Saturday, September 29, 2007

Peremptorily Challenged Again

As I noted in a post a couple of days ago, I was on jury duty Thursday and Friday. As civic duty goes, I certainly can't complain about the experience (although I admit that my earlier post could be read as doing just that). With American men and women in the armed services suffering grievous injuries and dying on a daily basis, the inconvenience of spending a couple of days or even a couple of weeks away from the ordinary routine of work is a small price to pay for a functioning legal system. (People living paycheck to paycheck who must take time off from work suffer a substantially greater hardship.) My point there, which I'll belabor here, is that one aspect of jury service---peremptory challenges---makes it substantially more burdensome than it needs to be, without generating any real benefit. I make that point fully aware that, in the scheme of things, the burden is relatively light (especially for people like me, who get paid in full during jury service).

This was my fifth time on jury duty (my fourth time in New York), and I have never been chosen for a jury. I also don't believe that I have ever been excused for cause, because I always give the sort of answers that should prevent being dismissed for cause: In none of the cases for which I've been examined have I known any of the participants, I understand that my job is to follow the law as the judge explains in the charge, and I will not let my own personal experiences or sympathies interfere with my duty to apply the law. Nonetheless, I'm always bounced. Why?

If I were a trial lawyer, I'd be worried that having a law professor or, for that matter, a lawyer of any sort, on the jury, could result in that one juror dominating the others. Even if the law professor or lawyer followed the law as provided by the judge, the other jurors might look to him for guidance, and quite apart from that, lawyers are trained to make persuasive arguments, so even without giving the lawyer/law professor juror any added deference, his views could have greater weight in deliberations because expressed more persuasively than those of lay jurors.

Who benefits? In a criminal case, I'd have to say the prosecution. A single sympathetic juror can hang a jury, and a few hung juries are almost as good as an acquittal. Thus, a juror who makes it more likely that other jurors will come around to his viewpoint has an asymmetrical effect. If the lawyer/law professor is for acquittal, it's true that this will help the defense, but probably not as much as it would hurt the defense for a pro-conviction lawyer/law professor juror to sway any holdouts towards conviction.

This analysis jibes with my gut sense---and per Stephen Colbert, I always trust my gut---that defense attorneys have been the ones using their peremptories against me. That's also consistent with the limited picture they get of me from the voir dire: For example, this past week's case was a robbery prosecution, and I answered "yes" to whether I'd been a crime victim. In 1990 I was robbed by a gunman at an ATM. I also answered "yes" to whether I'd ever worked with or for law enforcement, since I externed in a D.A.'s office for 5 months in my third year of law school. Put together these seemingly pro-law enforcement experiences with the asymmetrical effect of a dominant juror and it's easy to see why a defense attorney would want me off the jury.

But would my presence on a jury actually benefit the prosecution? I tend to doubt it. Again, I answer truthfully when I say I can follow the law, but I'm, well, a liberal, which means that I'm probably more likely to find reasonable doubt on a given presentation of the evidence than someone who's more conservative. I can't say for sure, but it seems at least plausible that the defense attorneys who have been using their peremptories to bump me (if my analysis is right) over the years, have been making an understandable miscalculation. By providing lawyers with just enough information to make wild guesses about a juror's sympathies, our system of voir dire and peremptory challenges shows itself to be worse than useless.

Friday, September 28, 2007

Do Animals Have Souls?

I find Sherry's posts advancing her views on the rights of animals provocative and valuable. Her latest post is no exception. Like some of the commenters to her post, I do wonder about her statement that it is self-evidently true that, in the words of Justice Rivlin, "wild creatures, like pets, have emotions. They were endowed with a soul that experiences the emotions of joy and sorrow, happiness and grief, affection and fear." The sticking point for me is not the question of whether animals have emotions, on which I take no strong view, and which may have been the aspect of the quote to which Sherry responded most fervently. Rather, it's the statement that animals have souls. I don't see how this is self-evident. While I believe human beings may have souls, it is not self-evident to me that they do, and it is still less self-evident to me that the same thing can be said about animals.

I suppose one could reason, in some natural law-like way, to this position. But however compelling that logic might be, everything would depend on one's starting premises. Once having started down this path, moreover, I fail to see how some other set of conclusions derived from similar natural-law reasoning would be any less persuasive: say, that homosexuality is an inherently disordered moral state, or that women are inherently suited toward the domestic sphere. I don't share these views, but I don't see how they are any less self-evident than the view that animals have souls.

More interesting, perhaps, are the following sets of questions: If it is self-evident that animals have souls, what are the minimal qualities of capacity for emotion that constitute ensoulment? Moreover, why should anything follow as a moral matter from the possibility that animals have souls or that they have some minimal capacity for emotion? Is the notion here that it is immoral to take the life of another being, one endowed with a soul and the capacity to experience the richness of life, without an extraordinarily compelling reason?

And, following from these questions: What is the status in such a moral universe of the human fetus? If I am morally obligated, on the basis of the ensoulment or capacity for experiencing life and emotion, to oppose the unncessary killing of animals, should I not be equally obligated to oppose abortion in all circumstances save, perhaps, those necessary to genuinely preserve the life and health of the mother? To the extent that Justice Rivlin's legal conclusions followed from her belief concerning the souls of animals, was it appropriate for her to base any conclusions on those views? And is a judge equally entitled in considering the abortion question to import his or her view of the souls of fetuses?

Again, Sherry may have been focusing more on the capacity for emotion aspect of Justice Rivlin's argument than on the ensoulment argument. At least some of these questions, though, would be pertinent even in those circumstances.

-- Paul Horwitz

Thursday, September 27, 2007

Eliminate Peremptory Challenges to Shorten Jury Service

21 years ago, in Batson v. Kentucky, the Supreme Court held that a prosecutor's use of peremptory challenges on the basis of prospective jurors' race violates equal protection. Justice Thurgood Marshall joined Justice Lewis Powell's majority opinion, but also wrote a concurrence arguing that the Court should go further and completely ban peremptory challenges. Permitting any such challenges, Marshall said, would make it extraordinarily difficult to prove race discrimination in any given case. In the years since Batson, the Supreme Court has expanded both the categories of forbidden discrimination (to include sex and national origin as well as race) and the circumstances in which it is forbidden (including peremptories by criminal defense attorneys and by attorneys in civil cases). However, the Court has not taken up Justice Marshall's suggestion of eliminating peremptories altogether.

That is most unfortunate. Given the ease with which a prima facie Batson violation can be rebutted, Justice Marshall was probably right that much illicit discrimination goes undetected. But even if he were wrong about that, eliminating peremptory challenges would have a wholly unrelated and almost entirely beneficial effect: It would greatly shorten the length of time it takes to pick a jury and the number of people needed to make up a jury pool.

I am painfully aware of the cost of peremptories at the moment because I am currently in the midst of jury service. I spent most of today with about 60 of my fellow citizens in a New York State criminal court, as the judge and lawyers painstakingly asked each prospective juror a variety of questions. To be sure, some of these questions were designed to elicit grounds for cause dismissals, such as connections to the parties or professed inability to follow the judge's instructions regarding reasonable doubt. (I strongly suspect perjury from some of my fellow prospective jurors, who, in my view, were claiming that they could not be sure they would follow the law as a means of being excused from service.)

However, at least half of the questioning concerned matters that did not reasonably relate to a cause dismissal. Instead, questions about jurors' occupations and hobbies are designed to permit lawyers to exercise their peremptories on the basis of those hunches and stereotypes that the Batson line of cases does not forbid. Thus, the result of having peremptory challenges is to roughly double the amount of time per panel member on voir dire. Moreover, unless I've misread the applicable New York statute (and I admit I don't usually practice criminal law in New York), in a robbery case of the sort I'm now on (as a panel member only so far), the prosecutor and the defense attorney are each entitled to exercise 19 peremptory challenges. That means that if each side uses up all of its peremptories, then in order to seat 12 jurors and 2 alternates, the court will have to find 52 qualified jurors.

In other words, in a New York State criminal case, jury selection may take 6 times as long with peremptories as it would take without peremptories (twice as long examination per juror and three times as many jurors). New York's use of peremptories also requires citizens to show up to jury duty as much as three times as often as they would need to without peremptories (because the ratio of rejected to accepted jurors is so high). And for what? There is simply no reason to think that the dismissal of qualified jurors results in juries that are more fair or better along any dimension. Peremptory challenges have been completely abolished in England with no evident ill effects.

Admittedly, the fact that peremptory challenges end up wasting the time of an enormous number of people does not mean that they violate the Constitution, but the problem at least cries out for legislative reform. As far as I can tell, the only constituency that favors peremptory challenges is trial lawyers. Long ago, I was the Reporter for a New Jersey Supreme Court committee tasked with addressing bias in the jury selection system. (At the time I lived and worked in New Jersey.) I proposed eliminating peremptories. The judges and the one other professor on the panel heartily seconded the proposal but the trial lawyers all balked. As one of them explained to me outside the meeting: "A peremptory challenge is my one opportunity to overrule the judge. I'll be damned if I give that up." To which the rest of us should respond: Fine; don't give it up; we'll take it from you.

