent job of answering questions. Bush probably didn't watch any footage or read a transcript of the testimony. (In No End in Sight, Bush is accused by someone who should know of not even reading the executive summary of national intelligence documents, so why would he waste time watching or reading about Senators bloviating?) As Stephen Colbert would say, Bush just knew with his gut that Gonzales would have done a fine job of standing up to those jabbering legislators. Therefore he did.

Alberto Gonzales Resigns to Spend More Time With Karl Rove's Family

That's what I would write if I wrote for The Onion. But I don't.

Of Law, Norms and Orbs

In the 1990s, a barrage of legal scholarship on “norms” was sparked by the work of Robert Ellickson (especially his book Order Without Law). Much social behavior---including compliance with rules---Ellickson and others argued, occurs because of the development of social norms that have force beyond any formal enforcement mechanism. Numerous symposia were held and countless forests felled to produce the paper for the articles written.

No doubt the norms scholars were (and are) onto something important: Fear of social opprobrium or desire for social approval are powerful motivators, and in an important sense one can view the norms craze as of a piece with the roughly contemporaneous emergence of behavioral law & economics. Both scholarly movements challenged the view of human beings as rational calculators motivated only by the promise of reward or punishment (although it is possible to conceive of norms as acting as a kind of social reward and punishment that can then be fitted into a utility function: that’s the “beauty” of conventional economics; it can assimilate anything).

Here I want to highlight another way in which the focus on formal legal penalties and rewards overlooks a means of affecting behavior. If norms operate socially, orbs operate individually (or mostly so, anyway. More on that point below.) Orbs?” you say. “What, pray tell, are orbs?”

In the movie Sleeper, Woody Allen’s character awakes in a future in which the orb is a pleasure-giving device, but I have something else in mind. In particular, the ambient orb is a glass ball that glows in different colors depending on the data it is fed. Originally used mostly to monitor stock portfolios, it has recently been adapted to monitor energy use. As detailed in this story by Clive Thompson in Wired Magazine, people who monitor their energy use with an orb substantially decrease their use.

To be sure, there is a selection bias here. The sort of person who buys an energy-use-monitoring orb is much more likely to be interested in energy conservation than the average Joe. It’s hard to imagine Dick Cheney installing orbs in the OEOB---unless they’re programmed to monitor something else. Insert Dick Cheney joke here.

But that may just be the point. Thompson argues that most people would actually reduce their energy use if made aware of it ambiently, and he notes that data can be networked to take advantage of social pressure. More broadly, one can imagine all sorts of other public-regarding uses for ambient information. Suppose that your dashboard changed color as you drove successively faster (with wireless info telling the car what the posted speed limit is). Or imagine the power of public pressure if point sources glowed with pollution emitted. And that’s to say nothing of the public health benefits of orbs that glow for calories consumed or cigarettes smoked.

Consider this the opening salvo in the coming wave of orb-based legal scholarship!

Friday, August 24, 2007


My colleague Tim Wu and University of Colorado Prof Paul Ohm have launched a beta version of Altlaw, a free searchable database of recent (last 5-15 years) decisions by the US Supreme Court and the federal courts of appeals. The site fills an important gap: No other free site permits you to do full-text searches of multiple circuit courts simultaneously. That's a huge improvement over other portals out there (including my masters at FindLaw.) As Tim acknowledges in this post, Altlaw still has limited coverage, but it's a start. When it's out of beta, Altlaw will be better still. I have two gripes I'll air, one directed at the site, the other at my government.

First, as to the site, I wish that Tim and Paul had chosen a different name. As they are no doubt aware, on the net, the prefix "alt" often connotes something kinky, if not downright illegal. True, "alt" also connotes a commitment to open-source-anti-establishmentarianism, but the target audience for Altlaw is Jane and Joe Public, not your typical hipster tech geek.

Second, my main gripe: Why on Earth isn't something like this---but with coverage going back to the landing of the Mayflower---being provided by the government? The Library of Congress provides us with Thomas, a brilliant resource for legislative materials, but for the judicial branch, we're stuck with incomplete and spotty decentralized websites on a circuit-by-circuit basis. Even the Supreme Court's website only goes back to 1991.

Altlaw is useful and will become more so, but there is no excuse for the government's failure to provide these materials in a user-friendly format---or at least to contract out to some firm (West, Lexis, Ohm & Wu, whatever) to do so. Obviously, West and Lexis have a vested interest in preventing good free access, but that hardly counts as an argument. To the extent that prior government contracts prevent the government from making all judicial materials available freely searchable and downloadable, those contracts should be bought out.

Thursday, August 23, 2007

Churches as Sanctuaries (Part II)

Earlier this summer, I wrote about a movement by several religious congregations around the country to offer sanctuary to illegal immigrants who face deportation. At the time, a question had arisen about the government’s authority to make arrests on religious property, and I argued that there was no constitutional or statutory obstacle to doing so. It was unclear, however, whether the government would actually send officers into churches, mosques, and temples for this purpose.

We may now have the answer. An article in the Times this week reports that federal agents recently arrested Elvira Arellano, an illegal immigrant and outspoken advocate of immigration reform who spent the last year in a Chicago church that had offered her sanctuary. But Arellano was not arrested at the church. She was arrested a few blocks away from another church in Los Angeles where she had just given a speech about the effects of deportation on immigrant families. Sadly, she was with her 8-year old son who is an American citizen and remained behind when she was sent back to Mexico.

An immigration official declined to explain why Arellano was not arrested earlier, but the Times reports that “immigration agents generally do not make arrests on religious property.” If true, this raises another question: Does the government’s decision not to make arrests on church property favor religion in such a way as to violate the Establishment Clause? I think the answer is no. The Establishment Clause prohibits government from endorsing or funding religion, but it does not generally prohibit government from accommodating religious exercise. For instance, the Supreme Court recently held that the Establishment Clause was not violated by a federal law protecting the ability of prison inmates to worship as they please. True, harboring fugitives is not exactly religious exercise. But the government could plausibly argue that it is simply respecting the ability of congregants to worship without fear of disturbance. And then, of course, it can arrest them as they drive away.

Wednesday, August 22, 2007

Sincerity and Poverty

[I am posting here an entry written by Tam Ho, a former student of mine who offers a refutation of the claims that John Edwards is a hypocrite whose stated concern for the poor is undermined by his rich lifestyle. -- Neil H. Buchanan]

As noted on several occasions in recent months, here, here, and here, hypocrisy is often used to attack one’s credibility. In a recent article in The Atlantic, “The Poverty Candidates,” Bill Schneider asks whether John Edwards “looks like a hypocrite because he got a $400 haircut and built a 28,000-square-foot mansion.” The question I want to explore is whether this attack has a valid substantive argument behind it, or if it is simply an ad hominem attack: one that seeks to refute a position by assaulting the character of the speaker.

