Damned if you do . . . .

In response to my post about how a social worker whose job is to discern the wishes of people who die alone probably killed the creatures the deceased cared about most (her dogs), I received an email pointing me to another horror story, this one perpetrated by the Department of Children's and Family Services (or whatever DCFS stands for) in Chicago against the parents of a baby with unexplained broken ribs. It makes riveting reading on the Lag Liv blog, authored by a University of Chicago law student and mother. (Go to the October Archives and start reading at Oct. 5. The saga continues for months.) To make a long story short, this is pretty clearly a case of bureaucrats run amok. A doctor and various social workers conclude that the baby's injuries are the result of abuse at his parents' hands---based only on the injuries---and then stick to that conclusion even as the evidence mounts that the injuries arose during delivery. But read it for yourself for the full horror show.

The story, in my view, undercuts a familiar canard. Children's protective services, the canard goes, are stuck between a rock and a hard place: If they intervene when they shouldn't, they cause heartbreak to parents and children alike (and take a child from a safe environment to one that may actually be dangerous, foster care). Yet if the agency waits too long, it makes itself complicit in actual cases of abuse. Damned if they do; damned if they don't.

The reason this picture is a canard is that most of the truly horrific cases---including cases of overzealousness and gross indifference---are simply obvious. The Chicago law student/mother is not objecting to a protocol that, while generally effective at protecting children, is irreducibly overinclusive. She objects, quite rightly, to a defective protocol. Yes, in theory there are circumstances where decreasing type 1 errors leads to more type 2 errors and vice-versa. But in the real world, organizations that tend to make type 1 errors also tend to make type 2 errors. To say in response to people like the Chicago law student/mom, "the type 1 error in your case is regrettable but the justified cost of avoiding horrific type 2 errors" is often just an excuse for failing to take steps to try to reduce both kinds of error.

Posted by Mike Dorf

George Bush's War

In my role as amateur film critic, here are a few thoughts inspired by Charlie Wilson's War. "Based on" a true story, the film depicts one Congressman's successful effort to gain covert funding for supplying sophisticated weaponry to the mujahideen forces in Afghanistan fighting the Soviet occupation. In retrospect, of course, U.S. backing of the mujahideen has been cited as an example of the law of unintended consequences: The very people we armed and trained to fight the Russians in the 1980s became the Taliban and al Qaeda in the 1990s, turning their attention (at least in the case of the latter) to the U.S.

Charlie Wilson's War lets Congressman Wilson himself off the hook for this particular bit of blowback by showing Wilson, after the defeat of the Soviets, vigorously but vainly campaigning for aid to rebuild Afghanistan's civilian infrastructure. Instead, we ignored Afghanistan as it descended into civil war and worse. The lesson, it seems, is that had we only ponied up some money, things would have turned out better.

There is a certain logic to this perspective. Failed states, the theory goes, are breeding grounds for extremists and terrorists. That's undoubtedly right, but not the whole story. Saudi Arabia is not a failed state (in the sense used here); yet it was the breeding ground for most of the 9/11 hijackers. Likewise, some of the most dangerous radicals have lived many years in Europe. Failed states are good places to base terrorist training camps (because without an effective government, there's no one to shut down such camps), but recruits can come from almost anywhere, it appears.

Moreover, if one grants that the way to have averted the Taliban's rise to power was for the U.S. to have provided material support to Afghanistan in the late 80s and early 90s, it seems to follow that the way to prevent Iraq from becoming a failed state is for the U.S. to do the same there now. And because civilian reconstruction can't really proceed without better security, that implies a long-term military commitment. Which may well be right, even though it's a Bush Administration talking point.

I'm inclined towards something more like chaos theory, however. Supporting the mujahideen seemed like a good idea at the time, both on humanitarian grounds and as a way to hasten the demise of the Soviet Union---even though there were real risks in affiliating with people inclined towards theocracy. Whether it will ultimately prove to have been a mistake is not really knowable, because we can't run history through the other way. Likewise with Iraq. Perhaps in the long run the U.S. invasion of Iraq will prove the salvation of mankind, if only through some bizarre twist of fate: E.g., it ends up triggering a wider war in the Middle East, spiking oil prices, thus making cost-effective various petroleum alternatives, leading to the discovery of energy sources that do not contribute to global warming.

Indeed, this sort of alternative is suggested by Charlie Wilson's War itself, in the form of a famous Zen parable that the film re-tells: A farmer boy finds a horse and the villagers cheer his good luck. The Zen master says maybe. The boy falls off the horse and breaks his leg, so the villagers curse his bad luck. The Zen master says maybe. War breaks out and because the boy has a broken leg, he avoids being drafted into the army, so the villagers cheer his good luck. The Zen master says maybe.

So too with Iraq. We don't know how things will ultimately turn out. We do know that the people who sold us this war have been wrong about just about everything so far. (The surge is not an exception, at least not yet. Few knowledgeable people doubted that violence could be suppressed with a larger deployment. The question, still completely unanswered, is what would happen when those extra forces are eventually withdrawn.)

Posted by Mike Dorf

Murder in Rawalpindi

From Rawalpindi comes shocking news that Benazir Bhutto has been assassinated. Many details remain uncertain, but the horrific basics are clear enough:

Benazir Bhutto was killed at a PPP rally in Rawalpindi [along with at least 30 others]. . . . The election rally, with “foolproof security”, was held at Liaqut Bagh - a site which had already seen the assassination of another Prime Minister of Pakistan, Liaqut Ali Khan.

There were earlier reports of security threats on her rally - similar reports were issued before the suicide attack on her in October. [link]

Sadly, the South Asian subcontinent has been down this road before. More than once, in fact -- but one moment stands out as eerily reminiscent:

[An] heir to a miraculous name, disappeared in a fiendish conjurer's trick: amid the theatrics of an electioneering stop, and in the puff of smoke from a bomb... Apart from the egregious act of violence that killed [the former Prime Minister], the bloody shirt of extremism and communal vengeance has been threatening to supersede all norms of democracy in the nation. [link]

So wrote Time in 1991, when another former prime minister (Rajiv Gandhi, in India) was killed on the campaign trail by a suicide bomber. During the late 1980s, Gandhi and Bhutto together were regarded by many in India and Pakistan with a fair bit of hope. Youthful and energetic, the two "got along famously" in their first summit meeting and were seen by many as ushering in generational change, a new set of leaders capable, together, of moving the subcontinent in different directions. The days of such extreme optimism passed long ago. But tragically, both of them now are linked with each other in death as well.

When Rajiv Gandhi was assassinated, some observers fretted over the "uncertainty" and the "leadership vacuum" that his death may have created within the Congress Party, much as they fret today over the future of Bhutto's Pakistan People's Party and democratic leadership in Pakistan more generally. The circumstances are by no means identical, but certainly one need not lose all hope that democratic leaders can and will emerge in Pakistan in the aftermath of this tragedy, that the prospects for democracy in Pakistan did not rest on Benazir Bhutto's shoulders alone. Indeed, the lawyers' movement and the vigorous resistance of Pakistan's civil society to Musharraf's Emergency demonstrate that many such leaders already are present -- that the mainstream, democratic instincts and aspirations in Pakistan may well be durable enough to survive the assassination of one charismatic and pioneering leader. If, that is, those instincts and aspirations are given space to flourish, rather than simply to grasp for dear life. One can only hope that going forward the United States will belatedly recognize this fact, nurturing and supporting the democratic processes and civil society institutions that have been producing those leaders, rather than simply propping up particular personalities, out of perceived expediency, even as they tear the institutions of democracy and civil society asunder.

For now, I leave you with the remembrances of Benazir Bhutto offered by Adil Najam:

[A]ll of these [questions] are paled by thoughts about Benazir as a person. The woman. The wife. The mother. The human being. What about her?

I have not always agreed with her politically but there was always a respect for her political courage. I had met her many times, first as a journalist covering her when she had just returned to Pakistan in the Zia era and before she became Prime Minister. Later a number of times in her two stints as Prime Minister and then a few times during her exile. In that last period she toll to referring to me as “Professor sahib” and some of our exchanges were more candid (at least on my part) than they had been earlier.

At a human level this is a tragedy like no other. Only a few days ago I was mentioning to someone that the single most tragic person in all of Pakistan - maybe all the world - is Nusrat Bhutto. Benazir’s mother. Think about it. Her husband, killed. One son poisoned. Another son assasinated. One daughter dead possibly of drug overdose. Another daughter rises to be Prime Minister twice, but jailed, exiled, and finally gunned down.

and by Manan Ahmed:

In the nation whose history is dotted by military coups, assassinations and hangings of public figures, this is surely the bloodiest stain. She titled her autobiography, the Daughter of Destiny - but surely she deserved a fate other than the destiny of her father and Liaqut Ali Khan. It is truly a tragedy and a revelation of the chaos gripping the nation.