Posted by Mike Dorf

Banning Foie Gras and the Illusion of “Balance”

On Tuesday evening, Mike and I attended a panel at Columbia Law School entitled “Cruel Farming Practices and the Law: The Israeli Ban on Foie Gras.” The panel, introduced and moderated by David Wolfson, a Lecturer-in-Law at Columbia, took up the subject of a 2003 Israeli High Court of Justice decision holding that the force-feeding of geese or ducks involved in producing foie gras violates the Animal Welfare Law. Panelists included Retired Justice Tova Strasberg-Cohen and Justice Eliezer Rivlin of the Israeli Supreme Court as well as two attorneys, Jonathan Lovvorn and Mariann Sullivan, who have litigated challenges to cruel farming practices in the United States.

As the panel proceeded, I was struck by the salience of two positions that the Justices embraced. The first position was that nonhuman animals have personal rights against torture and harm that are entitled to weight, even when honoring those rights might have a negative impact on farmers and consumers. In expressing his affinity for this position, Justice Rivlin’s concurring opinion in the case eloquently stated that “As for myself, there is no doubt in my heart that wild creatures, like pets, have emotions. They were endowed with a soul that experiences the emotions of joy and sorrow, happiness and grief, affection and fear. Some of them nurture special feelings towards their friend-enemy: man. Not all think so; but no one denies that these creatures also feel the pain inflicted upon them through physical harm or a violent intrusion into their bodies.” Hearing these words from a high court judge is gratifying and far too rare, given their self-evident truth.

The second position was that the animal’s right must be balanced against the human being’s right to use the animal to meet human food-consumption needs. This position struck me as both morally unpersuasive and logically inconsistent with the first position. If in fact an animal has any right at all not to be subjected to pain, then it follows necessarily that a human being’s pleasure in consuming the animal’s flesh cannot be “balanced” against that right without rendering the right itself is virtually meaningless. People do not need to eat and drink animals or their eggs or their milk to survive or to thrive. The reason people nonetheless consume such products is that they enjoy consuming them, just as some people enjoy watching buildings explode. People have a “taste” for flesh (or for butter or eggs or whatever). Just imagine balancing a different non-absolute right in this way. Say you purchased the last copy of a book at the store, and I see that book, and I really want to read it. I cannot just take it out of your bag, because however much I want to read it, I do not need it to survive (I could, if someone threatened to kill me if I did not immediately provide that book, lawfully steal it and hand it over to the assailant).

When Mike raised an argument about the absurdity of balancing the right to live against the right to enjoy the flavor of the one holding the right to live, the response was quite disappointing. Justice Strasberg-Cohen said that she “respects” the right to the vegan lifestyle but that Mike must understand that many people eat meat, and we need to find a happy medium. How the endorsement of such a happy medium is consistent with placing any independent value on an animal’s right against torture and death was nowhere in evidence. Perhaps such exchanges demonstrate that the step-by-step approach I provisionally endorsed in a recent column is bound to fail. And yet, Justice Rivlin’s words are moving, and I am glad that there is some empathy for animals (however unrealized) rather than none.

Posted by Sherry Colb

Wednesday, September 26, 2007

Downloads and Inflation

Earlier this year, I posted some thoughts on the question of using downloads from the SSRN repository to evaluate the "scholarly impact" (or some other notion of importance) of faculty and law schools. My biggest concern remains that the use of these download data in rankings gives people an incentive to do the opposite of what SSRN was designed to do in the first place: encourage people to look at each others' work and to engage with it. Specifically, since we know that a decision to download a paper will pump up the author's rankings, that knowledge can cause us to pass over a paper either for straightforward strategic reasons ("I don't want to pump up his numbers!") or for more benign reasons ("I'm not sure what this paper says; but the very act of finding out will pump up the numbers for a paper that I might end up wishing I had not downloaded.")

I'll add here that there is an additional difference between download counts and citation counts. While citation counts are also problematic, they cannot really be stopped. That is, there is nothing to stop any motivated party from going out and counting citations. All you have to have is the time and technology, and you can count the citations of any given paper in any set of publications you like. SSRN download counts, by contrast, are not (so far as I know) inherently public data. If the management of SSRN decided that the information that the download data provide is less valuable than the distortions that they cause, they could simply choose not to provide this information anymore. If I'm right that they have this option, I wish that they would exercise it. In my mind, the cost/benefit analysis clearly disfavors publishing these numbers -- especially because they undermine what I take to be SSRN's core purpose.

That said, I also wanted to add a criticism that was suggested to me by my new colleague at GW, Sarah Lawsky. (For people who are destined by their surnames for careers in the law, perhaps only Sylvia Law has a better name than Lawsky.) Sarah suggests, without taking a position on whether it is actually a useful exercise to count downloads, that downloads need to be adjusted for the equivalent of inflation. That is, the download counts are typically offered as "all-time downloads" as well as "recent downloads." (A recent example is here.) What could all-time downloads possibly tell us? In its early years, SSRN naturally had very few papers, and most scholars had not yet heard of it and were not downloading papers as part of their research work. An author could have written a paper that had only 30 downloads in an environment where there were only 3000 downloads in a week, whereas today a relatively minor paper could have two to three times as many total downloads. It's like saying that someone earning $200,000 per year today is richer than someone who earned $100,000 per year in 1967.

What is the right "price deflator," to use the economics term? As Sarah points out, this depends on the question we're asking. I'm not sure that there is a useful question that is answered by all-time downloads (or current downloads, for that matter), even if we could engineer a nice price deflator. I do know, though, that those who do think that downloads are a good measure of something would make a more compelling argument if they could identify what they think they're measuring and then devise an appropriate price deflator.

-- Posted by Neil H. Buchanan

The Normative Significance of Holocaust Denial

Columbia President Bollinger scolded Iranian President Ahmadinejad's denial of (or on Ahmadinejad's account, at least to Western audiences, questioning of the evidence for) the Holocaust on the ground that this denial (or questioning) is factually preposterous: The Holocaust, Bollinger noted, is extraordinarily well-documented historical fact.

Fair enough, but the assertion of factually preposterous views (or even the questioning of extraordinarily well-documented facts) is not ordinarily denoted a moral failing. In the United States, millions of citizens disbelieve the extraordinarily well-documented scientific fact that human beings evolved from other species. Three of the out-and-out evolution deniers are candidates for the 2008 Republican nomination for President and President Bush himself has said that "the jury is out" on evolution. These are preposterous views, to be sure, but not the sort of thing that would get you imprisoned for espousing in Germany or Austria.

Holocaust denial is not a crime in the former Third Reich merely because the Holocaust is an extraordinarily well-documented fact. It is a crime because it so often is a view espoused by neo-Nazis. Likewise in western countries that do not criminally punish Holocaust denial, its offensiveness stems largely from the likelihood that someone who denies the reality of the Holocaust may very well wish to repeat it.

Exactly why a neo-Nazi would want to deny, rather than celebrate, the Holocaust, is not entirely clear, but probably has something to do with the fact that literally promoting genocide could lead to imprisonment in countries with less speech-protective notions of incitement than the United States. That can't be the whole of the story, however, because even in the United States, where "abstract" expressions of sympathy for the Nazi program would be protected by the First Amendment, anti-Semitic groups such as the Aryan Nations deny (or question) the Holocaust. Their evident goal is to demonize Jews for spreading the "myth" of the Holocaust. Thus, here, as in Europe, Holocaust denial is a marker for neo-Nazism (and associated ideologies).

Holocaust denial (or questioning) by strongly anti-Israel figures such as Ahmadinejad is most clearly meant to undermine the legitimacy of the State of Israel, which was created in part as a refuge for Jewish Holocaust survivors. To be sure, Ahmadinejad and others also say that the Holocaust does not legitimate Israel because victims of a European crime should not have been compensated by the displacement of Palestinians who, for the most part, did not participate in that crime. (Ahmadinejad would describe Palestinians as completely innocent but I say "for the most part" because some Palestinians, including Mufti Haj Amin al-Husseini did try to assist Hitler.) In general, the argument that one set of innocents should not be made to suffer for the sins of others has considerable moral force, which leads one to wonder why Ahmadinejad et al feel the need to supplement this prima facie plausible argument with the completely implausible claim that the Holocaust is a hoax. And that in turn leads one back to the usual explanation for Holocaust denial, namely sympathy for the Nazi program.

(Just to be clear, and in the interest of avoiding extended discussion on this tangential point in the Comments, I am NOT saying in the preceding paragraph that the displacement of Palestinians in 1948 means that Israel is today or ever was an illegitimate State. I AM saying that this argument at least has some theoretical force to it, while the "argument" that the Holocaust is not established fact has no force to it whatsoever, and thus leads one to worry about the motives of anyone who makes it.)

Posted by Mike Dorf

Tuesday, September 25, 2007

BBC World Service - Updated

I'm on the BBC World Service at 1 pm Eastern Time talking about regulation of Holocaust Denial in Europe (and its non-regulation in the U.S.).