Schneider reports that Edwards responds, “Not really . . . because he was not born to wealth and privilege: ‘I come from a fairly modest beginning, but I've lived the American Dream.’” As I indicate below, Edwards gives other responses that I do think are better (which Schneider fails to report), but I want to discuss first why this response seems strange to me. Edwards’s reliance on “com[ing] from a fairly modest beginning” seems to imply that someone from a privileged background cannot take up the anti-poverty cause without being a hypocrite unless he renounces his wealth. This seems wrong; we don't think that doctors who have never been seriously sick and who treat AIDS patients are hypocrites for taking measures to avoid contracting HIV (i.e., for not renouncing their history of good health), or that radiologists working on cancer patients are hypocrites for wearing lead vests to shield themselves from x-ray radiation.

Perhaps the distinction here, though, is that being HIV- and cancer-free are necessities, not luxuries. But a 28,000-sq-ft mansion and a $400 haircut, the argument may go, are sinfully excessive in light of the fact that people live in poverty, and so someone who indulges in the former cannot possibly be serious about having a lifelong mission to eradicate the latter. But consider the hypothetical of a billionaire philanthropist who's donated billions to fighting world hunger. Is he a hypocrite if he has three industrial kitchens in his mansion and a personal team of professional chefs? No. But this analogy isn't perfect, either, because the billionaire's sincerity is demonstrated independent of his saying so (i.e., by his philanthropy), whereas Edwards has not given a significant portion of his wealth away (as far as I know). I can buy that distinction, too.

Let’s consider, then, the argument, as I can best make it out:

(1) Edwards claims to want to end poverty in
(2) Edwards enjoys the excesses of wealth.
(3) A desire to end poverty must be motivated by sympathy for the poor.
(4) Someone sympathetic to the poor would feel guilty about spending money so excessively; or, alternatively, someone who is sympathetic to the poor would feel guilty about wasting money (this is the old "finish your food; there are kids starving in
Ethiopia" argument).
(5) Someone who feels guilty about doing something would not do that thing.
(6) Therefore, Edwards's mansion and haircut demonstrates that he doesn't feel guilty about it, which demonstrates that he doesn't care about the poor, which demonstrates that he doesn't desire to end poverty.

Conclusion: Edwards is a hypocrite. Q.E.D.

If this is the argument, then Edwards's statement seems not to engage it. Edwards’s argument is that his sympathy for the poor is genuine because he grew up modestly and knows what it's like to be poor. This counterargument does not engage the argument above because one can still apply the syllogism of (4) and (5) to refute Edwards’s conclusion that he is sympathetic to the poor. More importantly, though, Edwards’s counterargument seems weak even on its own terms, because it’s highly plausible that people's attitudes change with their circumstances and their allegiances are susceptible to realignment. His opponents could retort, "Whatever your roots were, Senator, you are certainly no longer in touch with them." It would seem difficult for him to furnish a response to demonstrate that he is still in touch. (What would he say? "That's not true. I still have to put on my pants one leg at a time?") By conceding the tacit assumption that one's belief hinges on personal identity and circumstances, I think he gives up the game. (And as a matter of human psychology, reliance on circumstances and background as a determinative factor for establishing the sincerity of one’s views seems weak, for similar reasons to Mike Dorf's argument here last week that a precedent’s age, by itself, is no reason either to uphold or overturn it; witness, for example, that John Rawls was born into privilege, whereas Robert Nozick came from a poor family, contrary to what one might expect, given their positions on distributive justice.)

Two alternative lines of reasoning seem more logically tenable to me: either deny premise (4) or deny premise (5). As I alluded to above, Edwards in fact does both (though his denials are not reported by Schneider).

The denial of premise (4) is that one can be genuinely sympathetic to the plight of the impoverished without feeling guilty about spending money on luxuries for oneself. As reported in a recent AP article, Edwards makes this argument when he says that people want to come to America " because people like me can come from nowhere, the son of a mill worker ... and now be running for the president of the United States and pay $400 for a haircut." That is, he shouldn’t be embarrassed about his excesses because the ability to get to a point where such excesses are possible, from a starting point of zero, is the very thing that makes this country great. So there is no contradiction in caring about poverty but not feeling guilty about excessive spending.

Indeed, the billionaire philanthropist hypo demonstrates this point. The distinction making that analogy useless for Edwards’s purposes is not a metaphysical one, but an epistemological one. Edwards can’t use that hypo not because it has a disanalogy in principle, but because it doesn’t help him prove his case. It’s an evidentiary flaw.

The denial of premise (5) is that one can feel guilty about something but still do it, just as one can know that smoking is bad for one’s health, genuinely desire to have good health, but still smoke. Edwards also makes a form of this argument. As the AP article reports, he says that he is “actually embarrassed by it” but that it “doesn’t change who I am, what I believe in,” citing to his record of “standing up for people who have no voice.” That is, he felt guilty about it, but still did it, but it shouldn’t bring into question his sincerity.

But Edwards does not assert an all-out denial of premise (4) or (5). Instead, he still maintains that “[h]opefully, [he’ll] have enough sense not to [get a $400 hair cut] again.” But as matter of pure reason, it is far more logical to counter the argument by denying premise (4) and/or (5), and it wouldn’t require a promise not to do it again. After all, that is not a promise he can extend to his mansion. But that leaves Edwards in a hard place because even if he bought the logic of my argument, it wouldn’t be politically viable for him to assert it unabashedly.

There are two great ironies in this. The first irony is that even though Americans are all too personally well-acquainted with guilty pleasures, especially in the realm of materialistic consumption (and I include myself in that indictment), we are apparently unwilling to accept that excuse when it comes to others. The second irony is that many of those who have seized upon this opportunity to label Edwards a hypocrite, essentially because of his wealth, are the same ones who oppose policies that limit the accumulation of wealth because they think that obscene concentrations at the top help those at the bottom. Some might even call that hypocritical.

Monday, August 20, 2007

An Ominous Development

No, I'm not talking about anything terrorism-related, but the news that the law firm of Ford & Harrison (not to be confused with actor who portrayed Han Solo and Indiana Jones) will no longer bill clients for most of the time spent by first-year associates.

