Kidney Theft and A Modest Proposal

The front page of Wednesday’s New York Times reports that police uncovered an illegal kidney-transplant program in India. The program targeted day laborers and other poor people, who were either deceived and then forced to undergo kidney removal or persuaded to sell their kidneys, so that wealthy Indians and foreigners – known sometimes as “organ tourists” – could receive kidneys unavailable to them through ordinary channels. One of the victims of the kidney ring became so ill after his surgery that he could not work anymore to support his destitute family. The story is disturbing and sheds light on the power of wealth to motivate predatory conduct toward the less fortunate.

In this post, however, I want to focus on the other people whose lives are implicated in the kidney story: the wealthy organ recipients. In a story of rich people raiding poor people for their organs, of course, the rich do not tug on our heart strings. It is often largely through the accident of birth that one is able to acquire wealth, and in any event, wealth does not entitle people to pressure or coerce the poor to supply them with organs.

If poverty and wealth are often unearned, however, it is no less true that good and ill health are often unearned. It is not self-evident that people who happen to be born with a kidney defect and/or become ill in adulthood have no right to ask the surrounding society for help. It is out of desperation, indeed the same sort of desperation that might motivate a poor but healthy man to sell one of his kidneys, that wealthy but sick people attempt to use their money to save their own lives. Though hardly praiseworthy, one can easily understand why they do what they do.

One could, in fact, invoke such desperation as evidence that organ sale ought to be permitted but regulated. The law of supply and demand is stronger than the criminal law, and it therefore makes sense for the law to minimize abuse within an inevitable business rather than drive it underground. Such was said (correctly) of alcohol prohibition, and Judge Posner has made this sort of argument in a variety of contexts (including, quite controversially, in condoning a market in babies).

Rather than criticize or defend such arguments, however, I would point out a simple but sad reality in the United States and many other countries: relatively few people consent to donating their organs upon their death. If there is a proper time to require redistribution from the “haves” to the “have nots,” it would seem to be when the “haves” are no longer alive. Rather than honoring the desire to bury or burn people’s earthly remains, the law could instead require that organs be available to others in need. After all, we already violate the wishes of the deceased in requiring autopsies, and there is often much more to be gained from a donated organ than from confirmation that a victim died of gunshot wounds to the head.

This proposal of the ultimate “death tax” probably sounds shocking to many, so let me suggest that a less radical idea could go a long way. At the present time, in the U.S. and elsewhere, the law presumes that we do not consent to donating our organs upon death. Let us change the law to make the default presumption that every person consents to donating his or her organs to save lives at death. To rebut the presumption, one must actively opt out. This has been the approach in Belgium, and they have not suffered the organ shortages plaguing our country and others. Perhaps if the desperate demand for organs could be met more effectively in western countries, their inhabitants would not be driven to act like starving men on a lifeboat who cannibalize those around them.

Posted by Sherry Colb

Mark my ears

As promised, my FindLaw column today examines President Bush's plan to ignore Congressional earmarks in the legislative history of budget bills. Yesterday, Bush issued an executive order doing just that. As I explain in the column, ignoring earmarks is not a bad idea, and given Supreme Court precedent, a legal one at that, but Bush is very poorly positioned to lead the fight against earmarks because: 1) they are small potatoes (about $17 billion annually) compared with the giant fields of potatoes (not to mention blood) he has poured into Iraq and has foregone through tax cuts; and 2) the premise that provisions outside a statute's text are not law is contradicted nearly every time that Bush issues a signing statement asserting his right to contradict a statute's text based on his own idiosyncratic and self-serving interpretation of the Constitution.

Here I'll raise one tangential point. The Administration says it's not bound by earmarks contained only in legislative history, and (in a fact sheet) cites the following language from Cherokee Nation v. Leavitt (2005):

where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency . . . .

(quoting Lincoln v. Vigil (1993), and in turn other cases). It's worth asking why the Court is uniformly hostile to legislative history in interpreting appropriations measures when the Justices remain divided over the relevance, if any, of legislative history in interpreting other statutes. For instance, even in Cherokee Nation itself, on a slightly different point, Justice Scalia wrote a separate concurrence restating his longstanding view that committee reports are just about always irrelevant to statutory interpretation. But he was the only Justice to make this point.