Update: Well that was a bit of a bust. The BBC technicians couldn't patch in for much of the hour, so I ended up joining only the tail end of the conversation. We didn't get to the question above but instead talked about whether it was appropriate for President Bollinger to introduce President Ahmadinejad by calling attention to his flaws. I said that Bollinger was in a difficult position because:
1) He himself had not extended the invitation and (I'm guessing) probably would not have done so were it just up to him;
2) But he appropriately did not want to interfere with the autonomy of Dean Coatsworth;
3) And given the high profile nature of the event it was inevitably going to be seen as a Columbia event (rather than merely a SIPA event);
4) So he was obligated to say something;
5) But a merely polite "Heeeeeere's Mahmoud" would have not put enough distance between them;
6) And accordingly, he gave a kind of preemptive rebuttal.
I agree with those people (including Ahmadinejad himself!) who said that it's a bit odd, even rude, to invite a speaker and then say what an evil jackass the speaker is by way of introduction, but this account misses the fact that Bollinger did not himself invite the speaker.

--Mike Dorf

Monday, September 24, 2007

Make Ahmadinejade?

You know the old saying: When life gives you lemons, make lemonade. Today's introductory speech by President Lee Bollinger was an effort to make Ahmadinejade of the difficult hand that School of International and Public Affairs Acting Dean John Coatsworth dealt him by inviting Iranian President Ahmadinejad to speak at an official university forum. You can read the full text here, but having watched it live (via closed circuit tv on campus), I must say it was perhaps the most forceful performance I have ever seen from Bollinger. He called Ahmadinejad "evil," "petty," and "cruel," adding that his Holocaust denial made him "either brazenly provocative or astonishingly uneducated." The written transcript does not quite do justice to Bollinger's contempt for Ahmadinejad.

As for Ahmadinejad himself, I only watched about 20 minutes before I had to go teach my civil procedure class, but during most of the time he impressed me as oddly disconnected. Most of his prepared remarks seemed, well, unprepared. There were long rambling discussions of scripture, meaningless discursions on "science," and an occasional dig at the Bush Administration, the U.S. more broadly, and President Bollinger's hostile introduction. The transcript (available here) reveals a mind that is at the very least, disordered. Here's an example of the sort of gobbledeeguk that makes the Unabomber look like Thomas Paine:
If we accept that "science" means "illumination," then its scope supersedes the experimental sciences, and it includes every hidden and disclosed reality. One of the main harms inflicted against science is to limit it to experimental and physical sciences; this harm occurs even though it extends far beyond this scope. Realities of the world are not limited to physical realities. And the material is just a shadow of supreme realities, and physical creation is just one of the stories of the creation of the world. Human being is just an example of the creation that is a combination of the material and the spirit.
Ahmadinejad did much better in answering questions. His answers were, of course, preposterous to anyone who knows or cares about the actual facts, but they had an internal coherence of the sort one associates with ideologues. He even had some good (if disgusting) rhetorical moves. E.g., he turned the extolling of academic freedom to his advantage by characterizing his Holocaust denial as merely "asking questions" in the spirit of science. Which is not to say he didn't occasionally display his delusional nature. E.g., "In Iran, we don't have homosexuals like in your country. (Laughter.) We don't have that in our country. (Booing.) In Iran, we do not have this phenomenon. I don't know who's told you that we have it. (Laughter.)"

Perhaps the only unexpected moment was Ahmadinejad's acceptance of Bollinger's challenge to permit a delegation of Columbia students and faculty go to Iranian universities and meet freely with students and faculty there. That's a tiny bit uncomfortable for me, however, because Bollinger's challenge was issued just after mentioning my own stint today on Voice of America (which he misidentified as Radio Free Europe). To wit:
And while my colleagues at the law school -- Michael Dorf, one of my colleagues, spoke to Radio Free Europe, viewers in Iran a short while ago on the tenets of freedom of speech in this country -- I propose further that you let me lead a delegation of students and faculty from Columbia to address your universities about free speech with the same freedom we afford you today.
I fear that I'll be expected to pack my bags for Tehran, which was not really on my list of places I most wanted to go.

Dinosaurs and Thunder

My FindLaw column today is about the "butterfly effect" of Supreme Court decisions. You know, a butterfly beats its wings, affecting the wind ever so slightly, and because of the chaotic nature of weather, this changes the course of history. In the course of introducing the phenomenon I refer to a time travel story called "A Gun For Dinosaur." A couple of astute readers (proving themselves even nerdier than I!) noted that a better reference would have been the Ray Bradbury story "A Sound of Thunder." I agree and in fact I read "A Sound of Thunder" as a boy. I referred to "A Gun for Dinosaur," which is also a time travel story and works for the point I was making in the essay though admittedly not as well, because I took part in a symposium a few years ago that used "A Gun for Dinosaur" as the jumping-off point. Thus it was the story title that came to mind. Apologies to Bradbury and his fans.

Sunday, September 23, 2007

Ahmadinejad, Again

My last post on the Ahmadinejad visit to Columbia generated some very heated debate, which I won't join. Instead, I'll take another crack at some of the free speech/academic freedom issues.

A number of the comments on my last post, and a great many more comments in other fora, refer to the invitation extended to Ahmadinejad by Columbia. This is not exactly false but not exactly true, either. Ahmadinejad sought the invitation to speak at Columbia through Professor Richard Bulliet of Columbia's Middle East Institute. The invitation was ultimately extended by John Coatsworth, the Acting Dean of the School of International and Public Affairs, who says: "Opportunities to hear, challenge, and learn from controversial speakers of different views are central to the education and training of students for citizenship in a shrinking and dangerous world." It now appears that President Lee Bollinger will introduce Ahmadinejad, and challenge him on his Holocaust denial, calls for the destruction of Israel, support for terrorism and attacks on US troops, nuclear program, and suppression of women and others. There will be a chance for questions from the audience as well. You can read the various statements by Coatsworth and Bollinger at the links here.

The substantial level of participation by Columbia administrators, including the University President, make it plausible to describe Ahmadinejad's speech as "sponsored" by Columbia, in a way that it would not be fair to describe the speech of any and every speaker invited by any and every student group that way. Presumably that is why Bollinger thought it necessary to say: "
It should never be thought that merely to listen to ideas we deplore in any way implies our endorsement of those ideas."

At the same time, reading between the lines, I find hints that were it his call to make, Bollinger would not have invited Ahmadinejad. He says: "we must respect and defend the rights of our schools, our deans and our faculty to create programming for academic purposes." Translation: Coatsworth invited this guy, and our internal organization gives deans an absolute right to decide whom to invite to speak at their schools and departments.

One can certainly question whether a university ought to have a rule that the central administration unequivocally backs deans of particular units on decisions of this sort. One can, that is, argue that the dean of a department or school is not, in that capacity, entitled to the same sort of academic freedom as an individual professor. I raised this issue a few days ago (here). But I doubt that this out would have been available to Bollinger even if he wanted to take it. Either Coatsworth or Bulliet could easily have argued that he was acting in his capacity as faculty member in inviting Ahmadinejad.

Moreover, as one of the comments on an earlier post noted, so long as Bollinger has an absolutely hands-off policy, he can say with justification that an invitation to speak is not in any way an endorsement of a speaker's views. If Bollinger interfered with an invitation issued by Coatsworth (or if Coatsworth interfered with an invitation issued by one of his faculty members), then (subject to a caveat to which I return in the next paragraph) it would have to be on the ground that Ahmadinejad is "beyond the pale." But then the next time a student group or faculty member invites a speaker that many people find offensive, an administrative decision not to intervene would rightly be read as signaling that this speaker is not beyond the pale. For reasons such as these, internet service providers do not typically monitor the content their users post on their allocated space: A policy of objecting to any speech implicates one in the speech to which one does not object.

But now I come to an important caveat that might distinguish intervention to block a speech by Ahmadinejad from intervention to block speeches by others with profoundly offensive views. Ahmadinejad is not merely the holder and speaker of profoundly offensive views. He is also someone who has taken extremely dangerous actions. First Amendment doctrine sensibly distinguishes between content-based and content-neutral regulations of speech, and while the First Amendment does not apply of its own force to a private university, Columbia (like many universities) is committed to principles of free expression nonetheless. Suppose, then, that Columbia were to deny Ahmadinejad a forum not on the basis of an objection to what he has said or will say but on the basis of what he has done. Might Columbia apply a principle under which sponsors of terrorism, no matter what they say, don't get to give speeches at Columbia?

If the issue were literally governed by the First Amendment, the answer would probably be no, because speaker-based distinctions are deemed content-based. So Columbia would have to be applying a broader rule that doesn't refer to speech at all, such as a rule that forbids terrorism sponsors from setting foot on campus. However, Columbia does not appear to have such a rule, or if it does, that's not what's driving the people who object to Ahmadinejad's speech.

Because the First Amendment does not literally apply to Columbia, we can reject the equation of speaker-based limits with content-based limits. But even then, it's not clear that Columbia would keep faith with principles of free speech by blocking Ahmadinejad and only Ahmadinejad. He has done some very nasty things and would like to do still more, but that's true of others who speak at Columbia. What draws the most outrage are Ahmadinejad's views, and so Bollinger was probably right to conclude that taking the extraordinary step of rescinding the invitation to speak would have been based on an objection to those views.