According to this National Law Journal story, the F&H decision was driven by the firm's recognition that focusing on billables for first-year associates meant skimping on training. Instead of doing document review of the sort that could be done as well or better by paralegals (for a fraction of the cost to the client), new associates will spend the bulk of their time observing depositions, witness interviews, strategy sessions, etc. That sounds like good for new associates, so why do I say this is an ominous development?

Because it underscores the fact that young lawyers leave law school unprepared for much of the practical work that firm lawyers do. If the F&H model catches on, terrific, but if it doesn't, it may only lead to calls from other firms for us law profs to pay more attention to skills training---important work to be sure, but a task which we pointy-heads (clinical profs excepted) have neither aptitude nor interest.

And yes, I'm still on vacation. I had a few minutes of downtime.

Friday, August 17, 2007

No Style, No Substance

Back in May, I wrote about some of Rudolph Giuliani's views on taxes and spending, concluding that his statements on this area of public policy are a combination of revisionist history and simple-minded small government happy talk that distinguishes him from none of his competitors. Three months later, it is completely obvious that Giuliani really is, as many (including Mike on this blog) have noted, simply running to be "President of 9/11."

As I suggested in my earlier post, though, even this makes no sense. Giuliani's supposed demonstrated strength -- even when taken at face value -- is simply not a qualification to be president. He actually has not shown any qualifications to fight terrorism but only to deal with its aftermath, which makes him a candidate for FEMA chief, but not for chief executive.

Earlier this week in the New York Times, a news article about Giuliani ran under the headline: "Giuliani, Substance Firm, Struggles to Secure Style." (By Marc Santora, Aug. 12, 2007) The article claimed that Giuliani's substance is strong but that he's yet to find a comfortable style. Regarding Giuliani's lack of style, I have nothing to add. On substance, I continue to be at a loss.

From the article: "The ideological base of Mr. Giuliani's campaign for president has, by now, come into fairly sharp relief: terrorism and small government." Admittedly, this is potentially more substantive than "new ideas" or other vacant slogans of campaigns past, but actually not by much. As I noted above, "small government" for Giuliani is itself merely a slogan that he has not filled out with anything other than being against taxes and spending. His most ardent admirers, I suspect, might even admit as much. But, they would almost surely say, the real substance is on terrorism.

Why is that his real substance? What has he actually said about his plans to fight terrorism that make him uniquely stand out as the anti-terrorism candidate? In case any readers have been under a rock for the past six years, Giuliani claims the mantle of anti-terrorism because of his leadership of New York City in the Fall of 2001. At best, though, that makes him a crisis manager, not an expert on anti-terrorism.

As an analogy, suppose that you were on a bus that was in a horrible crash. An emergency medical team arrives that is led by a guy who stands in front of the camera and makes people (including you) feel like it's all going to be OK. As impressed as you might be, why would you think that you should hire that guy to be your new bus driver?

Of course, Giuliani is currently getting himself in trouble for over-playing his hand on his supposed heroics post-9/11. Even his strength might not be so strong. His ties to corruption (see Bernard Kerik) will not help, either. The point here, though, is that even Giuliani's strongest suit, when taken at face value, does not add up to an argument to be president.

One further thought. This is not a matter of my not being able to see "that certain something" that others see in a candidate. It is true that I simply don't see the supposed "boyish charm" of George W. Bush, and I never saw Reagan's supposed likability. On the other side of the aisle, I still don't see why Democrats like Bill Clinton so much. The issue with Giuliani, by contrast, is not a matter of either seeing or being blind to some personal trait that may or may not get him elected. This, as the Times headline insists, is about substance. And there is no there there.

Thursday, August 16, 2007

Dorf on Vacation

I'll be on vacation until Monday August 27, and taking a break from blogging. Some of my co-bloggers may post between now and then. Look for me to resume roughly daily postings on the 27th.

Drug Courier Profile

The winner of my request for the Llewellyn-like opinion about stopping people is smcelhaney, who pointed me to Judge Pratt's dissent in the 2nd Circuit case of United States v. Hooper. Here is what he had to say about the government's reliance on a "drug courier profile" as the basis for stopping people at the airport in Buffalo, New York:
a canvass of numerous cases reveals the drug courier profile's "chameleon-like way of adapting to any particular set of observations." United States v. Sokolow, 831 F.2d 1413, 1418 (9th Cir.1987), rev'd, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989):

Arrived late at night United States v. Nurse, 916 F.2d 20, 24 (D.C.Cir.1990).

Arrived early in the morning United States v. Reid, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); United States v. Millan, 912 F.2d 1014, 1017 (8th Cir.1990).

One of first to deplane United States v. Millan, 912 F.2d at 1015; United States v. Moore, 675 F.2d 802, 803 (6th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1521, 75 L.Ed.2d 945 (1983).

One of last to deplane United States v. Mendenhall, 446 U.S. 544, 547 n. 1, 100 S.Ct. 1870, 1873 n. 1, 64 L.Ed.2d 497 (1980); United States v. Sterling, 909 F.2d 1078, 1079 (7th Cir.1990); United States v. White, 890 F.2d 1413, 1414 (8th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990).

Deplaned in the middle United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (2d Cir.1980).

Used a one-way ticket United States v. Johnson, 910 F.2d 1506 (7th Cir.1990), cert. denied, 498 U.S. 1051, 111 S.Ct. 764, 112 L.Ed.2d 783 (1991); United States v. Colyer, 878 F.2d 469, 471 (D.C.Cir.1989); United States v. Sullivan, 625 F.2d 9, 12 (4th Cir.1980).

Used a round-trip ticket United States v. Craemer, 555 F.2d 594, 595 (6th Cir.1977).

Carried brand-new luggage United States v. Taylor, 917 F.2d at 1403; United States v. Sullivan, 625 F.2d at 12.

Carried a small gym bag United States v. Sanford, 658 F.2d 342, 343 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1618, 71 L.Ed.2d 852 (1982).

Travelled alone United States v. White, 890 F.2d at 1415; United States v. Smith, 574 F.2d 882, 883 (6th Cir.1978).

Travelled with a companion United States v. Garcia, 905 F.2d 557, 559 (1st Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 522, 112 L.Ed.2d 533 (1990); United States v. Fry, 622 F.2d 1218, 1219 (5th Cir.1980).

Acted too nervous United States v. Montilla, 928 F.2d 583, 585 (2d Cir.1991); United States v. Cooke, 915 F.2d 250, 251 (6th Cir.1990).

Acted too calm United States v. McKines, 933 F.2d 1412 (8th Cir.1991); United States v. Himmelwright, 551 F.2d 991, 992 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977).