Let me suggest my solution to the puzzle: There isn't in fact a different rule regarding the relevance of legislative history for appropriations measures and other statutes; it's just that even those Justices who care about legislative history in general accept that it only comes into play where the statutory text is ambiguous; and where a statute's text makes a lump-sum grant to an agency, that pretty unambiguously confers on the agency the discretion to spend the money as it sees fit (consistent with other legal restrictions). But, I would venture that if the terms of an appropriation really were ambiguous, then the Justices who reject the Scalia view of legislative history in general would be willing to look to an earmark contained in a committee report for evidence of what Congress intended in the appropriation.

Posted by Mike Dorf

State of the Union

In my FindLaw column tomorrow I'm going to discuss President Bush's proposal---set forth somewhat cryptically in a paragraph of his State of the Union last night and also scheduled to be embodied in an executive order some time today---to attack earmarks. Here I'll limit myself to two observations about the State of the Union. I should preface these observations with the disclaimer that I didn't watch the actual address and so I'm basing this on the text.

First, it's notable that although the President said that the budget he will shortly propose to Congress "terminates or substantially reduces 151 wasteful or bloated programs totaling more than $18 billion," the speech mentions not a single program that Bush thinks warrants terminating or reducing. Indeed, he mentioned program after program that he said should be created or have its funding increased. Given that, given the fact that he also proposes to make his tax cuts permanent, given how small a number $18 billion is relative to the size of the federal budget overall, and given his continuing commitment to funding the Iraq War near its current level, his claim that his budget would lead to a surplus by 2012 cannot be taken remotely seriously.

Second, the Bush conception of bipartisanship appears not to have changed at all. In 2000 he plausibly ran as a "uniter" who had worked with Democrats in Texas. But people familiar with his record as governor sometimes pointed out that Texas Democrats in the 1990s were a pretty conservative lot, and so bipartisanship there meant going along with Republicans. Thus, in Washington, he has railed against partisanship any time Democrats (or even Republicans) have disagreed with him. In last night's speech, the clearest example was his pique at the fact that the temporary authorization for domestic surveillance will expire in days. The President said: "We’ve had ample time for debate. The time to act is now."

In other words, the purpose of debate, as Bush sees it, is for people who disagree with him to blow off steam, but once they've done that, they must come around and support whatever it is he wants to do. It does not appear to have occurred to him that the conclusion of the debate might be that his proposal was a bad idea. 356 days to go.

Posted by Mike Dorf

Omygod, I agree with Bill Kristol---and another thing

The hiring of William Kristol to lend greater ideological diversity to the NY Times lineup of regular columnists was met in some quarters with consternation. Unlike William Safire, who was generally conservative but in a principled way that led him to criticize Republicans no less than Democrats, Kristol has generally been more closely associated with a partisan style of opinionating (which is not to say that he doesn't sometimes criticize Republicans too). Thus, liberal-to-moderate readers of the NY Times worried that Kristol might be the "wrong kind" of conservative.

Whatever the merits of that worry, Kristol's column today is spot on, and but for the absence of her characteristic snarkiness, could have been penned by Maureen Dowd or (the never-snarky) Bob Herbert. Kristol correctly argues that former President Bill Clinton's effort to downplay Obama's (at that time merely) projected big victory in South Carolina by comparing it to Jesse Jackson's victories there in 1984 and 1988 is transparent racial politics. And he goes on to say (echoing Mitt Romney's nice line) that Americans are wary of putting Bill back in the White House. The only thing that disturbs me about the column is how much I agree with it, leading me to think that Kristol, in trying to help Obama, thinks the good Senator from Illinois would be an easier candidate for the Republicans to defeat in November. I disagree with that calculation (if it is one), but I so respect Kristol's evil genius that it causes me great concern.

Meanwhile, speaking of the Op-Ed page, I usually skip the little paid box in the lower right-hand corner of the Opinion Page, but for some reason today I was drawn to Washington Legal Foundation Chairman Daniel Popeo's rant. (The Times website does not appear to post these ads. The WLF website does, but the page at which it archives them, doesn't yet have today's. Check back here soon and follow the link.) It's really a piece of work. I don't begrudge the WLF its view that all left-of-extreme-right political activity is a plot to destroy free enterprise, but what's truly impressive about this essay is its use of assertion after assertion purporting to be fact, without any acknowledgment that many of these assertions are highly controversial.