Saturday, September 22, 2007

Ahmadinejad at Columbia

One of my readers recently expressed dissatisfaction that I and my colleagues appear to be taking "a back seat on" the issue of Ahmadinejad speaking at Columbia, adding that "the voice of members of the faculty of CLS should be heard on this." To which I respond:

1) The issues on which members of Columbia LAW School (not the sponsor of this event) have expertise are the ones on which we have been speaking up: free speech, academic freedom and the like. In case anyone was left wondering about this, let me say unequivocally that I strongly disagree with Ahmadinejad's offensive views (e.g., Holocaust denial) and conduct (e.g., support for terrorist groups, pursuit of nuclear weapons).

2) I'm not sure that it's so important to tell Americans that Columbia faculty do not share the views of Ahmadinejad---except to mitigate the PR damage done to the university by the contrary impression they might receive from those who like to bash Columbia. But I'm happy to do my bit to correct that grotesque misimpression. (See number 1, above.)

3) In any event, more important than reaching an American audience is reaching an Iranian one. Thus, I'm happy to announce that on Monday I'll be commenting on free speech and academic freedom issues arising out of this whole episode for Voice of America. The program will be translated into Farsi and will be widely available in Iran. (My commentary will occur before Ahmadinejad's speech, which I could not attend even if I wanted to, due to a conflict with my teaching schedule and the fact that registration for it is full.)

Posted by Mike Dorf

Friday, September 21, 2007

The Horse's Mouth

Not to beat a dead horse (or insult anyone), but I heard Erwin Chemerinsky speak about academic freedom at a conference today, and I thought his remarks might be of interest to those who have followed his recent adventures. I’m not sure how much of this has been reported, so I’m going to err on the side of repeating what many of you may already know.

Chemerinsky began by sketching the timeline of events that led to his firing and rehiring. He said UC Irvine Chancellor Michael Drake offered him the position of dean on August 16 and that they spent the next few weeks negotiating terms. Then on Thursday September 6, Drake called to say that there was conservative opposition to the appointment and that they needed to talk strategy soon. Nothing happened on Friday, but on Monday morning they briefly spoke again and arranged a call for Tuesday. Monday night, Drake phoned to say he was in Washington D.C. and was flying to Durham the next morning. Chemerinsky told his wife he thought Drake was coming to withdraw the offer and to ask him to keep quiet.

Sure enough, when Chemerinsky picked Drake up at the airport on Sept. 11, the chancellor told him the deal was dead. Sitting in the lobby of an airport hotel, Drake said he wanted to issue an announcement that they had mutually agreed not to go forward with the appointment. Chemerinsky objected, saying he wanted to be honest and make clear that the offer had been withdrawn because of conservative opposition. Drake proposed that they say the offer had been withdrawn because it had become “politically controversial,” a phrasing Chemerinsky agreed to.

Chemerinsky was a little vague on what happened next. He said that “through the friend of a friend” news of the withdrawal appeared on Brian Leiter’s blog Wednesday morning. (Chemerinsky also confessed that he had never read Leiter’s blog or any blog, which helps explain his productivity.) Later that day, the report appeared on a Wall Street Journal blog, and soon he was a cause celebre. Saturday night, Drake called to say he was back in Durham, and when they met the next day he renewed the offer. Chemerinsky said he was initially skeptical, but soon accepted. An announcement was issued at 1 p.m. Monday September 17, and within a few hours, he said, he had received 1,600 emails.

In response to a question, Chemerinsky said he did not think he would have had a First Amendment claim against the school had it not renewed the offer. He had not yet resigned his position at Duke, he said, so there were no damages. He also noted that the contract he negotiated specified that he was an at-will employee and that he knew his appointment was contingent upon approval by the California Board of Regents.

I’m not sure about Chemerinsky’s analysis. It’s true he still had a job at Duke, but that doesn’t mean he suffered no damages. Presumably the dean’s salary is higher than his faculty salary at Duke, and he also might have suffered some damage to his reputation (though arguably the whole affair actually enhanced his already stellar reputation). I also don’t think the at-will nature of his employment affects the analysis. In other cases involving at-will employees, the Court has held that the government cannot punish an employee for speaking on a matter of public concern unless its interest in regulating the workplace outweighs the public’s interest in hearing the speech. I think it’s doubtful that UC Irvine has a strong interest in preventing the dean of its law school from writing opinion pieces critical of the attorney general’s position on habeas corpus and the death penalty. And the public’s interest in hearing a law school dean’s opinion on a legal question is undeniable.

On the difference between the academic freedom of a faculty member and a dean, Chemerinsky said he saw none. He said he would not hesitate to write opinion pieces in the future and that Drake has assured him he can say whatever he wants. But Chemerinsky also acknowledged that a dean has to be careful about the effect his speech has on the institution. “The fact that you have freedom to speak does not mean that you always should,” he said.

Noting that both liberals and conservatives had criticized Drake’s actions, Chemerinsky said he thought the entire episode “was a profound reaffirmation of academic freedom.” He also said he doubted that other chancellors would repeat Drake’s mistakes. I think his assessment is a bit too generous and optimistic. It’s true that many conservatives came to his defense, but that is likely because of the good will and respect he has generated over the years. I do not recall many conservatives defending academic freedom after University of Colorado Professor Ward Churchill came under attack for his essay about 9/11. And although I agree that chancellors will learn a lesson from this affair, I’m not sure it’s the one Chemerinsky thinks it is. In the future, I think, a prudent chancellor will simply not extend an offer to someone like Chemerinsky unless he’s sure there will be no opposition.

Thomas Healy

Did Justice Scalia Call Justice Thomas "a nut?"

In an interview on Fresh Air with Terry Gross (available here), Jeffrey Toobin, author of the new book, The Nine: Inside the Secret World of the Supreme Court, recounts a speech by Justice Scalia that he, Toobin, attended a few years ago. Justice Scalia was asked by an audience member to describe the difference between his judicial philosophy and that of Justice Thomas. Justice Scalia replied, according to Toobin, that he, Scalia, is "a conservative, a textualist, and an originalist, but I'm not a nut." (I'm paraphrasing but that's the quote in its essentials.) Gross asked whether Scalia was thereby saying that Justice Thomas, in contrast, is a nut, and Toobin agreed that this indeed was Scalia's implication.

Here I'd like to suggest that Toobin was both wrong and right. I wasn't at the particular speech that Toobin attended, and so it's certainly possible that the event went exactly as Toobin describes, but circumstantial evidence suggests otherwise. The line "I'm a conservative, a textualist, and an originalist, but I'm not a nut," is a part of Justice Scalia's standard "stump speech," i.e., one of the things he says in Q & A when appearing before audiences of law students and others. (I'm not saying there's anything wrong with Justices having a standard stump speech. All the Justices have one. They couldn't do their day jobs responsibly if they had to deliver completely new remarks on each occasion that they visit law schools, bar associations, etc.) Accordingly, I'd be very surprised if what happened at the event Toobin attended didn't go like this: 1) Scalia is asked the question about the differences between his judicial philosophy and that of Justice Thomas; 2) Scalia says something about Justice Thomas's judicial philosophy; and then 3) Scalia goes on a riff about his own judicial philosophy, including the "I'm not a nut" line, but when he delivers it he does not intend to be drawing a contrast with Justice Thomas. He's just describing his own philosophy. OR perhaps Justice Scalia begins with his own judicial philosophy, including "I'm not a nut," and then gets around to describing where he and Justice Thomas disagree. But it strikes me as extremely unlikely that Justice Scalia would deliberately imply that Justice Thomas is a nut.

Thus, I think that Toobin probably misunderstood the point Justice Scalia was trying to make. However, I think Toobin is right that at least an unintended implication of Justice Scalia's comment is that he thinks that Justice Thomas is indeed "a nut." What Justice Scalia means by saying he's not a nut is that even when his conservative, textualist and originalist philosophy would lead to dramatic conclusions with respect to various constitutional questions considered as matters of first impression, he nonetheless accepts longstanding precedents to the contrary. Thus, his philosophy standing alone might call for the invalidation of most federal administrative agencies or the conclusion that the Bill of Rights does not limit state government, but so ruling would be terribly destabilizing to the legal order---in a word, nuts---and thus he accepts stare decisis. Justice Thomas, he has said, does not accept stare decisis, or accepts it to a much lesser degree.

So Toobin probably misattributed to Justice Scalia an intentional allegation that Justice Thomas is a nut, but he was probably right in hearing the logical implication.

Thursday, September 20, 2007

Chemerinsky Post-Mortem, Ahmadinejad Pre-Mortem

Let's take at face value the claim by UC Irvine and its new Dean, Erwin Chemerinsky, that the original decision to withdraw the offer of the deanship was not in any way based on a desire to stifle Chemerinsky's ability to speak out on important legal issues of the day, that it was in fact all a big misunderstanding. Still, the episode raises a more general question: Is it legitimate for a university---an institution committed to principles of free speech and academic freedom---to require its administrators to avoid taking controversial positions?