Wore expensive clothing and gold jewelry United States v. Chambers, 918 F.2d 1455, 1462 (9th Cir.1990).

Dressed in black corduroys, white pullover shirt, loafers without socks United States v. McKines, supra.

Dressed in dark slacks, work shirt, and hat United States v. Taylor, 917 F.2d at 1403.

Dressed in brown leather aviator jacket, gold chain, hair down to shoulders United States v. Millan, 912 F.2d at 1015.

Dressed in loose-fitting sweatshirt and denim jacket United States v. Flowers, 909 F.2d 145, 146 (6th Cir.1990).

Walked rapidly through airport United States v. Millan, 912 F.2d at 1017; United States v. Rose, 889 F.2d 1490, 1491 (6th Cir.1989).

Walked aimlessly through airport United States v. Gomez-Norena, 908 F.2d 497, 497 (9th Cir.1990), cert. denied, 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1991).

Flew in to Washington National Airport on the LaGuardia Shuttle United States v. Powell, 886 F.2d 81, 82 (4th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).

Had a white handkerchief in his hand United States v. Garcia, 848 F.2d 58, 59 (4th Cir.), cert. denied, 488 U.S. 957, 109 S.Ct. 395, 102 L.Ed.2d 384 (1988).

In our "Looking-Glass" world of drug enforcement, the DEA apparently seeks "to be master" by having "drug courier profile" mean, like a word means to Humpty Dumpty, "just what I choose it to mean--neither more nor less."

UPDATE: After I posted the above, I was alerted to an earlier argument, with examples, to the same effect, in Justice Marshall's dissent in U.S. v. Sokolow, 490 U.S. 1, 13-14 (1989). The alert came off list from Stephen Rynerson, who gets at least a share of the prize. Here's what Marshall said:
the facts about Andrew Sokolow known to the DEA agents at the time they stopped him fall short of reasonably indicating that he was engaged at the time in criminal activity. It is highly significant that the DEA agents stopped Sokolow because he matched one of the DEA's “profiles” of a paradigmatic drug courier. In my view, a law enforcement officer's mechanistic application of a formula of personal and behavioral traits in deciding whom to detain can only dull the officer's ability and determination to make sensitive and fact-specific inferences “in light of his experience,” Terry, supra, at 27, 88 S.Ct., at 1883, particularly in ambiguous or borderline cases. Reflexive reliance on a profile of drug courier characteristics runs a far greater risk than does ordinary, case-by-case police work of subjecting innocent individuals to unwarranted police harassment and detention. This risk is enhanced by the profile's “chameleon-like way of adapting to any particular set of observations.” 831 F.2d 1413, 1418 (CA9 1987). Compare, e.g., United States v. Moore, 675 F.2d 802, 803 (CA6 1982) (suspect was first to deplane), cert. denied, 460 U.S. 1068, 103 S.Ct. 1521, 75 L.Ed.2d 945 (1983), with United States v. Mendenhall, 446 U.S. 544, 564, 100 S.Ct. 1870, 1882, 64 L.Ed.2d 497 (1980) (last to deplane), with United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (CA2 1980) (deplaned from middle); United States v. Sullivan, 625 F.2d 9, 12 (CA4 1980) (one-way tickets), with United States v. Craemer, 555 F.2d 594, 595 (CA6 1977) (round-trip tickets), with United States v. McCaleb, 552 F.2d 717, 720 (CA6 1977) (nonstop flight), with United States v. Sokolow, 808 F.2d 1366, 1370 (CA9), vacated, 831 F.2d 1413 1987) (case below) (changed planes); Craemer, supra, at 595 (no luggage), with United States v. Sanford, 658 F.2d 342, 343 (CA5 1981) (gym bag), cert. denied, 455 U.S. 991, 102 S.Ct. 1618, 71 L.Ed.2d 852 (1982), with Sullivan, supra, at 12 (new suitcases); United States v. Smith, 574 F.2d 882, 883 (CA6 1978) (traveling alone), with United States v. Fry, 622 F.2d 1218, 1219 (CA5 1980) (traveling with companion); United States v. Andrews, 600 F.2d 563, 566 (CA6 1979) (acted nervously), cert. denied sub nom. Brooks v. United States, 444 U.S. 878, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979), with United States v. Himmelwright, 551 F.2d 991, 992 (CA5) (acted too calmly), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). In asserting that it is not “somehow” relevant that the agents who stopped Sokolow did so in reliance on a prefabricated profile of criminal characteristics, ante, at 1587, the majority thus ducks serious issues relating to a questionable law enforcement practice, to address the validity of which we granted certiorari in this case.
Mr. Rynerson only gets a share of the prize, however, because, as the citation makes clear, Justice Marshall in turn pulled this idea from the Circuit court opinion in the same case, by Judge Ferguson. But Judge Ferguson in turn got the idea from a law review article by North Carolina Appeals Court Judge Charles L. Becton, The Drug Courier Profile, 65 N.C.L.Rev. 417, 438-44, 474-80 (1987).

Therapeutic Doses and Articulable Suspicion

In my post yesterday I argued that if a precedent's age counts as a reason for adhering to it and its youth counts as a reason for retaining it, then the age (or youth) of the precedent isn't doing any real work. Crucial to the argument is the fact that, judged by various statements of the Supreme Court and individual Justices, the ranges of "old" and "new" precedents actually overlap. (Some of the comments provided additional examples. Thanks!) I certainly didn't mean to suggest that it's impossible for a proposition to be true at both ends of a spectrum but not in the middle.

Here are some familiar examples: If you have a bacterial infection, you want to take a "therapeutic dose" of antibiotic. If you take too little, you won't kill all of the infecting bacteria. If you take too much, you could harm the helpful bacteria that populate your gut. Indeed, we can make the point with ordinary nutrients: Too little food and you starve to death; the right amount and you thrive; too much and you become obese, with resulting ill health effects.

So what are we to make of the Fourth Amendment cases in which police cite as the reason for a traffic stop or subsequent investigatory activity---for which they must have at least "reasonable suspicion"---various opposite factors that seem to overlap? For example, the fact that a driver "didn't make eye contact" has been cited, as has the fact that the driver kept staring at the police officer, as has the fact that the driver's eyes darted around nervously. That appears to leave no pattern of ocular activity that is not suspicious. Likewise, drivers who drove fast and those who drove too slowly (thus giving the impression that they're trying to avoid police scrutiny) have had their speed invoked. There's either a judicial opinion or a law review article (which I couldn't find in 5 minutes on WestLaw---kudos to anyone who can locate it) that nicely lists the contradictory factors that courts have approved as bases for police investigation, much in the style of Karl Llewellyn's famous Vanderbilt article on the canons and their anti-canons.