And finally, with the hope that the political violence emerging in response to Bhutto's assassination -- all too common in the subcontinent -- will soon subside.

Posted by Anil Kalhan

Substituted Judgment

This past week, my favorite radio show, This American Life, focused on the theme of "home alone," with stories about people living alone (episode here). The first of three segments considered people who lived alone and then died alone, with most of the segment taken up with the saga of an elderly woman named Mary Ann. Lying on death's door in the hospital, Mary Ann calls the one human being she barely knows---the woman who delivers her prescriptions from the pharmacy---to plead that she feed her two dogs, whom Mary Ann has left tied up in her home. Mary Ann tells the woman that she will reimburse her for the costs, saying the dogs are all she has. Days later, Mary Ann dies. Emily, the social worker whose job it is to piece together Mary Ann's life sufficiently to arrange a burial and the disposal of her estate, arrives at the house and the very first thing Emily does is to call animal control to take away the dogs, presumably to a municipal shelter where they almost certainly will be euthanized within days if not hours. Emily spends the balance of the Act vainly searching for a person with whom Mary Ann connected, never seeming to notice that she, Emily, had essentially killed the only two living beings with whom there was a close connection. Emily eventually locates relatives willing to take over the funeral arrangements and the disposal of the estate, but these relatives were not in any way close with Mary Ann.

We also learn that Mary Ann had at least $6,000 to her name. No doubt this would have been enough money to pay for the care and feeding of Mary Ann's dogs for a much longer time than they were kept alive at animal control, with the possibility that the dogs would be adopted. With nothing to go on but Mary Ann's statement that these dogs were all she had, and no close relatives or friends in the picture, wouldn't that have been the obvious use to put her money, at least if the point of Emily's job is to discern the deceased's wishes? And if so, why didn't this possibility even cross Emily's mind, or for that matter, the minds of This American Life's producers?

The answer, I think, sheds light on an always-fraught position in the law: that of surrogate decision maker. Emily's job was not so different from the job of those people who must make a substitute judgment for those who are no longer (or perhaps never were) competent to make the judgment for themselves. Most commonly, these judgments concern end-of-life matters. Much of the case law and academic literature critical of substituted judgments questions the ability of the person being asked to make such a judgment to consider the interests of the person affected rather than his or her own interests. Thus, critics note, it is tempting to think that the relative in a persistent vegetative state would want to be disconnected from life support if that course would mean that the surrogate decision maker inherits a larger estate or even just gets to move on with life.

These are legitimate worries, but Mary Ann's story points to another risk. Emily had no personal stake in what was to become of Mary Ann or her possessions. Yet I believe she nonetheless asked the wrong question. She should have asked, "what would Mary Ann have wanted," to which the answer pretty clearly would have been to have her dogs looked after. Instead, I suspect that Emily asked "what would I have wanted if I were Mary Ann?" Now, in an important sense, all we can ever ask about another person's wishes and feelings---especially a stranger's wishes and feelings---is "what would those wishes and feelings feel like if I had them?" This is perhaps the main point of Thomas Nagel's wonderful essay What is it Like to Be a Bat? We can't really know what it is like for a bat to be a bat. The closest we can come is to imagine what it would be like for a person to be a bat. And, Nagel says and I agree, the same is true between people. Emily can't know what Mary Ann would have wanted. She can only know what she, Emily, would want if she were Maryann. That said, surely one person can do better than Emily did in approximating the wishes and feelings of another. Sure, Emily can't eliminate her Emily-ness in her effort to imagine herself as Mary Ann. But she could have tried a lot harder.

Posted by Mike Dorf

Bada Bing

Who says tax law isn't sexy? TaxProf Blogger (and U Cincinnati Law School Associate Dean) Paul Caron has posted an item picked up from the AP about a new Texas tax of $5/customer on the patrons of strip clubs, dubbed by wags the "pole tax." The AP story, quoted in turn by Caron, states:

Jonathan Turley, a constitutional law expert at George Washington University, said the Texas tax goes too far. "It seems clear legislators are targeting strip clubs because they're unpopular," Turley said. "Laws like this would expose any unpopular industry to punitive taxes. It could be abortion clinics."

Let's give Professor Turley the benefit of the doubt here and assume that he was quoted out of context. There is, after all, nothing per se unconstitutional about legislators targeting for taxation those activities that are unpopular. So-called "vice" taxes on tobacco products, alcohol and other products or services the state wishes to discourage may or may not be wise policy. Such taxes may be regressive and if too substantial, may lead to black markets, for example. But they only raise constitutional concerns where the goods or services singled out for taxation are constitutionally privileged. That's true of an abortion clinic (Turley's example) and, under current Supreme Court First Amendment doctrine, may or may not be true of the Texas "pole tax," depending on whether Texas can plausibly claim that the tax targets the non-expressive "secondary effects" of strip clubs. My view is that a tax on all customers of strip clubs cannot readily be defended as targeting secondary effects, but I'll leave it to holiday readers to argue it out for themselves.

Posted by Mike Dorf

Happy Holidays!

And so with that once-innocuous expression, I throw my support in the War on Christmas to the side of the unholy warriors. Okay, I'll be among the first to admit that the whole concept of a War on Christmas is absurd. The notion that religious Christians in 2007 America are an oppressed group is mostly a clever political strategy for a powerful group to claim the mantle of victimization.

That said, in a country of 300 million people and almost as many bloggers, one can always find someone to say something legitimately hurtful. Thus, when I googled "war on Christmas 2007," the first entry to pop up was this blog entry from something called the Atheist Revolution blog. Tooling around a bit on the blog, I concluded that its author is a reasonable person who does not mean to deliberately insult religious people. Nonetheless, the "war on Christmas" entry does contain the following addressed to a local school board member who defended the posting of "Merry Christmas" on a public school entrance with an admittedly incoherent explanation that the sign was there as an expression of inclusiveness:

What we are trying to do is make sure that the kids who don't live in a fantasy world aren't ridiculed for it by those who are as deluded as you claim to be. You see, we think you and your children should have the right to practice your religion in the privacy of your own home. We don't think you have any right to expect the schools to do it for you or to expose other children to it.

One way for a liberal to make sense of the offense a religious person legitimately takes at such a statement is to imagine that instead of objecting to a pro-Christmas message, the blogger were objecting to a pro-sexual freedom message by saying that, e.g., gay and lesbian Americans are entitled to do what they want in the privacy of their own homes but shouldn't expect the schools to expose other children to their "lifestyle." People (like me) who favor LGBT rights would legitimately object in turn that this sort of tolerance-rather-than-acceptance is inconsistent with full citizenship. And likewise with religion, putting the best face on the complaints from religious people about the "war on Christmas," what they object to is the notion that their religious faith is something vaguely shameful that will be tolerated so long as it is kept private.

To understand the religious perspective is not, of course, to agree with it. As a legal matter, we have grounds for distinguishing a demand that our schools not promote religion---namely the First Amendment's Establishment Clause---that don't apply to demands that our schools not "promote homosexuality." Moreover, most people who believe that religion should be a private matter think that because of the risks---too often realized throughout world history---of oppression and violence when religion and the state become entwined. One can worry about these risks without believing that religious faith is in any way shameful.

Nonetheless, I do think it important to understand that, however silly the notion of a "war on Christmas" may be, the anxiety which provokes it is real. Accordingly, I think it's important for those who strongly favor secular public institutions to take pains not to give the impression that we disrespect people with strong religious beliefs. It's theoretically possible to say, as some prominent atheist writers say, that you disrespect the religious views of religious people (because you think they are illogical, harmful or whatever) while respecting the religious people themselves, but in the actual hurly-burly of public debate, it's very hard to distinguish ridiculing beliefs from ridiculing the people who hold those beliefs.

So, that said, Happy Holidays to all. I'm going to take a break from blogging for the next week and a half, which means I may post once or twice as a means of avoiding grading exams, but regular posts from me won't resume until after the new year.

Posted by Mike Dorf

The New Politics of Delay

In what probably should be chalked into the ‘not too surprising’ column, the Bush administration last night rejected California’s request for permission to regulate cars as sources of greenhouse gas (GHG) emissions under Clean Air Act Section 209. Under 209, states are preempted from regulating cars as sources of pollution with one exception. CA can do so if it gets a waiver from EPA (CA petitioned for the waiver in December 2005). The process is laid out in Section 209(b) of the Clean Air Act. The conventional wisdom was that EPA had little room to deny the waiver in this case. Under the Act, it was free to do so if (A) anything in the CA petition was “arbitrary and capricious” (the California Air Resources Board actually put together pretty solid arguments); (B) CA did not need State standards to meet “compelling and extraordinary conditions” (more on this below); or (C) the CA standards and accompanying enforcement procedures were not “consistent” with the federal regulation of cars as sources of pollution (anything that is “more stringent than” is, at least in principle, normally “consistent with”).