The question is complicated in the Irvine case by two factors: First, most law deans are also members of their respective faculties, and thus retain whatever academic freedom they would have as such. And second, as a state institution, UC Irvine is bound by the First Amendment (as incorporated by the Fourteenth). To simplify the analysis as a matter of policy, I want to ask about a private university. I'll return to the dual capacity question below.

The issue is hardly hypothetical. At my own university, John H. Coatsworth, Acting Dean of the School of International and Public Affairs (SIPA), is scheduled to moderate a keynote address by Iranian President Mahmoud Ahmadinejad on Monday of next week. As far as I could tell, only skeletal information about the event has been posted on the university website (here), and it appears open only to invited guests (because of "security restrictions"). Based on the offensiveness and dangerousness of Ahmadinejad's stated views, not to mentions his actions, it is hard to imagine that this event will be anything but a PR disaster for the university. Just about the only thing that can be said in favor of the event going forward is that offensive and even dangerous views ought to be heard along with other views. (For just such a statement by Columbia President Lee Bollinger on the occasion of an Ahmadinejad event scheduled for a year ago that ended up not happening, click here.)

But that doesn't quite get at the question of institutional responsibility. If the event had been proposed by a student group (which, for all I know, it was), or by an individual faculty member, I would imagine that Coatsworth would have had no choice but to permit it to go forward. By serving as moderator, however, he gives the event the official imprimatur of SIPA (and to a lesser extent, the university as a whole). Perhaps Coatsworth, who is a tenured member of the Columbia faculty, is moderating in his capacity as a professor rather than acting dean. Perhaps also, he chose to moderate precisely so that he could ask tough questions that show that SIPA in no way endorses Ahmadinejad's views or actions. But if so, one would hope that, at the very least, he would make those facts known.

In reflecting on this invitation and L'Affaire Chemerinsky, I find myself somewhat more sympathetic than I originally was to the position that the UC Irvine administration formally disavows but could have been understood to be taking in un-hiring Chemerinsky (before re-hiring him): Namely, being a university administrator does not require you to forfeit your academic freedom as a professor, but it does require you to take great care to make clear to the public when you are speaking ex cathedra and when you are not. Even then, it's not obvious that the public will draw these distinctions, and to the extent that running a law school or other academic institution is partly a PR job, there may be legitimate reasons to select administrators whose public statements and actions as academics do not generate too much adverse publicity.
Or, to paraphrase a discredited line from Justice Holmes: You may have a right to academic freedom as a professor, but you don't have a right to be dean. I'm not saying this is my view, but it strikes me as a not-crazy view.

Wednesday, September 19, 2007

Leiter from the Other Side of the Fence

A further wrinkle (for those still paying attention) on the ongoing debate about Leiter rankings and whether someone like Erwin Chemerinsky can break the mold and create a great school from whole cloth:

One of the striking things about this conversation so far has been the discussion of rankings generally. There is, obviously, no consensus on how to rank schools. Various people have taken issue with Brian Leiter’s rankings, as well as the U.S. News and World Report rankings, and others. To a semi-outsider like me, however (a Canadian who’s spent years as a student, teacher, and practising lawyer in New York), what is striking is the near-unanimity about the notion of rankings. It’s worth pointing out that Americans live in a world of hierarchy to a degree that is exceptional, that they don’t always appreciate – and that is hard to square with the liberal democratic “American Dream” perspective that also characterizes the country. Perhaps, when everyone has a (theoretical) chance to be president and the country understands itself as a meritocracy, then things like rankings become all the more important as mechanisms for identifying the “meritorious.” And, if everyone in the country agrees that rankings actually signify something (even if it is only job prospects after graduation) then it makes sense that, in Mike’s words, the “ability curve” would be skewed to the right in the more highly ranked schools. Subject of course to individual exceptions and to disagreements about how to measure things, we assume the bulk of the “most talented” students, as measured by such things as high LSAT scores and strong GPAs at highly-ranked colleges, will take the “best” opportunities presented to them.

Now I’d like to point out how the same rankings make less sense in another jurisdiction. In general Brian Leiter’s ranking system makes sense to me for American schools, though I wouldn’t claim to be an expert on his methodology. This month, though, he turned his hand to Canadian schools and the results are entirely different. Full disclosure: I teach at a school that did not do well based on the Leiter metrics. However, I expect that most legal academics in Canada would find at least some of the Leiter results very surprising – if (and this is a large “if”) they were even prepared to accept that ranking law schools was a valid undertaking.

My law school attracts exceptionally strong students. Certainly, based on LSAT and GPA, our entering class this year puts the school in the top three in the country. Our faculty publishes extensively, and has particular strengths in interdisciplinary work and international work. We also live in what The Economist magazine (and again) and Mercer Human Resource Consulting have repeatedly called (more rankings!) one of the most liveable cities in the world.

However, Professor Leiter measures the quality of Canadian law students by where our students end up working. His methodology relies on factors such as “elite” law firm hiring, “national reach”, and clerkships with the Supreme Court of Canada to measure quality. Leiter’s survey is premised on the idea that hiring patterns reveal employer preferences based on the strength of students, rather than student preferences about careers and geography. However, law firms in Canada do not actually seem to prefer some schools to others for “elite” reasons, apart from perhaps at the margins. These measures are biased toward a view of what success means (e.g., working for certain firms, willingness to leave Vancouver) that does not work for our students. Their impressive entering credentials and national career opportunities notwithstanding, a substantial majority of our students choose to remain in Vancouver after law school. This is a choice that likely has more to to with lifestyle preferences, and less with prestige and the desire to work very hard on corporate deals on Bay Street (Canada’s equivalent of Wall Street) – or, indeed, on Wall Street. In fact, the competition is such that it reportedly takes a higher law school average to land a job at a large firm in Vancouver than in Toronto, which has a substantially larger legal market in every sense.

At the national level, Canadian law student career choices are also affected by the lower cost of education in Canada. Students attending the costliest American schools may graduate with debts running into six figures. Many of those have little choice but to accept well-paying associateships at elite law firms to pay off their student debts. By contrast, even the most expensive Canadian law schools still charge substantially lower fees, which means that graduating students’ career choices are less restricted.

Factors such as clerkships with the Supreme Court of Canada are also skewed by Canadian history and politics: by convention, three of our highest court’s nine judges should hail from Quebec. This means that students from Quebec, bilingual students, and/or students who have had exposure to both common and civil law systems have a strong edge in landing clerkships. Clerkships are also subject to geographic proportionality considerations that do not prevail in the United States. We can expect, for example, that some loosely-defined but fairly stable number of slots will go to western Canadian law students each year. The clerkships, if rotated through the various western Canadian law schools fairly equally (which, anecdotally, seems to happen), tend to give an edge to smaller law schools on a per capita student basis. My law school is the largest in western Canada.

(While I’m at it: on faculty quality – and leaving aside that the rankings divided our research productivity among 48 faculty members when in fact there are only 40 of us – Professor Leiter has measured faculty research productivity by focusing only on citations in certain indexed Canadian law journals. This measure of research productivity is biased against global law schools, like mine, where faculty members are actively involved in scholarship and research in Japan, Australia, the United States, and other countries. The measure also works against schools with faculty members who are committed to interdisciplinary research.)

I can’t say for certain that relative to any other Canadian school, my school has been disproportionately mistreated by the Leiter metrics. What I can say is that, more fundamentally, Leiter’s metrics may not translate well to Canada because Canadian schools, and Canadian students, are not in the thrall of hierarchy to the same degree as their American counterparts. The rankings would be more valid if we assumed that a substantial proportion of our law students behaved as though the factors measured by Professor Leiter matter, and took advantage of the most highly-ranked opportunities available to them. However, my experience suggests that this is not the case in Canada to the degree that it is in the United States. (The exception is probably the University of Toronto. U of T, along with being an excellent law school, is the one school in Canada that has made a conscious and energetic push to assess its performance on American-style standards and to place itself on par with the top American schools. Its students’ choices are likely to reflect the effect of that institutional culture.)

Maybe it’s because this is a smaller country – maybe it’s a cultural effect of the relatively greater historical impact of socialism in Canada – maybe geography continues to trump other factors in our fractured nation-state – or maybe it’s because the band of opportunities in Canada is narrower, there is very little “celebrity culture” for lawyers and legal academics, and the most successful among us are not so different from our “mediocre” colleagues. I could list myriad plausible suggestions for what amounts to a subtle but profound difference between the two countries. But the point is that Canadian law schools, like Canadian universities and Canadian law firms and Canadian society generally, seem to be substantially less focused on ranking and hierarchy. Why Americans take rankings so seriously is something worth thinking about.