It's tempting to say that in these circumstances, the police are merely using indicia like "the suspect was sweating" as a cover for a search or seizure that was either simply unjustified, or worse, based on an illicit criterion like the race of the suspect. And certainly that's true often enough to justify requiring "articulable suspicion," as the Supreme Court does. A hunch can just be a shield for prejudice. But it's also true that human beings can often detect suspicious patterns of behavior even when the conscious human mind can't articulate exactly what makes the behavior suspicious. That's part of the lesson of Malcolm Gladwell's Blink and Gavin de Becker's The Gift of Fear. So it's possible that much of what looks like inconsistent justifications for police activity arises out of a requirement that police articulate reasons for actions taken in response to cues that never rose to the level of consciousness.

Wednesday, August 15, 2007

Precedent Shelf Life

This past June, in Leegin Creative Leather Products, Inc. v. PSKS, Inc., the Supreme Court overruled its 1911 decision in Dr. Miles Medical Co. v. John D. Park & Sons Co., concluding in Leegin that henceforth vertical price restraints would be judged by a rule of reason rather than being deemed per se invalid. Writing in dissent for himself and Justices Stevens, Souter and Ginsburg, Justice Breyer invoked the length of time during which Dr. Miles had been on the books as one among many reasons why, in his view, the majority was wrong to discard it. I am not now interested in which side had the better of the argument as a whole. I am interested instead in the question of what weight, if any, a precedent's age ought to have in an overruling decision.

The claim that an old precedent is a strong one in virtue of its age is plausible because the older the precedent is, the more embedded it is likely to be in the law more broadly. Individuals and institutions will have likely relied upon the precedent in ordering their affairs in a way that they cannot have relied on a case decided yesterday. So far so good.

But a precedent's age can also be its undoing. Perhaps it was based on factual premises believed to have been true when the case was originally decided but since shown to be false. Or perhaps it was based on moral premises (e.g., proper roles of men and women) that have been broadly rejected. Or perhaps the law itself has changed with respect to related questions, so that the old precedent now appears anomalous. These phenomena are all more likely to occur as the age of a precedent increases.

Moreover, the recency of a precedent can also be a reason for adhering to it. In Payne v. Tennessee, the Court held that the admission at a sentencing hearing of victim impact statements does not violate the Eighth Amendment's prohibition of cruel and unusual punishments, overruling a case that had been decided just four years earlier, Booth v. Maryland, and which had been reaffirmed just two years earlier in South Carolina v. Gathers. Dissenting in Payne, Justice Marshall invoked the recency of Booth and Gathers as a reason to adhere to the rule they had established. He stated bluntly: "Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did."

Is it possible that precedents are strongest when they are very old or very young, but most vulnerable when they are middle-aged? And if so, what counts as middle-aged? Twenty years? In Planned Parenthood v. Casey, the Court found that the then-19-year-old ruling in Roe v. Wade was old enough to have become embedded in constitutional law. The Court had said much the same thing in Thornburg v. ACOG, when Roe was merely 13 years old, citing the "strong public interest in stability." Indeed, when Roe was only 10 years old, in Akron v. Akron Center for Reproductive Health, the Court reaffirmed Roe on stare decisis (and other) grounds. So if 10 is old enough to count as old, but 4 is still young, then the window for a middle-aged and thus vulnerable precedent must be quite narrow: 5-9 years, I suppose.

Needless to say, I don't mean this conclusion seriously. Rather, my point is that the length of time that elapses between an original decision and a decision whether to overrule it cannot by itself count for anything.

Tuesday, August 14, 2007

Now We Are Six(ty)

In 1997, to mark the fiftieth anniversary of the independence of India and Pakistan, the House of Representatives passed a bipartisan resolution “congratulat[ing] the people of India and Pakistan on the occasion” and “look[ing] forward to broadening and deepening United States cooperation with Pakistan and India in the years ahead for the benefit of the people of all three countries.” Undoubtedly not the most consequential legislative act taken in the 105th Congress, although let’s not forget that the 105th was the “Monica Congress,” whose “dismal legislative record,” according to congressional scholar Thomas Mann, “will barely register when its history is written.” So this resolution might actually be up there as one of its highlights.

Regardless, symbolism and good will gestures have their place, and the 1997 resolution was a laudable one. So I was curious to see what the current Congress had to offer ten years later, on the occasion of the sixtieth anniversary of Indian and Pakistani independence. The differences are at least mildly noteworthy. The only current resolution that I could find (which apparently has not been adopted) was introduced two weeks ago by House members Jim McDermott and Joe Wilson. The resolution, which McDermott and Wilson apparently introduced at the behest of the U.S. India Political Action Committee, a group which (I think) did not even exist in 1997, “applauds the Indian-American community” for its role in promoting bilateral relations between India and the United States, “extends best wishes to the people of India as they celebrate the 60th anniversary of India’s Independence,” and — interestingly, for a resolution of this sort — “recognizes India as a long-term strategic partner of the United States.” Unlike the 1997 resolution, this resolution makes no reference to Pakistan or Pakistani Americans at all.

One certainly should be careful not to read too much into something so insignificant. But this resolution seems just a tad bit petty in its exclusive focus on India. Whatever we might understandably expect from a group like USINPAC, which self-consciously advocates in favor of stronger “U.S.-India bilateral relations in defense, trade, and business,” I do expect more from members of Congress. Especially at a moment in which the Bush administration has stumbled in its policies toward Pakistan, losing Pakistani hearts and minds left and right by lending unconditional support to General Musharraf for so long — and at a moment in which none of the major presidential candidates has yet offered a compelling alternative approach in support of Pakistani democracy — it is unfortunate that members of Congress could not have approached even this small, symbolic gesture with more creativity and thought than this. * * *

So it is left to the rest of us, rather than lawmakers and lobbyists, to try to make modest symbolism at least somewhat more meaningful. As Ramachandra Guha reminds us in his magisterial new book, India After Gandhi, not everyone in the subcontinent found cause for celebration at the moment of independence, which came with the largest mass migration of people in history and left hundreds of thousands dead in the wake of Partition. As Guha notes, in Pakistan poet Faiz Ahmed Faiz wrote that

This is not that long-looked for break of day Not that clear dawn in quest of which those comrades Set out, believing that in heaven’s wide void Somewhere must be the stars’ last halting-place, Somewhere the verge of night’s slow-washing tide, Somewhere the anchorage for the ship of heartache.