Of course the denial came just a few days after a district court in California held that the waiver request was viable at least in principle because the Clean Air Act reaches greenhouse gases as “pollutants.” And it came only a day after the signing of new federal fuel economy standards. The CA rules and waiver request would subject the car companies to a quicker phasing in of GHG emission controls (2009-16 phase in) as compared to the new federal schedule in the energy bill passed on Tuesday (2012-2020 phase in). In auto industry years, that difference could be very significant.

Either way EPA went here, more litigation over fuel economy was certain. But I’d like to draw attention to the specific legal grounds for denying CA’s petition. If EPA’s press release is any indication of what it will say in its formal denial of the petition, it looks like it is going to bungle this as badly it did the petition at issue in Massachusetts v. EPA (a request that EPA make federal rules on fuel economy under the Act’s Section 202). EPA’s press release was titled “America Receives a National Solution for Vehicle Greenhouse Gas Emissions.” In it and in remarks quoted in the press, EPA Administrator Steve Johnson says that federal uniformity is the reason for rejecting CA’s petition. A “patchwork” of state laws on the matter would be bad for the country and, in any event, the federal standards will apply to “all 50 states.” That is a non sequitur, though.

I’ll grant that CA might not be able to prove under Section 209(b)(1)(B) that it is uniquely vulnerable to climate change among the states (although they make a pretty good case). But even CA admits that: it has always maintained that it is acting out of both vulnerability to climate change and a sense of burden sharing: CA contributes disproportionately to US GHG emissions and transportation accounts for over half of its emissions. CA as contributor of GHGs was looking to move now through all available channels. If anything in its approach was “inconsistent” with the federal rules or was less stringent, EPA could easily have identified it and rejected the petition for that reason alone. Some 17 other states had said that they would utilize their authority under 209(c) to require the CA cars if and when EPA granted CA its waiver. So there would be a significant number of states requiring exactly the same thing as CA, but that isn’t a “patchwork.” It’s a real incentive to car makers to meet the more stringent standard and only have to retool once.

Federal preemption here doesn’t provide a “solution” to anything because there is no single solution to this crisis. To deny the petition by raising the Damocles sword of a “patchwork” is to seriously skew the analysis the statute requires. The question is not whether the nation’s economy as a whole will work better with a single (more distant in time) requirement (which American car companies can "fine tune" through wormy tactics and influence in Washington). The question is whether CA’s petition fails on any of the listed statutory factors. Incidentally, CA and its partners have vowed to sue.

Posted by Jamie Colburn

People Are Getting Smarter and Dumber, Says New Yorker Magazine

In last week's New Yorker magazine, Malcolm Gladwell reviewed James Flynn's new book, What Is Intelligence, in which Flynn provides strong evidence that average I.Q. is increasing over time worldwide. (Review here, while the link lasts.) Both Flynn and Gladwell use Flynn's data to debunk claims about inherent racial differences in IQ and, more broadly, to question what exactly it is that IQ tests measure. What IQ tests measure, they both say, is the capacity for abstract as opposed to concrete reasoning, a capacity that is progressively developed and rewarded as societies move from pre-industrial to industrial to post-industrial. Thus differences between populations within societies can be accounted for by socio-economic conditions without any need to posit inherent and inheritable differences.

Meanwhile, in this week's New Yorker, Caleb Crain writes an essay about the global decline of reading, attributable largely to the increase of tv viewing. (The data show some reversals due to internet use, but Crain speculates that with the growth of YouTube and like sites, the internet may come to resemble tv.) People who read, Crain says, become more adept at thinking abstractly.

Gladwell and Crain describe strikingly similar experiments that suggest they are talking about the same phenomenon, but with exactly opposite conclusions. Here's Gladwell on IQ:

The psychologist Michael Cole and some colleagues once gave members of the Kpelle tribe, in Liberia, a version of [a key component of the IQ] test: they took a basket of food, tools, containers, and clothing and asked the tribesmen to sort them into appropriate categories. To the frustration of the researchers, the Kpelle chose functional pairings. They put a potato and a knife together because a knife is used to cut a potato. “A wise man could only do such-and-such,” they explained. Finally, the researchers asked, “How would a fool do it?” The tribesmen immediately re-sorted the items into the “right” categories. It can be argued that taxonomical categories are a developmental improvement—that is, that the Kpelle would be more likely to advance, technologically and scientifically, if they started to see the world that way. But to label them less intelligent than Westerners, on the basis of their performance on that test, is merely to state that they have different cognitive preferences and habits. And if I.Q. varies with habits of mind, which can be adopted or discarded in a generation, what, exactly, is all the fuss about?

Now here's Crain on literacy:

[I]n 1974 . . . Aleksandr R. Luria, a Soviet psychologist, published a study based on interviews conducted in the nineteen-thirties with illiterate and newly literate peasants in Uzbekistan and Kyrgyzstan. Luria found that illiterates had a “graphic-functional” way of thinking that seemed to vanish as they were schooled. In naming colors, for example, literate people said “dark blue” or “light yellow,” but illiterates used metaphorical names like “liver,” “peach,” “decayed teeth,” and “cotton in bloom.” Literates saw optical illusions; illiterates sometimes didn’t. Experimenters showed peasants drawings of a hammer, a saw, an axe, and a log and then asked them to choose the three items that were similar. Illiterates resisted, saying that all the items were useful. If pressed, they considered throwing out the hammer; the situation of chopping wood seemed more cogent to them than any conceptual category. One peasant, informed that someone had grouped the three tools together, discarding the log, replied, “Whoever told you that must have been crazy,” and another suggested, “Probably he’s got a lot of firewood.”

So, at exactly the same time that people in developed countries are becoming less literate, and therefore should be losing their ability to reason abstractly, their performance on IQ tests improves. I don't know what explains these apparently contradictory results but it would have been helpful if someone at the editorial staff of the New Yorker had at least noticed the oddity.

Posted by Mike Dorf

Immunity for Phone Companies?

Suppose an FBI agent approached a generally law-abiding citizen that I'll call "Shmerizon," and the following conversation ensued.

FBI Agent: I'd like you to whack Shmarlos the Shmackal. He's a terrorist.

Shmerizon: By whack, you mean . . . .

FBI Agent: You know what I mean.

Shmerizon: Uhm, isn't that illegal?

FBI Agent: I'm with the government. If I tell you to do this in the interest of national security, it's not illegal. Understand?

Shmerizon proceeds to kill Shmarlos, even though another citizen, Shmest, when presented with the same demand, refused to act without a court order. Now suppose that instead of prosecuting Shmerizon for murder, and without denying that what Shmerizon did was clearly illegal at the time notwithstanding the FBI Agent's statements, the government decides that Shermizon should be given retroactive immunity for the murder because he shouldn't be punished for helping out his government in time of need. Even assuming one finds Shmerizon's plight sympathetic, shouldn't the most minimal commitment to notions of government regularity require that any immunity for Shmerizon be coupled with some form of accountability on the part of the FBI Agent or his superiors who asked that Shmerizon commit murder?

Is the only difference between this situation and the actual current proposal for immunity for the phone companies that violated FISA the fact that we think that murder, even of a bad guy like Shmarlos the Shmackal, is properly illegal, while President Bush and many in Congress think that FISA's restrictions were not just unwise but so grossly unwise as to vindicate anyone who ignored them? And why do I hate freedom?

Posted by Mike Dorf

California Can Regulate Carbon Emissions, Maybe

Intrigued? Check out my FindLaw column on the topic here. Feeling cheated by the absence of a full blog post from me today? Sorry about that. At least the column is a bit longer than usual. And you can read Jamie's post, just below. I've got exams to grade.

Posted by Mike Dorf

What Effect Does Precedent Have on Agency Statutory Interpretation?

Or better yet, what effect ought precedent have? The recent ruling in the Eastern District of CA has many in the environmental community cautiously optimistic about improving fuel efficiency in the US. The ruling was a denial of summary judgment sought by the Ass'n of Int'l Auto Mfrs—an industry group that, according to its website, promotes competition, advances technology and invests in America (and who could be against all that?). What AIAM argued was that CA, in seeking to adopt auto emissions standards aimed at reducing greenhouse gas emissions, was preempted from doing so on several grounds. Each was rejected and, indeed, CA and its intervenor friends were granted their own summary judgment to the effect that, in the event EPA approves the "waiver of preemption" which CA has sought under the Clean Air Act, CA will be empowered to impose emissions standards on new vehicles. This may be in some tension with NHTSA's authority to balance energy efficiency needs against auto travel under the Energy Policy and Conservation Act. (As Mike pointed out in his Findlaw column today, there is a very strong correlation between emissions and fuel efficiency, although as some people seem weirdly diligent in arguing, emission standards and fuel efficiency standards are two separate things.)