Cristie Ford

A (slight) technical improvement to this blog

From time to time I receive credit (or more rarely blame) for some of the posts on this blog that are by other authors. I suppose this is mostly my own fault for calling the blog "Dorf on Law," but it's also party due to a Blogger/Feedburner limitation. Although the web version of the blog automatically lists author names at the bottom, the email version does not, so email subscribers sometimes incorrectly assume that all posts are by me. To remedy this problem, I'm asking all of my fellow bloggers to note their authorship in the body of their posts. I'll do the same.
--posted by Mike Dorf

Tuesday, September 18, 2007

Technology and Antitrust

I taught Bell Atlantic v. Twombly to my civil procedure students yesterday and encountered a fact that was astounding to me and reveals that the underlying antitrust dispute was about something of decreasing importance. For those not familiar with the case, it involved a class action against the successors to the "baby Bells," claiming that they had engaged in a conspiracy to carve up the market for local telephone service so that each maintained a monopoly in its own region. The suit was dismissed on the ground that it contained insufficient factual allegations to support an inference of a conspiracy (as opposed to merely uncoordinated but individually rational behavior), and has become an important (and perplexing) precedent regarding the sufficiency of a complaint under the Federal Rules of Civil Procedure. (See my FindLaw column on the case here.)

As we were discussing the facts, I asked how many of the students used their mobile phones as their only phones. The answer that stunned me (but probably shouldn't have): 28 out of the 31 have no land line. This is not a scientific survey, obviously, and students are probably especially unlikely to have land lines if they have reliable mobile phones, but I strongly suspect it represents the wave of the future. Older and middle-aged folks like myself will continue to have land lines, but with each passing year, we will become more of a niche, like the market for network tv news or printed books.

This, in turn, may provide at least some partial vindication for those who want to minimize the role of antitrust law in areas of rapidly changing technology. While it is no doubt true that a monopolist can slow down innovation (as Microsoft's practices with its operating system and related apps have allegedly done), monopoly pricing will prove self-destructive in the long run if it encourages consumers to switch to substitute technologies outside the monopolist's control.

I'm not saying I completely buy this argument. For example, I'd want regulatory scrutiny of a proposed local phone company purchase of the cable company in its area, giving it control of the two principal land line methods of delivering signals. I'd want to see even more such scrutiny if that phenomenon were combined with severe concentration in the mobile network provider market, especially if the mobile networks are owned by the same companies that provide phone and cable lines.

Still, the overall pattern in both the OS market (as discussed in a NY Times story on European antitrust litigation against Microsoft here) and the market for voice and data communications, suggests that by the time antitrust litigation catches up with monopolists (and oligopolists), competing firms may have created substitute technologies that generate effective competition.

BREAKING NEWS: Chemerinsky to Serve As PM in Power-Sharing Accord With Musharraf

(Just kidding. But now that you've been lured into reading a post about Pakistan....) As I briefly noted last week, General Pervez Musharraf rather quickly dashed former Prime Minister Nawaz Sharif's hopes of a triumphal homecoming last week. After throwing hundreds of leaders and other supporters from Sharif's political party in jail to prevent them from organizing a big welcome, Musharraf's regime acquiesced to the invited entreaties of the Saudi intelligence chief by taking Sharif into custody at the airport in Islamabad, hustling him into an awaiting aircraft, and rendering him to Saudi Arabia.

Pakistani officials seemed to have some difficulty getting their story straight on exactly what transpired:

  • Prime Minister Shaukat Aziz: "'We did not force him to return. I have been told that he was given two options -- either to go to prison or proceed to Saudi Arabia,' the prime minister said in a live interview with a private television channel on Monday evening." [link]

  • Information Minister Mohammad Ali Durrani: "Nawaz Sharif has gone to Saudi Arabia according to the same agreement that took him there earlier." [link]

  • Musharraf backer Chaudhry Shujaat Hussain: "A few hours after the event, on the evening of 10th September, the PML (Q) chief Chaudhry Shujaat Hussain appeared on Geo television and disingenuously announced that the deportation had taken place entirely at the behest of the Saudis. And further, that while he and his party had demanded that Nawaz Sharif be given an unobstructed right of return to Pakistan, the written request of the ‘Custodian of the Two Holy Mosques’ had rightly been given precedence over domestic concerns." [link]

  • • Pakistan's Foreign Ministry: "When asked whether it was not paradoxical that on one hand the government criticised statements from foreign capitals on Pakistan’s domestic affairs and on the other hand it solicited intervention of other countries in its internal political issues, the spokesperson said: 'We do not accept foreign interference in our internal affairs as we do not interfere in the internal affairs of other countries. This is an accepted, recognised international norm. As regards the ongoing events, well this is not in my domain. I would suggest you seek comments from other government spokespersons.'" [link]

Sharif is now once again a "guest" of the Saudi royals in Jiddah -- a "guest," that is to say, who apparently is being held incommunicado in what seems best described as "house arrest."

Whatever else one might say about this sordid affair and its flawed protagonists, to say that Sharif was "deported" -- as the Musharraf regime and most mainstream media have largely characterized the expulsion -- doesn't seem quite the correct way to put it. "Deportation" connotes the orderly explusion of a non-citizen pursuant to some sort of lawful, regularized process. Sharif, however, is a citizen of Pakistan who, as the Supreme Court of Pakistan explicitly said only weeks ago, has an "inalienable right to enter and remain" in his country of citizenship. Even assuming that the new corruption charges slapped upon Sharif at the airport have some merit, an assumption which certainly doesn't require one to stretch the imagination all that much, the normal approach would of course be to try him on those charges in Pakistan, rather than to summarily banish him without trial to Saudi Arabia, where he hasn't been charged with anything. And the process by which Sharif was expelled to Saudi Arabia -- which seems to bear a family resemblance to the process by which one gets on a flight booked with Jeppesen International Trip Planning -- was anything but orderly and lawful, as the many journalists and supporters who accompanied Sharif from London to Islamabad witnessed and recounted:

The authorities moved clumsily but quickly. Hospitality was swept aside. New charges of corruption were made against Mr Sharif and he was manhandled away. The Pakistani Government claims that he chose a return to exile rather than detention. The tea cups and biscuits were ground underfoot. Aside from a few scuffles and shouted insults, the test of strength was over in seconds. [link]

Human Rights Watch maintains that Pakistan and Saudi Arabia "have flouted international law by forcibly transferring Nawaz Sharif into exile." Some Pakistani lawyers and human rights advocates have gone even further, arguing not only that Musharraf's government should be held in contempt of court for violating the Supreme Court's order that Sharif be permitted to enter and remain in the country, but even that the individuals responsible should be criminally charged with kidnapping:

Legal experts and lawyers representatives, terming it an open violation of the Supreme Court's orders to send Mian Nawaz Sharif forcibly to Saudi Arabia, said the PML-N chief was abducted by Pakistani authorities since no Pakistani citizen can be deported under any law. The experts maintained that, according to section 363 of [Pakistan Penal Code], the military dictator can be punished with seven years imprisonment for sending Nawaz Sharif beyond the limits of Pakistan without his consent. [link]
* * *

Is the hidden hand in Sharif's expulsion that of the office of the Vice President? The Musharraf regime has denied that the U.S. government played any role in Sharif's rendition, and officially, Washington regards Sharif's transfer from one allied country to another, across international airspace, as an "internal matter" for Pakistan. Yet, the sequence of events in this episode remains remarkably odd:

Believing in silent diplomacy and enjoying extremely good relations with Pakistan and its people, Riyadh not only sent its intelligence chief to Islamabad, but also asked it to re-exile Sharif as soon as he lands.

On the very day when Sharif was exiled, [Musharraf ally] Chaudhry Shujaat [Hussain] admitted in a Geo News talk show that not only he, but Musharraf was also of the view to allow Sharif's entry into Pakistan.

Shujaat, however, disclosed that still the former premier was exiled because of Saudi rulers' insistence that Sharif should be deported back to Riyadh. [link]

Reports of Washington's involvement have abounded:

In the case of Sharif's exile, some Middle Eastern countries had seriously tried to blackout the event that was being broadcast by private Pakistani television channels.

A journalist in one of these countries was clearly told by the local authorities that they are under pressure from Washington to do this.

Former Prime Minister Sharif initially wanted to come to Islamabad after seven years of exile via Dubai, but changed his mind after being warned that the Dubai authorities might divert him to Riyadh because of American pressure. [link]

And at least one unnamed Bush administration official could barely contain his glee at Sharif's rendition:

One Bush administration official, declining to be identified because he was not authorized to speak publicly about the issue, said the deportation was “not necessarily the worst thing that could happen.” While the United States is loath to appear publicly as if it is interfering in Pakistan’s politics, the Bush administration has been urging General Musharraf to agree to a power-sharing deal with another former prime minister, Benazir Bhutto. . . .

The Bush administration official said that one hope now was that General Musharraf’s strong move against Mr. Sharif would enable him to stand up to Mr. Sharif’s allies in Pakistan and go ahead with the power-sharing deal. [link]

Regardless of whether the United States had any involvement, the whole episode seems to reflect rather poorly upon the State Department. Lots of U.S. taxpayer money gets spent every year on rule of law initiatives in Pakistan, and yet, when the Musharraf regime brazenly undermines the rule of law by openly defying a major ruling by the Supreme Court of Pakistan -- which, with the support of many lower court judges and large segments of the Pakistani bar and civil society, has been exhibiting as much integrity and independence as at any time in its history -- senior State Department officials proceed with high-level meetings with Musharraf as if nothing of concern had happened at all.