In India, Gandhi avoided the independence celebrations altogether, lamenting the violence of Partition and questioning whether anyone should be celebrating “in the midst of this devastation.”

However, this evening, in New York, some Indians and Pakistanis will lay claim not only to the notion that the independence of India and Pakistan can indeed be celebrated, while simultaneously recognizing cause for mourning and reflection, but also to the idea that the moment can be a shared one that Indians and Pakistanis can celebrate together. While Gandhi observed the moment of independence with a twenty-four hour fast, the organizers of “Flavors Beyond Borders” have creatively chosen instead to embrace food, treating it

as a medium to spread the message of peace, brotherhood and harmony among the people of the two nations. People from across the border will feast on a hearty meal specially prepared by renowned chefs of the two nations and enjoy the musical performances by acclaimed singers.

As Gandhi famously said, "we must be the change we wish to see in the world," even when in seemingly insignificant ways. * * *

On July 4th, Mike commended to Dorf on Law readers the Declaration of Independence. In the same spirit, today I commend to all of you the speeches on the occasion of independence by both Nehru:

Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. . . . It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the still larger cause of humanity. . . . That future is not one of ease or resting but of incessant striving so that we may fulfil the pledges we have so often taken and the one we shall take today. The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over. [link to full text]

and Jinnah:

No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time but for this. Therefore, we must learn a lesson from this. You are free; you are free to go to your temples. You are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any region or caste or creed --that has nothing to do with the business of the State. . . . We are starting with this fundamental principle that we are all citizens and equal citizens of one State. . . . Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual but in the political sense as citizens of the state. [link to full text]

Uniters Wanted: Bright Futures as Ex-Politicians

I found myself thoroughly convinced by Mike's post on how overrated Rove has been as a "strategist." Rove himself set the goal not just at winning a couple of elections, but rather of creating a permanent Republican majority. In that, he seems to have been a colossal failure. I wonder if our presidential elections—given the electoral college, the structure of our media, and Buckley v. Valeo—will ever reward a uniter again, though?

I think back fondly to the very early days of the Dean campaign and his insistence that "Republicans are people, too." (Dean was actually a pretty conservative Governor of a pretty liberal state. So, yes, he was probably liberal in the national index, but not by as much as things seemed when he finished.) A lot of his planks were quite moderate, in fact. Still, he got trounced in the Iowa caucus (by Democrats) about as effectively as any modern candidate has who spent the kind of money he did. And here's why: shortly after Saddam had been captured, Dean's opposition to the war was spun by big money on the other side as naive—a hit Dean compounded by announcing that Saddam's capture didn't make America any safer than it had been. I don't think that was liberal or conservative. I think it was honesty, always a moderate's virtue. Yet Dean ended up being a polarizer himself, mostly because his campaign had only taken off when it started feeding on the energy his "base" gave him to attack Democrats who supported the war. As soon as that support cooled, he dropped like a stone.

I guess the moral is that you get elected (if at all) by the base and govern from the center. My worry is that getting elected has become a full time job for incumbents today because of the fundraising our politics now consists in.

Monday, August 13, 2007

Goodbye to Bush's Brain

Listening to Karl Rove, a.k.a. "Bush's Brain," praise his nominal master upon announcing his imminent departure from the administration inspired at least one contrarian thought in me. Rove has been described by his political friends and enemies alike as politically gifted. The word "genius" is used repeatedly. I beg to differ.

There is no doubt that Rove works very hard, pays attention to detail, and is utterly ruthless in retail politics---well beyond the point of decency by some accounts. But on the most fundamental political question of the Bush presidency, Rove has been dead wrong. (I don't have in mind the Iraq war, for although I have little doubt that Rove was instrumental in the White House policy of conflating al Qaeda with Saddam Hussein, the better to scare the electorate into voting Republican, the driving force behind the decision to go to war was pretty clearly the Cheney/Rumsfeld neocon operation.) Rove's fundamental error was in supposing that he could create a lasting Republican realignment by polarizing the electorate and mobilizing the conservative base. That strategy barely got Bush re-elected in 04, and made the administration and Republicans in Congress highly vulnerable when things went sour.

Consider a counter-history in which Bush sought to govern the country as the "compassionate conservative" he claimed to be, pursuing policies similar to those of his father (basically a moderate Republican despite occasional lip service to social conservatives) and Bill Clinton (a DLC Democrat). Without the personal baggage that Clinton dragged, and with the country rallying behind him post-9/11, Bush would have been an enormously popular figure. But Rove, who seems by nature a political fighter, chose polarization instead.

Perhaps none of Rove's decisions ultimately would have made much difference, once the war started to go badly. But perhaps not. A "uniter" Bush would have had real buy-in from Congress, so that Democrats (and a growing number of Republicans) would not have been able to distance themselves so easily from the White House policies.

This counter-factual world does not seem so implausible when one considers Bush's record as Texas Governor, his campaign rhetoric in 2000, and his temperament, which appears to incline him towards giving people the benefit of the doubt. (Remember when he looked into Putin's soul?) If I'm right that Rove bungled the opportunities presented by the Bush presidency, then liberals and conservatives alike are wrong to see Rove as effective, much less a political genius.

Oops - Justice Souter was a trial court judge

In my FindLaw column today (re Bell Atlantic v. Twombly), I incorrectly state that none of the current Justices served as a trial court judge. A reader noted that actually Justice Souter did so between serving as NH Attorney General and a Justice of the NH Supreme Court. I didn't remember this fact because I had assumed that a state AG would be appointed directly to the state high court. Apologies to Justice Souter and to readers.

I'm sending a corrected version of the column to my editors at FindLaw but because they're based in California, it probably won't be posted until some time in the afternoon on the east coast.

Sunday, August 12, 2007

A New Era of Accountability

In response to a reporter's question at a press briefing late last week, President Bush took umbrage at the suggestions that his administration's deeds don't match his words with respect to accountability.

The reporter specifically identified three examples of non-accountability: (1) the failure of the Maliki government in Iraq to meet benchmarks of political progress; (2) Scooter Libby's escape from any substantial penalty for committing perjury; and (3) the continuation of Alberto Gonzales in office. Bush responded by (1) ignoring the question about Iraq; (2) asserting that Libby has been held accountable because he was convicted; (3) and claiming that Gonzales shouldn't be held accountable because he didn't do anything wrong.