What is most interesting about this particular D.Ct. decision, though (the fuel economy stuff is likely to be worked over in some substantial way by new legislation and/or a new administration), is the way in which the judge seems to have changed his mind about the preemption issues in light of Massachusetts v. EPA, 127 S.Ct. 1438 (2007). Specifically, Judge Ishii went from believing that the regulation of greenhouse gases as Clean Air Act "air pollutants" was too far a stretch under that statute to finding that this stretch was natural, logical and in keeping with Congress's intent. He did so in large part because of how SCOTUS interpreted the Act in Mass. v. EPA, which, of course, was directly contrary to EPA's view regarding greenhouse gases and their fit within the Act's structure.

My own hunch is that courts are losing interest in agencies' interpretations of their statutes whenever judicial precedent interpreting that statute exists. Moreover, this is making cases like Nat'l Cable & Tel. Assn v. Brand X Internet Servs. 545 U.S. 967 (2005)—cases that allocate interpretive authority as between precedent and agency judgment—much more important today than in the recent past. One response to all this is that judges back into opinions like Ishii's and that complicated allocations of authority have little to do with it. I have my doubts about that response as a substantive matter (the empirical support for such "attitudinal" models is weak), but as a pedagogical matter it is pure tripe. We should shorten law school down to a few days if that's what we ought to teach about the power of legal reasoning.

The "Spin Cycle" in Musharraf's Institution Laundering

Yesterday, former General Pervez Musharraf purported to "lift" the Emergency he declared on November 3rd, claiming that he has now "revived" the Pakistan Constitution of 1973. Members of Pakistan's civil society are not particularly impressed. And they shouldn't be. Musharraf's claim to have "lifted" the Emergency makes sense only if we understand the word "lifted" to mean "institutionalized and made permanent via a one-man constitutional convention." Most of the actions he has taken during the last six weeks remain in place, and even his orders purporting to "lift" the Emergency simultaneously implement a raft of permanent constitutional amendments designed to consolidate his grip on power. Let's take stock of where things now stand compared to where they stood on November 2nd:

1. Musharraf has laundered the judiciary by dismissing all Supreme Court and High Court judges who refused to take a new oath of loyalty to his provisional constitutional regime and packing the courts with pliant judges who have explicitly pledged their loyalty to him. Through a unilateral amendment to the Pakistan Constitution itself, he has now made the dismissal of those judges permanent. In the process, he has prevented the Supreme Court of Pakistan from adjudicating his eligibility to hold office and undermined its ability to proceed with a credible investigation into the hundreds of disappearances that have occurred since 2001 in connection with the "war on terror" (as discussed in the documentary "Missing in Pakistan," which is linked above).
2. He has detained thousands of regime opponents, apparently subjecting some of them to torture. While most of these individuals have now been released, several leading lawyers remain under house arrest, and the message to would-be regime opponents has been crystal clear.
3. He has laundered the media, forcing independent television networks off the air and permitting their return only on condition that they (1) muzzle themselves by pulling programming critical of his regime and (2) abide by a "code of conduct" that permits the government to suspend their operations more or less at will.
4. He has amended the Army Act, with retrospective effect from January 2003, to permit civilians to be tried in military tribunals for offenses ranging "from murder to libel," including "expressions or acts that are 'prejudicial' or offensive towards the government." [link]
5. He has amended the Legal Practitioners and Bar Councils Act in a manner that permits the executive to interfere with the operations of independent bar associations and makes it easier to target lawyers critical of the government with allegations of misconduct. [link]
6. He has unilaterally and permanently amended the Pakistan Constitution to restructure the judiciary, changing the eligibility requirements for individuals to become High Court judges and creating a new Islamabad High Court in order to facilitate easy transfer of cases from other High Courts to a more favorable jurisdiction "composed of judges that the government has handpicked." [link]
7. He has unilaterally and permanently amended the Constitution to validate his eligibility to hold office as President.
8. And last but not least, he has unilaterally and permanently amended the Constitution to indemnify his self-consciously extraconstitutional actions. Under Article 6 of the Pakistan Constitution, those actions constitute "high treason" insofar as they entail an effort to abrogate or subvert the Constitution "by use of force or show of force or by other unconstitutional means." However, under Musharraf's new amendment, the Constitution now provides that all laws and actions during the past six weeks are now "affirmed, adopted and declared to have been validly made ... and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever." Even after Musharraf's first coup, he was not so brazen as to unilaterally indemnify himself, instead obtaining that indemnification (albeit with some difficulty, even though it was packed with his supporters) from Parliament, as General Zia ul-Haq had before him. This time, however, Musharraf is insisting that Parliament's prior decisions to indemnify these acts of treason were merely "ceremonial," arguing somewhat oddly through his law minister that "not a single provision in the Constitution required [Parliamentary] validation of measures done through extra-constitutional steps." [link] (I suppose that technically might be true, but of course, that also just might be because under the Constitution, "extra-constitutional steps" are, well, unconstitutional, full stop -- indeed, it would be surprising if the Constitution contemplated the "validation" of such steps by anyone.)

The effects of these changes will long outlast the "lifting" of the Emergency. And so, the laundering of Pakistan's institutions is nearly complete; all that appears to remain is the spin cycle, in which Musharraf and his allies publicly congratulate themselves for how much they have done to promote democracy in Pakistan. The Bush administration and "America's Sweetheart" Benazir Bhutto have duly cooperated with Musharraf's spinning, with both welcoming his actions this weekend as a positive step with little or no accompanying criticism. Of course, neither response is all that surprising at this point. Not only has Bush himself said that Musharraf has not "crossed any lines," but some press reports have even suggested that Western governments have quietly endorsed Musharraf's purge of the judiciary because they, too, have been concerned about Pakistani judges acting too independently. For her part, Benazir has scrupulously avoided calling for the restoration of Pakistan's purged judges, stating -- to considerable disbelief -- that she believes in the independence of the judiciary but that the "personalities" of those judges do not matter. And flip-flopping like Mitt Romney, Benazir now even has suggested that she might be willing and able to work with the General after all.

As for the upcoming elections, Musharraf insists that they will be free and fair. Early indications -- including the use of the police to hang up posters for Musharraf's party, as seen in the above photo -- are not promising. Adil Najam seems right on the money in describing the "lifting" of the Emergency as "three steps back, half a step forward."

Posted by Anil Kalhan

Harvard's Ten Percent Solution and the Alternatives

The announcement that Harvard College will henceforth charge students whose families earn between $120k and $180k per year only 10 percent of their annual income for tuition is surely a positive development. (Harvard is already free for students whose families earn less than $60k per year, and there is now a graduated scale up to the $120k.) Still, there is at least one possible oddity in the program and a deep question raised by it.

First, the oddity. Until now, Harvard has considered assets, including home equity, along with income, in determining financial aid eligibility. This is common practice among universities, but it has perverse effects. It rewards families that don't save for college by giving them extra aid relative to families with the same income that sacrificed the expensive lifestyle to save. Further, excluding just some assets from the calculation is easily manipulated. If, e.g., Harvard counts money in the bank but not home equity against aid eligibility, then families have an incentive to pay off their mortgages so as to transfer from a "counted" investment to an "uncounted" one. If (and I can't tell from just the press release), Harvard means to look ONLY at income, and not at assets at all, that solves this problem and also the problem of discouraging savings. It doesn't, however, deal with the fairness issues of charging low tuition to people with low income but, say, a large inheritance. Perhaps there's no way to construct a financial aid scheme that doesn't introduce distortions. I'm out of my depth here, but we might say this is merely the flipside of the taxation problem: Other than the idealized "lump-sum tax," there is no non-distorting tax, and the same could be true for financial aid, which is simply a negative tax.

Now the more fundamental issue. Maybe all university education should be funded by no up-front tuition but instead a commitments of a portion of future earnings. The meritocratic premises of selective admissions are that people of talent, regardless of financial means, should be encouraged to come to elite institutions so as to make the most of their talents. Loans and grants are a way to prevent unequal distributions of wealth in previous generations from distorting admissions in the current one. (Well, "prevent" is too strong a word, because the children of the wealthy have all sorts of other advantages that aid them in getting admitted, but let's put that issue aside.) Yet, nearly anyone who will graduate from Harvard (or other highly selective universities) is not without means: Some are without current means, but the Harvard (or comparable) degree that they will receive on graduation means that they will be able to earn a great deal of money at the back end. The problem is liquidating that now.

Loans are one possibility but they have the distorting effect of incentivizing talented children of poor parents to go into the most lucrative fields, rather than those that they find most interesting. Funded by loans, a brilliant poet ends up pursuing economics and then a career in management consulting to pay off the loans. A better way would be simply to tax the future income of all graduates. Thus, those who end up earning the most---and thereby gaining the greatest financial benefit from the university education---pay the most. One could even use progressive rates.