An even greater reckoning may be right around the corner:

Now Justice Chaudhry has set up a nine-member panel of Supreme Court judges to begin hearing two constitutional cases against Musharraf: the first disputing his right to seek re-election, the second his right to continue in high political office while heading the army.

Either could prevent Musharraf from staying in office beyond the next few weeks, in which case allies say he is ready to impose full military rule. “If the court confronts me, I’ll definitely use the option of martial law,” Musharraf told a senior party member recently, the newspaper said. [link]

What will our gleeful, unnamed Bush administration official be saying if that happens? And the State Department?

Monday, September 17, 2007

Dorf on Leiter on Althouse on Dorf on Chemerinsky, or Am I Really an Arrogant Snob?

My skepticism about what Erwin Chemerinsky could accomplish as the dean of a not-yet-established law school led to numerous outraged comments on my blog and led Ann Althouse to accuse me of being an elitist snob. Brian Leiter, who rarely agrees with Althouse about anything, agreed with her about this, although Brian did note that I seemed sensible in the comments replying to similar points by readers. Meanwhile, the law world has moved on to more important matters, including the nomination of Judge Mukasey to be Attorney General and, more directly to the point, the decision by UC Irvine to make Chemerinsky its dean after all! (See press release here.) So first, I'll congratulate Erwin and UC Irvine. I hope they both prove me wrong and do indeed create what they say they desire: "one of the finest law schools in the country."

Now onto the much less important question. Is Althouse right? Am I an elitist snob? Part of the problem here is that the word "mediocre" can be used to mean either "average" or "crappy." I meant it in the former way but apparently Althouse and others assumed I meant the latter. Here is what I said in the comments section in response to a similar accusation from a reader identified as "Sally" who asked whether I could be "this arrogant and elitist."
In response to Sally, I'll just say that, yes, I am this arrogant and elitist if what you mean by that is that I believe that, on average, students selected for admission to the most selective schools turn out to be better lawyers than those from less selective schools. This does NOT mean that the less selective schools (which I'll use synonymously with "mediocre") produce no excellent lawyers or accept no excellent students. When I taught at Rutgers-Camden for three years I had a good number of terrific students who were every bit the equal of my Harvard classmates and my Columbia students. Some came to Rutgers for the lower tuition, others because they were tied to the area (although that alone is not a sufficient explanation for choosing Rutgers over Penn), and still others were simply very bright people who either under-performed on standardized tests or had not worked all that hard as undergrads. But the bottom line is a claim about the average student and there is no question that the "ability curve" is shifted to the right at the elite schools. That's my observation from having taught hundreds of students at Rutgers and thousands at Columbia.

Now, one can still say that success on law school exams and seminar papers doesn't foreordain success in the world of practice, and that there are even some lawyering skills, such as negotiating, that students at less elite schools are likely to have in greater abundance (because of some claim about "street smarts.") But, to reaffirm my arrogance and elitism, I stand by the claim that the single most important desideratum of good lawyering is analytical ability. (A good work ethic is surely important too.) When admissions offices at elite schools do their job well, they detect that ability in students who may have lacked various advantages, so this is NOT a claim about how analytical ability correlates with prior life experience, background, etc.

Finally, even if I'm wrong about what, on average, produces good lawyers, I feel especially confident that the legal profession is, as a matter of observed social fact, quite prestige-conscious, so that innovations not adopted by prestigious institutions will not likely catch on.
Althouse also raises (and Leiter appears to endorse) a different objection: Why should someone have to have an impact on legal education as a whole rather than just one institution to want to lead that institution? To which I respond: Of course one could want to shape legal education (or anything else) just in one's home institution, but that doesn't make sense of Chemerinsky's move. He had no prior tie to UC Irvine, and so no special reason to want to make the best possible law school there in particular. His professed reason for wanting to start from scratch was to escape the path-dependent shackles of existing commitments. The point of my prior post was to say that building a school that is nationally recognized for excellence---a goal that Chemerinsky and the Chancellor now publicly tout---to an important extent works against the sort of wholesale innovation that would make it interesting to start a school from scratch.

Sunday, September 16, 2007

Did Chemerinsky Dodge a Bullet?

When I last saw Erwin Chemerinsky I asked him why he wanted to be the dean of a new law school. He was enthusiastic in response, talking about the opportunity to place his stamp on legal education as the founding dean of the UC Irvine Law School. I was skeptical and remain so. Chemerinsky has enormous talent and energy but I sincerely doubt that anyone could change legal education significantly without buy-in from the faculty of an already top law school.

Even solid but middling-ranked law schools can have at best a marginal impact on the course of legal education as a whole because no matter what they do to improve the actual outcomes for their students, they won't attract the very best students---and I doubt that, on average, an excellent innovative education for a mediocre student will produce better lawyers than a pretty good traditional education for excellent students. This explains why Yale Law grads---many of whom learn virtually no law at all while in law school---prove to be excellent lawyers; they have the credentials coming in.

Thus, to have an impact on legal education as a whole (as opposed to in one's own school only), the founding dean of a new school must first create an excellent school, and that's not easy to do. Perhaps a top-flight university without a law school (Princeton is the obvious example) could create a new law school that would instantly be top-ranked. But to create an excellent law school at UC Irvine---or even one that would compete for students with Boalt, UCLA, Hastings, and UC Davis---requires, at a minimum, tons of money. A prospective student faced with a choice between UCLA and UC Irvine will undoubtedly choose UCLA unless lured to Irvine by the promise of reduced tuition, free room and board, etc. Thus to boost the numerical qualifications of students, and thus US News rankings, Irvine would need to "buy" students for a number of years until the trend became self-sustaining.

The same goes for faculty. Top faculty are not going to relocate to an unknown entity without the promise of something. A lot of money might be enough for some, but for others there will be other requirements, including such things as light teaching loads or the promise of the ability to teach courses they've taught in the past. The latter sort of promise would then work against curricular innovation.

I don't know exactly how much money it would take to establish UC Irvine as a top-flight law school, and thus one that could be a leader in legal education more broadly, but I suspect the university doesn't have enough. I also have real doubts about whether the strategy I have outlined would be the best use for a giant barrel of money in the UC system. In any event, we're especially unlikely to see progress on this front with Chemerinsky out of the picture. The adverse publicity from this episode will make it that much harder for UC Irvine to establish itself as a good law school, much less a national leader.

Saturday, September 15, 2007

The Terror President

I’ve finally had a chance to read Jack Goldsmith’s book, The Terror Presidency. Contrary to the publisher-driven media and blogosphere buzz, it is neither a hack job on the Bush Administration nor a tell-all mea culpa about torture and wire-tapping. It is more of a parable about how a “go it alone” philosophy can backfire like no other philosophy. Goldsmith headed the Office of Legal Counsel right after his “friend” John Yoo held the post. He had the ignominious responsibility of pulling back and revising (for the sake of everyone’s credibility) Yoo’s “sloppy,” “flawed, tendentious in substance and tone, and overbroad” 2003 opinions regarding interrogation techniques. Goldsmith doesn’t express much worry about the victims of any such interrogation, but he’s keenly aware of how precarious authority, trust, and credibility all are and showed determination in trying to preserve them.

Goldsmith is the Henry Shattuck Professor at Harvard now. He made his academic name cautioning against “universal jurisdiction” and the application of international law in U.S. courts while teaching at Chicago. That was before his stint in the Bush Administration. It took Goldsmith’s determination to pull the torture opinions and revise them because apparently there were many in the administration who adamantly opposed him and wanted the cover OLC opinions provide. (David Addington, John Bellinger, and some others are referenced throughout the book for their especially idiotic, chauvinistic, and dangerous views.) (Goldsmith’s words, not mine.)

But Goldsmith is undaunted. Comparing this President to Roosevelt and Lincoln (unfavorably—as any sane person must), he says Bush’s big misstep has been that he wasn’t as magnanimous as those Presidents. Lincoln and Roosevelt reached out to Congress and our allies symbolically and informally, even if they occasionally acted unilaterally. Goldsmith even argues that law and lawyers have given us Washington's dysfunctional culture. The Presidency must be unencumbered by legal restraints. Especially now that we face Islamic terrorism, he argues, Executive officials cannot be guided in their choices first by lawyers and second by strategy. That Bush has been a zealot on this is why we haven’t had an attack since September 11, “an accomplishment that seemed impossible on September 12, 2001.”

I watched the towers fall from Columbia’s bridge over Amsterdam Ave. I distinctly remember convincing myself that my wife, who watched from her office window as the second plane hit, would be fine. I wasn’t sure if my law school roommate and good friend made it out alive until the next day. For a time, I couldn’t take anything seriously and gave real thought to joining a friend in the General Counsel's office at CIA. But today I watch as more and more of my students get shipped out of school and into harm's way. Goldsmith’s role in this administration sounds like that of a small brake, doing little to slow a very big train of bad decisions. But he is mistaken if he thinks we will restore our nation’s good name on the path to which his academic work is still pointing. Having a President governed by law does something magnanimity cannot: it sets us apart as an idealistic people.