Those answers are sufficiently ludicrous that I'll let them speak for themselves. Here I'll just give a film recommendation for those interested in being reminded of this Administration's commitment to accountability.

Charles Ferguson's "No End in Sight" tells the story of the descent into chaos in Iraq, with devastating commentary from administration insiders. The principal villain is Donald Rumsfeld, whose breathtaking arrogance led to the critical mistakes that, according to Ferguson, created the insurgency: Insufficient troop levels to secure the country after the overthrow of Saddam; deliberate disdain for occupation plans drawn up by the State Department and other experts; and the disastrous decision to disband the Iraqi armies, thus loosing thousands of angry, armed men on the population when those very same men could have helped secure the country. Rumsfeld's key partners, besides VP Cheney, were Paul Wolfowitz and Coalition Provisional Authority head L. Paul Bremer III. Wolfowitz was not only a key figure in dreaming up the war, but is shown testifying in favor of the lower troop numbers on the ground that surely it can't take more troops to secure a country that lacks an army than it takes to overthrow that army---a point that was apparently known to be false by anybody with any experience at all. Bremer, who himself was critical of the low troop numbers, at least after he left Iraq, is shown making decisions without consulting with any of the people with the knowledge to help. Thus, Bremer participated in the decision to disband the Iraqi army and to de-Baathify Iraq by purging professionals who had only joined the party to keep their job.

Bremer and Wolfowitz were held accountable by receiving the Presidential Medal of Freedom. Rumsfeld hasn't been awarded a medal yet, but President Bush has never to my knowledge even criticized a single decision Rumsfeld made before his resignation last year.

It's also worth noting that "No End in Sight" is not an anti-war film as such. Its point is not that the U.S. should not have invaded Iraq in the first place but that having decided to do so, the Bush administration utterly bungled the job. It's possible that the invasion was doomed from the start, but that is not the perspective of the film or the people who appear in it.

Nor does the film even have a clear-cut policy prescription for the present. It takes no position on whether the "surge," soft partition, immediate withdrawal, or any other strategy is the least bad of the remaining bad options. What many viewers will infer, however, is that people who have done such a terrible job so far, and who have not remotely owned up to it and attempted to make amends, lack all credibility.

Saturday, August 11, 2007

Johnson & Johnson v American Red Cross

The American Red Cross (ARC) expressed outrage earlier this week that Johnson & Johnson (J&J) was suing ARC for trademark infringement. For its part, J&J defends its resort to litigation by explaining that it holds the trademark to the red cross, which ARC can only use for its humanitarian projects. The suit objects to ARC's licensing of the red cross for commercial products. ARC responds that it uses all of the money it makes from first aid kits and other products bearing its symbol for its charitable work. What ARC does not say---and does not appear to deny either---is that the commercial entities to which ARC has licensed the red cross keep their portion of the proceeds.

Thus, on the merits, this appears to be a pretty clear-cut victory for J&J, subject to two important caveats. First, the adverse publicity from this suit---a bit like suing Santa Claus---could do more harm to J&J than the use of its mark would. Second, there's a chance that J&J could lose its mark entirely. Although I haven't done any serious research into the matter, my initial reaction is that if I were defending the ARC, I'd challenge the validity of J&J's mark either on the grounds that it has lost its distinctiveness, or that J&J shouldn't have been able to use the red cross back in 1887. As the J&J press release notes, that was before the formation of the ARC, but it was AFTER the 1864 Geneva Convention declaring ambulances and military hospitals neutrals, and designating the red cross as their symbol. Even if we assume that the Lanham Act takes priority over the U.S. ratification of the treaty, the prior use could void the mark under the Lanham Act (although perhaps it's too late for the ARC to make this argument).

The ARC could even argue that the red cross is not trademarkable because it is very nearly the flag of Switzerland. (The Lanham Act forbids trademark protection for foreign flags.) This argument is unlikely to succeed, however, because the Swiss flag is a white cross on a red background rather than vice versa. ARC would have to argue that the disqualification for national flags contains an implicit corollary applicable to dyslexics.

My suspicion, however, is that J&J will win, in large part because the ARC press release doesn't make any good arguments on the merits. It simply accuses J&J of being a greedy company. Presumably, if the ARC's lawyers thought they had a good response on the merits, they would have mentioned it. Thus, I'm led to conclude that my own arguments above are probably lousy ones.
Either that, or ARC's lawyers did not have anything to do with the press release.

Friday, August 10, 2007

The Center Cannot Hold

No, I'm not talking about the future of American politics or the U.S. Supreme Court. The above is the title of a wonderful new book by University of Southern California Law and Psychiatry Professor Elyn Saks, a former teacher of mine and a person I feel privileged to count among my friends. Elyn Saks has written extensively in the area of mental health law and has, in addition to her legal credentials, a degree in psychoanalysis. Her new book, however, is not a work of scholarship but a memoir -- a riveting and illuminating account of her experiences as a person who suffers from schizophrenia. The book begins at Yale Law School, where Elyn was a student in the mid-1980's and where she experienced a psychotic break while meeting with her study group in the library. She then takes us back in time, focusing on a period during which she studied at Oxford and was hospitalized for the first time. We watch her coming to terms with her illness and ultimately figuring out how to cope with it and still live her life the way she wants to live it.

The book is wonderful in a couple of ways. First, the writing is superb and therefore a pleasure to read. Second, Elyn manages to explain mental illness to readers in a manner that is both easy to follow and successful at conveying the distinction between a "schizophrenic" (that scary person talking to himself on the subway from whom everyone looks away) and a person -- a kind, generous, brilliant, and warm person -- who suffers from a debilitating condition that requires treatment. Evidencing her generosity, she emphasizes in her story that people should not look at her case and think "Why can't Johnny, the man in my family suffering from schizophrenia, also become an accomplished scholar? Elyn Saks managed to do it." The lesson, instead, is that people with schizophrenia are not so different from everyone else and that what distinguishes them should make the rest of us feel lucky and empathic rather than superior and distant.

Though I enjoyed A Beautiful Mind very much (confession -- I saw the movie but did not read the book), Elyn's book is better (if one can compare movies to books) at making the reader identify with the struggles of a person suffering from psychotic illness. By the end of the book, one comes to love Elyn and wish her well, as though one has known her for years (and I say this, realizing that I have known her for years but feeling like I have met her anew through her book, which I could not put down). I must add to the praise of its content that I am in awe of Elyn's courage in writing such an account. Though mental illness has become increasingly common in the population (especially PTSD, no thanks to our Commander in Chief), the stigma attached to it has not abated very much over the years. And this is even truer of thought disorders such as schizophrenia than of the so-called mood disorders such as depression and manic-depression. For a person of status like Elyn to write a memoir of schizophrenia is accordingly to take a risk -- people can either look at others with schizophrenia in a new and more enlightened way or they can look at the writer of the book in a less flattering light and say "now we now that she is one of 'them.'" I am hopeful that most readers will do the former, but Elyn's willingness to risk the latter in her effort to educate us all says a great deal about her character.