To be sure, this proposal has some difficulties, the largest being the phase-in problem. To avoid adverse selection---poets opt in; future investment bankers opt out---all students would need to pay this way, and thus universities could not charge anybody tuition, immediately upon going to this system. The universities would need an enormous pool of money to replace the revenue stream currently attributable to tuition, to cover costs for the 20 years or more it would take for this regime to become self-sustaining. (Well, maybe not. Perhaps students could be randomly assigned to either the tuition or the pay-later pool, but that would only blunt the start-up problem, not solve it.)

Another impact of such a switch might be to eliminate voluntary alumni giving. Alumni who must pay 2 percent (or whatever) of their annual salary to their college might well regard this not so much as a substitute for tuition as a substitute for charitable giving. Of course, setting the repayment tables correctly at the front end could make up for the loss in charitable giving, and very wealthy alumni might still be motivated to give by some combination of loyalty, altruism and egoism. You wouldn't get a building named after you just for paying your annual two percent. You'd need to make a voluntary gift on top of that.

There is also the problem of enforcement, although perhaps by having new students sign a release of all future tax returns upon matriculation, these could be overcome. In any event, the obstacles---especially the startup cost---probably make my program impractical, but in principle the program has key advantages over the current regime. So too, of course, does a system of completely government-funded university education for all who qualify, but that approach, which was the dominant model in nearly all of the world until recently, has been declining roughly simultaneously with the scaling back of the commitment to other aspects of the social democratic project in Western Europe and elsewhere. So bottom line: the new Harvard program is an excellent idea given the constraints our university finance system faces. Whether it can be done by universities with smaller endowments is doubtful.

Posted by Mike Dorf

Too Hot to Handle??

Fridays tend to be a slow blog-traffic day so I'm going to use my post today to promo the two “hot topic” panels I’ll be doing at the upcoming Association of American Law Schools annual conference just after new year’s. I’ll be doing a panel on the Second Amendment issue in the D.C. gun case. That topic is so “hot” that the conference organizers have decided to schedule it for 8:30 a.m. on a Saturday. More about that one tomorrow. The other hot topic is . . . wait for it . . . abortion. I guess it’s always hot. Anyway, here’s the info:

AALS HOT TOPIC panel on "Reproductive Justice after Carhart"

Friday, January 4, 2008

10:30 a.m.-12:15 p.m.
Petit Trianon, 3rd floor, New York Hilton

Moderators: Pamela S. Karlan, Stanford Law School
Jack M. Balkin, Yale Law School

Panelists: Michael C. Dorf, Columbia University School of Law
Reva B. Siegel, Yale Law School
Kenji Yoshino, Yale Law School
Angela P. Harris, University of California, Berkeley School of Law

This roundtable will discuss Gonzales v. Carhart, the Supreme Court's 2007 decision upholding the federal Partial Birth Abortion Ban Act. Panelists will focus on the ways that Carhart has emerged from and is reshaping debate over questions of reproductive justice in popular movements, the academy, state legislatures, and the courts.

Carhart suggests a new understanding of the state' s interest in regulating abortion, as well as a new understanding of the abortion right itself. Discussion will explore how the abortion right might be grounded in principles of sexual freedom and gender equality. Drawing on examples of abortion regulation now in state legislatures, the roundtable will examine the constituent elements of the government's interest in regulating abortion, including the government's asserted interest in protecting women from psychological harms associated with the abortion decision and the equities of imposing more extensive and value-laden informed consent requirements, as many states are now contemplating. The group will also discuss changes in the structure of abortion-related litigation, such as the distinction between as-applied and facial attacks on abortion regulations, especially as this bears on the requirement of a health exception.

Posted by Mike Dorf

Steroid-Powered Rocket to Rescue of Barry Bonds?

The Mitchell Report, detailing widespread steroid use by Major League Baseball players, may carry a silver lining for Barry Bonds. In addition to the obvious juicers---sluggers like Bonds, Jose Canseco, Mark McGwire, Jason Giambi, Sammy Sosa---the report names, indeed headlines with, pitcher Roger Clemens. It also names pitchers Andy Petttite, Jason Grimsley, Steve Bechler (who died in spring training in 2003), Ron Villone and others as users of performance-enhancing substances.

The report (and I confess to not having read all 311 pages plus appendices) suggests at one point that pitchers started taking performance-enhancing drugs in earnest once it became apparent that juiced hitters had gotten the advantage. And for some players, at least, the drugs pretty clearly worked. For example, the report indicates that Clemens had his best seasons while on the 'roids.

So how does this report help Barry Bonds? Well, not at all in his perjury case. The fact that "everybody was doing steroids" is not a defense to a charge of lying about his own use. But in terms of his legacy, it is now open to Bonds and his supporters (if he has any) to say: 1) There is no reason (other than that you don't like Barry Bonds as a person) to single Bonds out as having gained unfair advantages over other hitters in his era because so many of them were doing the same thing; and 2) Relative to batters of earlier eras, it's true that Bonds had the advantage of a juiced body (not to mention his head and neck) but he had the disadvantage of having to face juiced pitchers. So, all in all, a terrible day for baseball's public image, but not so bad a day for Barry Bonds.

Posted by Mike Dorf

Does Waterboarding Save Lives? Should It Matter?

Comes now former CIA Agent John Kiriakou to say that: (1) the waterboarding of the previously tight-lipped Abu Zubayda led him to give up Khalid Sheikh Mohammed and otherwise inform the govt about the operations of al Qaeda; (2) the capture of Khalid Sheikh Mohammed and the other use of the info obtained from Zubayda thus saved the lives of persons who otherwise might/would have perished in terrorist attacks; but (3) the U.S. should not engage in further waterboarding going forward because "time has passed, and we're more on our feet in this fight against al Qaeda, and I think it's unnecessary."

How does this all fit together? First, as to conclusion (2), well maybe. If we're speaking in utilitarian terms, it's very hard to know whether more lives were saved as a result of the actionable intelligence obtained from waterboarding Abu Zubayda than will be lost as a result of the additional terrorist attacks to which it could lead. A conservative friend of mine recently said to me, plausibly, that the people who are inspired by their government-controlled media and radical clerics to commit acts of violence against Americans will be so inspired and will commit such acts regardless of how the U.S. actually behaves. To which the answer, I think, is that even granting this point, preventing and foiling terrorist plots requires the assistance of well-informed people around the world who would not become terrorists themselves but whose opinion of the U.S. and its government plays a large role in their willingness to cooperate with us.

Suppose, however, that we grant (2). Suppose, that is, that the waterboarding of Zubayda did save lives. One might still think, on Kantian or even rule-utilitarian grounds, that it was nonetheless wrong, and it's possible to read Kiriakou as saying this. However, his point (3) seems to imply that this is not his view, that is, that the waterboarding of Zubayda was "necessary" because of the lives it would (and he says, did) save, but that waterboarding other captives would be wrong now because it's not necessary. If this is what Kiriakou is saying, then he is making only the morally obvious point that one shouldn't torture people for no good reason. I don't know anybody (who is not a monster) who disagrees.

The morally important question is not whether to torture when it's unnecessary but whether to torture when (one believes) it's necessary to save innocent lives. There is a substantial body of philosophical literature on this question, and though I myself favor a categorical prohibition on torture (including waterboarding) in all circumstances, the argument for a narrow exception in the case of the ticking bomb cannot be easily dismissed. The familiar dodge that torture "doesn't work" is an overstatement. Of course torture doesn't always work, but even if Kiriakou is wrong about it having worked in Zubayda's case, there are historical examples of it working. (See, for example, some of the successful uses of torture by the French in Algeria, as recounted in Alistair Horne's A Savage War of Peace). The problem with revelations like Kiriakou's and the inevitably superficial news coverage of the issue is that what should be a starting point in the public debate about the question "is torture wrong even if it's sometimes effective" ends up becoming an end point.

Posted by Mike Dorf

Law Professor/Politician

Is it just me, or is there something a little odd about the fact that having been a law professor , even briefly, appears to count as a qualification for high political office? President Bill Clinton briefly taught constitutional law at the University of Arkansas, Barack Obama did the same at the University of Chicago, and today came word that Dmitry Medvedev, Vladimir Putin's handpicked successor, was a law professor at St. Petersburg University in the 1990s.

Thus far, English language news reports about Medvedev (and I can't read the Russian ones, alas) emphasize two somewhat contradictory points: 1) Based on his prior writings and work, Medvedev appears to be a pragmatic moderate, someone with a technocratic bent, and probably the most liberal of the people Putin might have chosen as his successor; and 2) Medvedev is a person with no real political base or experience who will be utterly beholden to Putin, and thus essentially a puppet.