Friday, September 14, 2007

O.C. goes P.C. on E.C.

"O.C." of course stands for Orange County, the home of U.C. Irvine, whose brand new law school is sorely testing Mark Twain's maxim that there's no such thing as bad publicity by making headlines before a single student has enrolled, through the firing, just days after the hiring, of founding dean Erwin Chemerinsky ("E.C."). If I didn't know Chemerinsky as well as I do, I would assume that the powers that be at Irvine had discovered some skeleton in his closet, like an outstanding warrant for dealing crack or a secret life as a mafia hit man. That's because the official explanation is so transparently idiotic. First, University Chancellor Michael Drake said that he had gotten heat from conservatives (presumably alumni?) who thought Chemerinsky too liberal. Then, perhaps realizing that a state institution might be in legal trouble for rescinding a deal based on the political views of an employee, Drake backtracked and said it wasn't the substance of Chemerinsky's views so much as the fact that he was publicly outspoken. Quoted in a L.A. Times story (here), Drake expressed disappointment that on the very day that Chemerinsky was offered the job, he authored an Op-Ed critical of the Justice Dept's handling of capital cases. Drake said:
we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn't the subject, it was its existence. What he said doesn't matter."
This is so unbelievably stupid that it can only be a lie. If Drake meant Chemerinsky wouldn't have time to devote to "political" causes while serving as dean, he obviously doesn't know Chemerinsky. Nor is there any inconsistency between personal outspokenness and deaning. A law school dean is not a judge, and even some judges (e.g., 7th Cir Judge Richard Posner) are extremely outspoken when writing in their personal capacities. So long as it is clear that a law school dean is speaking for himself as a scholar rather than on behalf of his institution, there's absolutely nothing wrong with his taking public positions. Yale Law School Dean Harold Koh has been a vocal critic of various Bush Administration policies lately, and that certainly hasn't harmed the reputation of Yale. Closer to Irvine and on the conservative side of the political spectrum, Pepperdine Law Dean Kenneth Starr has (quite properly) not scaled back his public activities since assuming the helm there.

Accordingly, it would appear that the only plausible explanation for UC-Irvine's decision to can Chemerinsky was the first one given: pressure from the political right. I'll have more to say about this episode in coming posts, but for now I'll just ask readers to keep it in mind the next time someone denounces universities as hotbeds of left/liberal political correctness.

Wednesday, September 12, 2007

The Holistic Bill of Rights and the Ninth Amendment

In my FindLaw column today I argue that despite some flaws in its reasoning, Judge Marrero's ruling invalidating the gag order provision of the Patriot Act sensibly uses interests protected by the Fourth Amendment to bolster protection under the First Amendment. However, I note that this sort of "holistic" approach to the Bill of Rights, while sensible, is arguably inconsistent with the Supreme Court's ruling in Zurcher v. Stanford Daily. There the Court held that the fact that a search target was a newspaper could not be used to increase the level of Fourth Amendment protection it received.

In my FindLaw piece, I say that the Supreme Court's one-right-at-a-time approach is inconsistent with the original understanding and with the approach canonically favored by Justice Harlan in his Poe v. Ullman dissent. Here I want to suggest a further problem with this approach: It violates the spirit of the Ninth Amendment. Conservative judges and scholars hesitate to give the Ninth Amendment its most natural reading---protecting unenumerated rights---because they worry that once unmoored from the textually protected rights, courts will simply use the Ninth Amendment as a license to displace value judgments by the people's elected representatives with their own value judgments. Whatever the merits of that point, there is---or rather there should be---a different and less controversial use of the Ninth Amendment: It can act as a guide to the interpretation of the enumerated rights.

Although expressly concerned with the rights not enumerated, we can also read the provision to say something like the following: "Don't get all hung up on the exact wording of these rights." On this account, the "other[ rights] retained by the people" to which the Ninth Amendment refers include rights at the boundary of the enumerated rights. Using the Ninth Amendment to "interpolate" in this way (a term Larry Tribe and I used in our book On Reading the Constitution) should be less controversial than using it as the basis for "extrapolating" to other rights, because it is, to continue the spatial metaphor, closer to the enumerated rights, and thus less likely to give vent to judges' personal values.

Mind you, I'm not saying that extrapolation is illegitimate. I'm simply saying that if one worries that extrapolation runs counter-majoritarian risks, one need not worry (nearly as much) about interpolation. Thus, a right that falls somewhere between the First and Fourth Amendments could be cognizable by the courts even if it doesn't fit exactly within either Amendment standing alone.

Tuesday, September 11, 2007

Unitary Executive Versus Commanders Guy

As I noted yesterday, President Bush's claim that he is a "commanders guy" is disingenuous and, if true, a betrayal of his responsibility as Commander in Chief. Here I want to note a tension between the "commanders guy" pose and the Bush Administration's genuine commitment to the unitary Executive. Among other things, the unitary Executive theory holds that the President must be capable of exercising ALL of the nation's executive power, which he does by directing the operations of executive branch officials. This Administration has shown its fondness for the unitary executive theory by disciplining wayward prosecutors and by running a great deal of the business of administrative agencies from the political office of the White House. Yet a "commanders guy" in domestic affairs would take just the opposite approach, deferring to professionals in the Justice Department on matters of prosecutorial priorities, deferring to the scientists at EPA and NASA on global warming, and so forth.

Is it possible to be a commanders guy with respect to some but not all parts of the federal government? Sure. A President who had special expertise in some area (e.g., Eisenhower on military matters, Carter on nuclear policy, Bush 1 on foreign relations) might choose to be more hands-on in that area and more of a commanders guy in other areas. But that principle can't explain the difference between the current President's professed preference for commander guy-ness in military but not civilian matters. He has no special expertise in all civilian matters that he lacks in military matters. Interpreting his record charitably, we might think that as a business school graduate, Bush 2 would defer less to experts on matters related to regulation of the economy than other matters. However, we see no such pattern.

Moreover, from a constitutional perspective, the one area least appropriate for a President to defer on grounds of non-expertise would be military matters, where the Constitution expressly makes him Commander in Chief, precisely to preserve the vital principle of civilian control of the military. So one could plausibly be: 1) a commanders guy and a Cabinet Secretaries guy, or 2) neither a commanders guy nor a Cabinet Secretaries guy; or 3) a commanders guy and a Cabinet Secretaries guy except in a few areas; but not the one thing Bush claims to be: 4) a commanders guy but not a Cabinet Secretaries guy at all. But since Bush is not in fact a commanders guy despite claiming to be one, his actual position--number 2)--is coherent. Phew.

Monday, September 10, 2007

The Commanders Guy

The report to Congress by General Patraeus is a good occasion to reflect on the proper relationship between civilian elected officials and the military in wartime. President Bush famously declared earlier this year that he's a "commanders guy," by which he meant that military commanders in the field are better positioned to make military decisions than politicians in Washington. It's hard to know where to begin with this one, so I'll simply make three observations.

Observation No. 1: Bush is not in fact a commanders guy when it counts. The current surge was designed by the White House and resisted by many of the military commanders (not to mention the troops) and perhaps more importantly, at both the inception of the war and at later points, commanders whose professional judgment (about such matters as initial troop strength) differed from those of the civilian leadership were overruled and/or replaced by other commanders who agreed with the President's policy views. Since 2004 Petraeus has been publicly saying that victory may be just around the corner so let's not give up yet, but he is only the latest example of a commander selected for views similar to those of the President so that the President can then defer to those views. This does not mean that Petraeus is insincere in his views, but it does undermine the claim that Bush simply follows the advice of the professional military on matters military.

Observation No. 2: The political angle in the President portraying himself as a commanders guy is obvious. With the public distrustful of his own judgment, the President can do better by ascribing his views to military professionals. This works for members of Congress too, although it's harder for them because they don't stand in the chain of command. Accordingly, in opposing the President's policies, Congress tends to turn to retired officers. Last month, seven active-duty troops (six sergeants and a specialists) co-authored a NY Times Op-Ed that essentially argued for a redeployment along the lines proposed last year by the Iraq Study Group, even while pledging to carry out the official policy to the best of their ability. Writing the piece took great courage but also raises real questions about the propriety of active-duty soldiers questioning the wisdom of orders their orders. One cannot and should not count on this sort of statement occurring very often.

Observation No. 3: It's not clear that it makes sense for a President to be a commanders guy. Obviously, there is a limit to the extent that a commander in chief can or should try to micro-manage a war. Our last President with the sort of knowledge to make day to day military decisions was Eisenhower, and even he could not run every aspect of military operations, for the same sorts of reasons that CEOs can't run every aspect of the companies they manage. But acknowledging that limit, it remains the job of the President to make the big decisions, and in doing so there will sometimes be reasons to doubt the judgment of the commanders. Most famously, Lincoln was endlessly frustrated with the unwillingness of General McClellan to attack the Confederate Army. McClellan's concern for troop safety and morale made him a favorite of the troops but as Commander in Chief Lincoln was entitled to think that preserving the Union and bringing the war to an end sooner rather than later should be given higher priority than troop morale or even than avoiding casualties.