Thursday, August 09, 2007


Strategic voting poses a challenge to the designers of any electoral system that aims to translate voter preferences into election winners. But it's also a problem for individual voters trying not to outfox themselves, as Democrats arguably did in 2004. Fearing vulnerability on national security, they nominated John Kerry, who was then attacked as a traitor AND who ran a weak campaign on other issues to boot. It's impossible to know what would have happened had someone else been the standard bearer in 2004, but it's hard to imagine that Howard Dean (the early front-runner) or John Edwards (a strong finisher) would have done much worse---and by nominating one of them, Dems would at least have voted their true preferences.

Strategery also creates difficulties for voters trying to decide whom to root for among the other party's candidates. The current Presidential primary process is a nice example.

For socially liberal Democrats, Rudy Giuliani is probably the least offensive Republican candidate. So socially liberal Democrats faced with the question of which Republican in the current field they would most like to see as President, IF a Republican were to win the election, would likely pick Giuliani. However, Giuliani would make a formidable candidate, in part BECAUSE he does not hold strongly conservative social views (and in part because, as Mayor of 9/11, he has appeal in running to become President of 9/11). So a liberal Democrat might well rather see, say, Tom Tancredo get the Republican nomination. Although, from the perspective of liberals, Tancredo would be a disastrous President, his nomination would increase the likelihood that a Democrat wins the general election, and almost any Democrat in the current field would be better, again from the liberal persepctive, than any Republican in the current field.

The converse holds for conservative Republicans. Although many Republicans don't seem to realize it, Hillary Clinton should be their choice as the most conservative member of the current Democratic field. Were it not for the widespread conservative perception that Clinton is a pot-smoking, bra-burning, terrorist-coddling pinko, they would embrace her as the least offensive Democrat, even as they hope that, say, Dennis Kucinich gets the Democratic nomination.

Of course, for most voters, it's not especially important to decide which of the opposing party's candidates to root for, but for those who live in open primary states, there is the option of voting in the opposing party's primary and deliberately backing a weak candidate. This is even an option in states with the more conventional closed primary: If you're a Republican, you can switch your registration to Democrat, and then vote for Mike Gravel. Although such spoiler voting occurs, it does not appear to play a major role in American politics.

For pundits, however, strategery is a real possibility. Witness the furor over arch-neocon William Kristol's recent praise for Hillary Clinton. Could Kristol be engaged in a strategic maneuver? Or is this one of those happy circumstances---from the neocon perspective---in which the Democrat that they believe would actually be most sympathetic to their perspective would have serious trouble winning the general precisely because she is erroneously viewed as on the left of her party?

Wednesday, August 08, 2007

Dishonest Tax Rhetoric, Part 3 of 3

In the last two days, I've created an admittedly arbitrary list of rhetorical claims that are often used in U.S. political discussions about taxes. Entirely unscientific in both origin and design, the list purports to rank the degrees of dishonesty that animate some of the more outrageous assertions by those who can broadly be described as "anti-tax," which in the current climate breaks down almost entirely on partisan lines. (Republicans eagerly assert their opposition to taxes as a categorical matter; Democrats too often agree that taxes are generally bad but defend taxes on the basis of a combination of fiscal discipline and targeted policy objectives.)

The two lucky winners so far: 3rd Place went to the claim that allowing the Bush tax cuts to expire would constitute the Biggest Tax Increase Ever, and 2nd Place went to the proponents of a national sales tax who insist on presenting the tax rate under their plan (which is artificially low for several reasons, not the least of which is that they assume that tax evasion will cease entirely, even after eliminating the IRS and dumping sales tax enforcement on the states) in a way that no normal person would expect.

The big winner will not surprise those who know me: The Death Tax. There are two separate arguments for calling the estate tax the death tax, one technical and one practical. Both are completely wrong.

The technical argument is that the estate tax cannot be assessed until a person dies. The tax, therefore, is a tax on death. "You don't die, you don't pay the tax." Notwithstanding the humorous notion that this is exactly the kind of incentive that we should want to build into the tax code (one more reason not to die), the fact is that we do not identify taxes on the basis of their triggering event. The income tax can be assessed annually (either on a calendar year or fiscal year basis) or at shorter or longer intervals. No matter the interval, it is still an income tax because it is a tax on income. If you are paying an income tax on a calendar year basis, you do not pay tax until Dec. 31 ends. Even so, it is an income tax and not a "New Year's Eve Tax."

Property taxes are not identified by the date that they are paid, either, but by what is being taxed (the value of property). Sales taxes are assessed on the dollar amount of certain purchases of goods, which at least means that the thing that's being taxed (consumption) and the date that it is being taxed (upon purchase) can coincide; but the term sales tax refers to the fact that we're computing the tax based on the amount of the sale, just as we assess income taxes on the amount of income.

The practical argument goes something like this: "Sure, technically this is not a tax on death itself. But come on, it's a tax on death! It just makes sense to call it a death tax." Leaving aside the lack of actual content to this argument, the point seems to be that we should ignore consistency or history and simply indulge our desire to focus on death as the triggering event.

If we're allowed to be practical in this sense, though, this opens up the field to all kinds of practical observations. That estate taxes are currently paid by fewer than 1% of all decedents' estates suggests that the current use of the term estate tax is quite accurate in the connotative sense -- only people with "estates" pay the estate tax. (I had a student who once argued that the term "estate tax" had been invented by "a bunch of liberal lawyers sitting in a room somewhere trying to make the tax sound like it would only apply to rich people." Sometimes being a professor means exercising incredible self-control.) While not everyone who earns an income pays income tax every year, yet we still call it an income tax, as a practical matter most people will earn income and pay income taxes at many points in their lives. Practically speaking, almost no one who dies will leave behind an estate tax liability.

"Death tax" thus wins the gold because it loses either way. Either it focuses on something that is irrelevant to the designation of all other taxes, or it highlights the least important (and most misleading) practical fact about the estate tax. It is a focus-group tested invention that too many politicians use to distort the debate. It takes the award for most dishonest tax rhetoric. Unfortunately, the competition is fierce, and the game is never over.