Medvedev's law professor past potentially complicates this picture. The law professors I have met from throughout the democratic world---whether liberal or conservative---tend to be independent thinkers. To be sure, there are notable exceptions. Now-Judge Jay Bybee was all too willing to do the Bush Administration's bidding when heading the Office of Legal Counsel. Some might say the same about John Yoo but I think this would be mistaken: Yoo's views about executive power were extreme before he became a government lawyer, and so he wasn't shading his own analysis to please his political masters. For all I know, this is true of Bybee too, but as a scholar Bybee wrote more about federalism and individual rights than about Presidential power. In any event, I think it fair to say (though I can hardly prove) that law professors who go into government are, on average, more likely to think and care about the constraining force of law on their actions than are non-law professors.

Yet even if that's true of law professors in broadly democratic countries, the point probably does not hold for law professors trained in authoritarian regimes. Medvedev may have served as a law professor in post-Communist Russia, but he went to law school during (the last years of) the Soviet Union. Moreover, it appears his parents were law professors, and that would have been true at a time when such posts usually (invariably?) went to party apparatchiks. If so, it would seem that the best that could be hoped for from Medvedev is that as someone whose intellectually formative years occurred during the Gorbachev era, he is a cautious moderate uninterested in the sort of Czarist/Soviet restoration that Putin sometimes seems to favor. In any event, perhaps the first task for Russia watchers should be translating Medvedev's scholarly writings into English.

Posted by Mike Dorf

A Bad Day for Drug Warriors at the Supreme Court

In three cases decided today, the Supreme Court sided with criminal defendants convicted for drug-related crimes. But warning to readers: Drugs are still illegal, so don't start taking your bong hits (4 Jesus or anyone else) just yet. Here's my summary:

1) In Watson v. United States, the Court held that someone who receives a gun in exchange for drugs (here OxyContin) does not thereby illegally "use" a firearm during and in relation to a drug trafficking offense. Justice Souter so wrote for the Court despite the fact that in an earlier case, Smith v. United States (1993), the Court had held what in Watson it termed the converse: that someone who trades a gun for drugs does thereby use the gun. This distinction reminds me of nothing so much as the argument that when Monica Lewinsky performed oral sex on Bill Clinton, she had sex but he didn't.

2) In Kimbrough v. United States, the Court held that a district judge is entitled to depart downward from the (now just advisory) Federal Sentencing Guidelines' sentencing range for crack cocaine on the ground that the 100/1 ratio of severity/weight assigned by the Guidelines for crack and powder cocaine respectively is disproportionate. For years, the disparity has been criticized and the Sentencing Comm'n itself has tried to do away with it, only to be stymied by Congress. In Kimbrough, that very fact was used by Justice Ginsburg as a reason to justify denying the Guidelines the deference to which they might otherwise be entitled.

3) In Gall v. United States, the Court, per Justice Stevens, reversed an Eighth Circuit ruling that had invalidated a sentence outside the Guidelines range---probation rather than 3 years in prison for a college student convicted of conspiring to distribute ecstasy but withdrew from the conspiracy before selling any---on the ground that the departure wasn't justified by extraordinary circumstances.

Notably, in Kimbrough and Gall, the only party poopers to vote for the harsher sentences were Justices Thomas and Alito.

Posted by Mike Dorf

Tech for Tech's Sake

I've recently seen two movies in 3-D: "Beowulf" and the re-release of "A Nightmare Before Christmas." Three-dimensional film technology has been around for about a half-century, but it has never been anything but a tiny niche technology, continuing decade after decade to be more of a gimmick than a serious theatrical artistic technique. It is telling that the director of "Beowulf" is Robert Zemeckis, who has made a career playing with new or fringe techniques -- some brilliant successes ("Who Framed Roger Rabbit?") and some not ("The Polar Express").

There is a good reason why 3-D has never caught on: It simply does not improve the movie-going experience. Having seen "A Nightmare Before Christmas" when it first came out in 2-D, it was especially disappointing to watch it in 3-D. The effects were affirmatively distracting, and the movie was a lot less fun to watch. "Beowulf" was proof that the technology is not really all that good, even after all these years, with the effect looking less like three-dimensional life than like the filming of two-dimensional cut-outs placed at various distances on a sound stage. Seeing a spear coming from the screen toward your eyes will make you jump, but that very minor thrill is hardly the basis for a choice of film technique. (Back in the 1970's, SCTV brilliantly parodied the silliness of 3-D, with John Candy and Joe Flaherty picking up objects and moving them slowly toward the camera to "enhance" the 3-D experience.)

Why mention this on a law blog? I have recently have read a series of law review articles that apply game theory to a variety of classic legal issues, and I have come away with the same feeling that I described above regarding 3-D movies: game theory techniques look at first glance to be somewhat promising, and they can sometimes offer a gee-whiz moment (deriving not from an insight into the merits of a scholarly argument but from seeing a simple point derived in a more circuitous -- yet somehow more "cool" -- way). Ultimately, though, legal scholarship relying on game theory seems mostly to suffer from the same faults as 3-D: not only do the techniques not add up to what we hope they will, but the results can be worse than simply using the old techniques. More than one legal scholar (to say nothing of economists) has gotten lost in the method and not been able to find a way back to the substance.

Many economists have made these points before. Franklin Fisher, one of the most prominent economic theorists of his generation and an emeritus professor at MIT's top-ranked economics department, wrote an article almost 20 years ago assessing what economists had learned from game theory in the study of strategic business interactions ("industrial organization," in the jargon). To roughly paraphrase Fisher's conclusion (from memory): Before we had game theory, we knew that concentrated industries behaved in ways not predicted by the theory of perfect competition, but firms' decisions depended on situation-specific details including the number of competitors, the nature of the goods produced, the number and types of consumers, the regulatory environment, etc.; but now that we have game theory, we know that concentrated industries behave in ways not predicted by the theory of perfect competition, and firms' decisions depend on situation-specific details including the number of competitors, the nature of the goods produced, the number and types of consumers, the regulatory environment, etc.

Never having been a Luddite, I am of course not suggesting that we should not try new techniques. We should always be open to new approaches, hoping that they will occasionally offer new insights (and accepting that they will often fail). Still, it is difficult not to notice when a technique consistently fails to make things better. Maybe 3-D movies will one day be a significant improvement on traditionally-filmed movies. Given the track record of many decades, I doubt it. Maybe game theory-oriented law review articles will one day provide insights that we cannot yet imagine. Given the track record thus far, though, I'll be surprised if it happens.

Posted by Neil H. Buchanan

The Destruction of the Abu Zubaydah Interrogation Tapes

The CIA was under no legal obligation to videorecord its interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri, so, one might ask, why was it required to preserve the recordings it made? The answer, here as elsewhere in the law, is that the destruction of evidence is (sometimes) culpable while the non-creation of evidence is not.

Large private firms understand this point and respond in two main ways. First, most firms have routine document destruction programs. A firm that is not under active investigation for wrongdoing is not generally required to keep the "documents" (used here in the broad sense to include not only hard copies of writing but electronic files of text, audio and/or video). Indeed, the law sometimes imposes affirmative obligations on firms to destroy documents that contain sensitive personal information regarding their clients, employees and others. Even where not legally required to do so, prudent firms purge their records periodically to avoid potential legal headaches later. To repeat, this is generally lawful where there is no specific intent to frustrate a particular investigation or proceeding.

The second---and more effective---means of preventing documents from coming back to bite the firm is not to create them in the first place. Email is especially difficult to eliminate and thus can be very dangerous, which is why some sensitive issues are addressed only in unrecorded conversations.

The problem for firms is that destroying and/or not creating documents is itself costly. A well-run organization understands what it is doing, and to do so it needs to have as thorough a picture of its operations as possible. Communications by secure email and office intranets offer advantages (and corresponding disadvantages) that oral communications do not. And because it is often difficult to predict in advance just which documents will prove sensitive later on, an effective document destruction program will likely be quite over-inclusive, destroying useful as well as useless documents.

However a firm strikes the balance, it cannot, once under investigation, destroy relevant documents, and that is even more true for the government. Not only did the CIA destroy tapes it knew had been sought by others in (and outside) the government; before the destruction occurred, it apparently denied that the tapes even existed when pressed by the 9/11 Commission.

Coming so fast on the heels of the NIE reversal regarding Iran's pursuit of nuclear weapons, the news of the destruction of the Zubaydah tapes' destruction caps a very bad week for the nation's intelligence/covert ops communities, but one shouldn't immediately leap to the conclusion that an important job was (once again) bungled by the spies. Anybody paying attention knows that the failure of pre-war intelligence was essentially a case of the administration (especially VP Cheney) demanding cooked intelligence. It remains to be seen whether that was also the story of the overestimation of the nuclear threat from Iran, and it also remains to be seen how high up the responsibility for destruction of the Zubaydah tapes goes.

Posted by Mike Dorf

My Reasons

A couple of days ago, a reporter left me a message asking for my reasons for shifting institutional affiliations next academic year. Being too busy with end-of-semester business, I didn't return the call, but I thought I should answer. So here are my top 11 reasons (11 is one louder.):

11. The pattern on the carpet in my Columbia office is driving me mad. Mad, I say.

10. I'm not convinced that the special salad dressing I requested is really vegan.

9. Global warming.

8. I'm protesting President Bollinger's uncivil treatment of President Ahmadinejad.

7. I was told that dogs roam free on the Cornell campus.

6. Mike Bloomberg won't be mayor forever, you know.

5. I had such high hopes for the Knicks this season, but they've been dashed once again.

4. The paparazzi.

3. Why can't we all just get along?

2. With Noah Feldman gone from NYU, the faculty Dean's Cup game is no longer worth risking permanent injury.

1. The coffee in the faculty lounge has become simply undrinkable.

Posted by Mike Dorf

Romney on Religion

Former Massachusetts Governor and Republican Presidential hopeful Mitt Romney today delivered a major speech detailing his views on church and state, as well as how his faith would inform a Romney Presidency. (Audio and transcript from NPR here.) The speech contained a few interesting points:

1) Invoking JFK, Romney admitted to being a "candidate from Massachusetts," a fact he had heretofore been trying to hide by disavowing just about everything he did as Governor of the Bay State. Indeed, the Founding Father cited most in the speech is another Massachusettsite, John Adams.

2) The basic note Romney struck was "render unto Caesar." He would make policy judgments based on policy considerations and the interests of the people, not taking instructions from his church. At the same time, he would not disavow his Mormon faith. Okay, so far so good. But then to drive the latter point home, Romney said: "Americans tire of those who would jettison their beliefs, even to gain the world." It's hard to read that as anything other than a description either of how Romney ran for office in Massachusetts or how he's running for President. Either he jettisoned his deeply conservative views on social issues to win elections in Massachusetts (only to find them again later), or he is now jettisoning his quite liberal views. Or maybe it's a trick statement: In neither case was he trying to gain the world: just one state or one nation.

3) Trying to head off the fear that many Americans would find Mormon beliefs weird (an unfair charge if ever there was one; all religious beliefs are weird to those who don't share them), Romney said: "There are some who would have a presidential candidate describe and explain his church's distinctive doctrines. To do so would enable the very religious test the founders prohibited in the Constitution." Great. So how come the preceding paragraph includes the following: "I believe that Jesus Christ is the Son of God and the Savior of mankind." Is this not a "distinctive doctrine?" Or is it okay to say this because it will appeal to the Republican base that shares these beliefs?

4) There is also a strong nod to conservative monotheism in Romney's speech. He says he admires aspects of other faiths, and then lists various Protestant sects, Catholicism, Judaism, and Islam. No mention of Hinduism or Buddhism, and the Judaism he describes is only orthodox Judaism (if that), since Romney praises "the ancient traditions of the Jews, unchanged through the ages."

5) Whereas JFK came out for strict separationism, Romney repeats a standard conservative talking point, lamenting that "in recent years, the notion of the separation of church and state has been taken by some well beyond its original meaning. They seek to remove from the public domain any acknowledgment of God. Religion is seen as merely a private affair with no place in public life. It is as if they are intent on establishing a new religion in America - the religion of secularism."

6) Overall, it's hard for me to know what the effect of this speech will be. As a secular liberal, I'm pretty clearly not part of the intended audience, so I can only guess, but I don't know that Romney said anything here that would put aside the worries of the conservative Christians who think that Mormonism is not actually a form of Christianity. I just don't get Romney's argument for why such people should prefer him to Huckabee, whom they regard as one of their own.

Boumediene Oral Argument

You can listen to the oral argument in Boumediene here. Unsurprisingly, the conservatives (well mostly Justice Scalia, actually) went after Seth Waxman (arguing for the detainees) on the constitutional question. Justice Scalia challenged Waxman to name a single precedent in which a non-citizen held outside the sovereign territory of the United States (or England) was entitled to habeas even though no statute so provided. Waxman couldn't do it but there are two reasons why this seems not so damning: 1) As to the U.S., even in Johnson v. Eisentrager, the Supreme Court indicated that location and alienage, standing alone, were not necessarily sufficient to defeat the constitutional claim; and 2) The practice in England, under a regime of parliamentary supremacy, does not translate directly. Furthermore, one could argue, as Judge Rogers did in dissent in the D.C. Circuit, that there is also no case in which a court expressly said the writ would not be available for someone like Boumediene.

Meanwhile, the liberals (mostly Justices Souter and Breyer) went after Solicitor General Paul Clement on the question whether (assuming that there is a constitutional right to habeas here), the DC Circuit review provided by the Detainee Treatment Act (DTA) for combatant status review tribunal (CSRT) determinations is an adequate substitute for habeas. Justice Breyer, in particular, argued that the DTA would not permit a detainee to bring certain kinds of constitutional challenges: e.g., he could not say that indefinite detention---even after a procedurally flawless determination that he was once an enemy combatant---is unconstitutional. Clement seemed to concede that this issue could not be brought before the DC Circuit but argued that there is no habeas right to make such an argument. Justice Kennedy, meanwhile, seemed to think that such an argument COULD be made before the DC Circuit, and thus the statute provides for an adequate substitute. And Justice Ginsburg twice suggested that the right thing to do in the case would be to reverse the DC Circuit by saying there is a constitutional right to habeas but to remand to that court for initial consideration of whether the statute provides an adequate substitute.

Bottom Line: If I had to handicap the outcome, I count 4 votes to affirm on the rationale provided by the DC Circuit (Roberts, Scalia, Thomas, Alito), 3 or 4 votes to say that there is a right to habeas here and that the statutory substitute is inadequate (with Justice Ginsburg possibly voting simply to remand for initial consideration of the adequacy), and one vote controlling the outcome (Kennedy, of course) finding that there is a constitutional right but saying that, at least in the current context, the DC Circuit review could be an adequate substitute. Not that my predictions tend to be very accurate.

Posted by Mike Dorf

Gitmo Suicides and Boumediene

The Supreme Court hears oral argument tomorrow (that's Wednesday for those of you who don't read this blog at night) in the Boumediene case, which makes the timing of a story about suicide attempts at Gitmo. The question of how detainees are treated at Gitmo is not technically relevant to the constitutional issue in Boumediene, of course, but neither was the treatment of prisoners at Abu Ghraib strictly relevant to the 2004 decisions in Hamdi and Rasul. Nonetheless, the release of the Abu Ghraib photos so shortly after the oral arguments in those cases is widely credited with having seriously undermined the government's credibility and contributed to the results in those cases.

Likewise here, stripped of its most technical aspects, the issue in Boumediene is whether the Constitution entrusts to the detention, treatment and trial of aliens held outside the U.S. (assuming Gitmo counts as outside the U.S.) to the Executive, subject only to such judicial review as Congress, as a matter of grace rather than constitutional duty, chooses to provide. Evidence tending to show that prisoners are being held in miserable conditions has a natural tendency to make the Justices less willing to trust the Executive (although the government denies that they are, calling suicide attempts a matter of propaganda).

I doubt that this issue will be raised expressly in tomorrow's oral argument (which you can hear on C-Span radio at 11:15 am). My FindLaw column previews the issues and draws a connection with the DC gun case.

Posted by Mike Dorf

So Long and Thanks for All the Fish . . .

. . . is what I might say (quoting the late great Douglas Adams) were I not a vegan. Why so long? No, I'm not killing Dorf on Law. Professor Sherry Colb and I will be moving to Cornell at the end of the current academic year. As reported first by Brian Leiter (of course), Cornell has hired Sherry ("outed" by Brian as having the dubious honor of being married to yours truly), myself and a mysterious "third senior scholar" whose identity is known to me but Brian has not yet revealed, perhaps because this scholar was not available to confirm or deny the move.

I sent emails today to my new colleagues at Cornell and my current colleagues at Columbia telling them, respectively, how delighted I am to be joining, and sad I am to be leaving, them. If that sounds like a contradiction, it isn't. It's the proverbial mixed emotions. Here I want to say a word to my current, former and future (i.e., next semester's) Columbia students, who might otherwise hear the rumors on the street and wonder what was up. And while I'm at it, I'll include the wonderful students I taught during my three years at Rutgers-Camden.

The word to all those past, present and future students is simply thanks. It has been a real honor to teach---and to be taught by---a diverse collection of inquisitive, hard-working, skeptical, and always challenging (in the best sense) students. By now the vast majority of students who took my courses have become accomplished lawyers. I hope that some of what you learned from me has been useful or at least memorable. Teaching all of you was both useful and memorable for me. And if you hated my class, please don't say anything about it to the students at Cornell.

Posted by Mike Dorf

How About Live Audio, Your Honors?

According to a recent press release, the Supreme Court will release the Boumediene oral argument audio recording on Wednesday, very shortly after the conclusion of the argument. (My FindLaw column will preview the argument Wednesday morning. Read the column and then listen to the argument to hear how off-base my analysis proves to be!). Same-day audio for very high-profile cases is a nice idea, but here's a better one: Live audio for all oral arguments.

Without revisiting the argument over cameras in the Supreme Court, there is nothing to be said for delaying audio an hour or two after the argument has occurred, rather than providing a live feed to interested media outlets. Surely the 1920s technology is available to the Court, and any worries about jeopardizing the Justices' privacy or the risk of Justices and lawyers "hamming it up" either doesn't apply to pure audio or, if it does, applies equally whether the audio goes out live or delayed by one or two hours.

Admittedly, there may not be a very large audience for your garden-variety ERISA case, but surely that's true of a large portion of what's on C-SPAN too (not to mention Fox Business Channel or Knicks basketball).

Posted by Mike Dorf

New Blog on Islamic Law

I don't usually post simply for the purpose of plugging another blog, but I'll make an exception to that principle for University of Pittsburgh law prof Haider Hamoudi, who has just started a new blog on Islamic law. His first post examines two recently noteworthy cases: the English woman jailed and exiled for calling a teddy bear Mohammed (in response to her students' request) and the Saudi woman sentenced to 200 lashes for being in a car with a man not her husband (and possibly for then having been gang raped). Hamoudi condemns these sentences but goes on to explain how the claim that they carry out "Islamic law" rests on numerous controversial premises. It's worth a read.

Posted by Mike Dorf

Eisgruber Respondeth

For everyone wondering how Chris Eisgruber would respond to my question whether a tendency to defer to institutional settlements could really be cabined off from ideological values as "procedural," wait no longer. Chris said that while deference to institutional settlements is part of what makes a Justice "moderate" along the procedural dimension, the procedural value on which he principally relies is "open-mindedness" towards new claims of justice. I'm all for that too, but I should say that this too can be characterized as an ideological position. Self-styled originalists, after all, might say that it's the job of the Court to enforce the old Constitution and for the political branches to be open-minded towards new justice claims. In the end, my mild skepticism may boil down to the sort of skepticism one often sees towards all process-based theories. Think here of the criticism by Larry Tribe of John Ely's process theory.

One further thought on Eisgruber's proposal for moderate Justices. The best way to achieve this would probably be a structural mechanism, such as a requirement of super-majority confirmation. We have a de facto version of that in the possibility of a filibuster of judicial nominees, but the threat of the "nuclear option" doing away with the filibuster is powerful. Thus, even though Justice Alito received fewer than 60 votes to confirm in the Senate, some of the Senators who ultimately voted against confirmation had earlier voted for cloture. Whether the Republicans would have "gone nuclear" if the Democrats had held fast and filibustered is not clear, but the very possibility may have had a chilling effect, and explains why we do not have a strong de facto super-majority requirement. Getting a real super-majority requirement for confirmation would require a constitutional amendment, which may explain why Eisgruber doesn't advocate it (as such an amendment would be extraordinarily difficult to enact).

Posted by Mike Dorf

The Next Justice

Christopher Eisgruber is the Provost of Princeton University and a former law professor at NYU. He is one of the most elegant writers on constitutional law, both in his solo work and in his collaborations with his former NYU colleage (and current Dean of the University of Texas Law School) Lawrence Sager. Eisgruber's most recent book, The Next Justice, argues for a new approach to the selection of Supreme Court Justices. I'll be talking about the book on a panel at Princeton this afternoon and thought I'd very briefly preview my remarks here.

Roughly half of The Next Justice addresses matters of constitutional (and to a much lesser extent, statutory) interpretation. In order to know what the confirmation process should look like, Eisgruber says, we need to know what it is that we want our Justices to do. His answer is that Justices apply "ideological" and "procedural" values in interpreting the open-ended (Sager would say "justice-seeking") language of the Constitution (and statutes). Ideological values vary greatly based on a Justice's background, experience and commitments, and map roughly onto the conservative/lberal divisions that we see in politics. Procedural values, however, are distinctively non-political, and include a commitment to the consistent application of principle, blindness to party interest and respect for the decision-making capacities of other institutions. Thus, on the merits, Eisgruber offers a vision of judicial decision making that is broadly similar to the one I offer in No Litmus Test: Law Versus Politics in the 21st Century. We each think that ideology matters to judging, but neither of us thinks that ideology alone matters. Judging is a distinct activity from legislating.

How should this translate into the appointments process? Presidents, Eisgruber observes, take account of the ideology of potential Supreme Court Justices, and so should Senators. They should generally seek, Eisgruber says, "moderate" Justices, by which he means those who are in the mainstream ideologically and who manifest a commitment to the procedural values that make judging an enterprise that is distinct from politics as such. I don't quarrel with the latter but I do have serious doubts about the former: If a very liberal (or very conservative) President has a very liberal (or very conservative) Senate, then why shouldn't they appoint very liberal (or very conservative) Justices? Eisgruber's answer is that it's okay to appoint one or two such Justices but that beyond this, the Court should be dominated by moderates because they are more likely to accept the institutional settlements reached by other branches and levels of government. He offers that latter point (deference to institutional settlement, which is a term used by Hart & Sacks, not Eisgruber, but which captures his meaning) as a matter of the Justice's procedural values. But it is not clear to me that the degree to which a Justice defers to institutional settlements can be placed in the "procedural" rather than the "ideological" column. And by hypothesis, in my example, the President and the Senate favor Justices whose ideology makes them less deferential to conservative (or liberal) institutional settlements than the ideology of a moderate would.

I'll report back on the panel tomorrow or over the weekend.

Posted by Mike Dorf

Middle Class Entitlements

“Entitlement programs” (to use the ugly phrase) will be an issue in the 2008 election. The ultimate Democratic candidate is likely to put forward a universal health care plan, and we can expect to hear more about President Bush’s recent veto of health care for children. The state and future of other social programs, such as social security, should be on the agenda as well, although perhaps only Senator Obama will be willing to talk about them.

As an article in the Economist pointed out last month, the conversation about health care centers around universality of coverage, not around cost. (The Economist proposed that Senator John McCain was at least asking “the right question” in focusing on cost instead.) Coverage is incredibly important, and the number of uninsured Americans is disgraceful and growing. Most of the uninsured are, of course, poor. Yet the challenge for Democrats in the coming election may be to ensure that universal health care is talked about in ways that also illustrate the benefits for the many middle class Americans who are uninsured, underinsured, or paying too much for their insurance.

Most of we post-Boomer generations came to political consciousness in the Reagan era or later. We have no personal memory of a time when Great Society-style social programs were widely discussed with hope and energy. (Remember: Bill Clinton instituted workfare.) Those of us that grew up not in poverty also have very little personal experience with the benefits that various social programs confer. Even among those of us that consider ourselves "progressive," what we know tends to be abstract, at the level of principle, and faded out from the years of public conversation in which bureaucratic sclerosis and cynicism about public action have almost become starting assumptions. One of the main things that many of us no longer know at a personal level, therefore, is how social programs can change norms and social structures in positive and profound ways. Leaving aside interesting proposals to reform the public sector, even old-style social benefits can have profound effects.

I am currently the beneficiary of one of the most generous social programs in North America: I recently embarked on a paid maternity leave from my job. For the last five years, Canada has provided for 50 weeks of government-funded “employment insurance” for new parents. The sums are not great – they amount to about $1400 per month at the most – but many employers top those benefits up for a period of time. In my case, my employer tops my wages up to 95% of my regular salary for 27 weeks. My husband’s employer will top him up to 75% for the balance of those 50 weeks. (These are generous employer top-ups, more generous than most.) Most importantly, we can split the year off between us.

The effect of the new parental leave benefits on social norms in Canada has been profound. My impression is that mothers who take a year off work to be with their new children are less likely than before to be perceived as not being committed to their careers. In fact, mothers who eschew the benefits and return to work early may even feel compelled at times to justify that choice. (Of course there are exceptions within certain employment subcultures, including those at many private law firms.) In addition, an increasing number of fathers/partners are taking some part of the year off as parental leave while these mothers return to work. It is no longer surprising to see men toting babies to neighborhood playgyms in the middle of the week, though they are still in the minority. At a societal level, the leave benefits have provided powerful public affirmation for men who choose to be with their children at this early stage, and it has reinforced expectations that fathers be involved parents to their children. At the personal level, the more equal distribution of primary caregiving in that first year can strengthen the bonds between infant and both parents, and can have a rebalancing and unifying effect on the family as a whole. I am lucky that I haven’t had to imagine having a spouse who doesn’t know how to change a diaper, or what our children like to eat.

Without this personal experience of a generous parental leave policy, I would not appreciate firsthand, from personal experience, the enormous and positive changes to social norms and individual lives that such an entitlement program can provide. As middle class Americans go to the polls next November, they should also be reminded that “entitlement programs” like universal health care coverage can still, even in our post-idealistic age, be forces for profound and positive social change.

posted by Cristie Ford