My favorite from today is the claim that Ralph Nader is a hypocrite for having made a "very substantial living[] off capitalism." Now there's one gigantic reason to despise Ralph Nader. (Hint: It rhymes with "He put George W. Bush in the White House.") But to accuse Nader---famous for sleeping on friends' couches when he travels---of limousine liberalism is a bit much. As a fun game, readers are encouraged to pick random sentences in Popeo's ad and figure out what would be needed to show them to be true (or more likely, false).

Posted by Mike Dorf

Nonsense on Stilts No Longer

If he had been buried rather than preserved as a relic for University College London, Jeremy Bentham might well be spinning in his grave over recent developments at his home institution and in UK law. Or so I conclude based on my ever-so-brief trip across the pond.

Bentham famously referred to natural rights (and viewed deontological theories of justice more broadly) as "nonsense on stilts." His views on law ran strongly towards the replacement of the common law with statutes enacted by legislatures pursuing the greatest good for the greatest number. And in a country with a tradition of parliamentary supremacy, Bentham's work cast a long shadow over English jurisprudence. In modern times, H.L.A. Hart, Joseph Raz, and other positivists may be seen as the heirs to the Benthamite view. Very broadly speaking, positivists believe it is possible to give a descriptive account of the law without making normative judgments.

Positivism's fiercest and most determined critic has been Ronald Dworkin, who, in his book Taking Rights Seriously and in other writings, has directly challenged Bentham's rights-skepticism. Law, Dworkin says, is an interpretive process. The job of a judge in a hard case is not simply to figure out what the legislature or other sovereign lawgiver has said (because what makes the case hard is precisely the fact that the lawgiver did not clearly address the circumstances presented), but to give an answer that best "fits" and "justifies" the law as a whole, where justification invokes notions of political morality. By contrast, positivists say that in hard cases, where the law is, in Hart's term, "open textured," the judge has discretion to reach a variety of answers. Although Hart himself did not insist on this point, many positivists draw the conclusion that accordingly, judges should exercise such discretion cautiously. Thus, a rough but generally fair characterization of jurisprudence over the last half century is to say that Dworkinians have been more supportive of "activist" judging than have positivists.

It's also fair to say that, until recently, Dworkin had greater influence in the United States than in the UK, where the Bentham/Hart view tended to be the orthodox one. Yet over the last decade or so, Dworkin has gained influence with the Law Lords. There are a number of possible causes of this phenomenon, but I'll point to two, both somewhat ironic.

First, Dworkin left Oxford for University College London about a decade ago (while continuing to split his time with NYU), and in that time has had more opportunities to meet with, and thus exert influence on, the Law Lords. Holding (of all things!) the Bentham Chair, Dworkin has also moved UCL much closer to his own views. Bentham is spinning indeed.

Second, in exactly the same year (1998) that Dworkin left Oxford for UCL, the UK Human Rights Act became effective. To interpret its open-ended provisions, the Law Lords naturally looked for a theory of interpretation that would provide guidance, and as positivism could only instruct them to exercise their discretion, Dworkin's coherentism was a natural place to turn.

Why is that second development ironic? Because the Human Rights Act---while formally preserving parliamentary supremacy---moves the Law Lords into a more counter-majoritarian role than they played when their job was simply to interpret statutes and make common law decisions, each of which could be superseded by a simple Act of Parliament. Under the Human Rights Act, the government is not formally obligated to implement a Law Lords declaration of incompatibility between ordinary legislation and the Human Rights Act, but the Act places great pressure on the government to do just that. Thus, during just the period when the cost to democratic values of "activist" judging have increased, the Law Lords have moved towards a more activist methodology.

Finally, I should note that I point out these ironies without in any way meaning to suggest that the increased influence of Dworkin's views is unwarranted on balance.

Posted by Mike Dorf

Time Served & Cheerio

Apparently the government is disappointed that Jose Padilla was sentenced to 17 years rather than life in prison for his terrorism conspiracy conviction. (See NY Times story here.) Fair enough. But part of the disappointment can only be described as mystifying. The government objected to the judge's crediting Padilla for time served for his time in military custody. I understand the form of the objection: During that time, Padilla was not being held in connection with any criminal charge, and so that custody should not have been deemed related to the criminal conviction. But the substance of the objection is preposterous.

If Padilla had been held by a foreign power, that would be one thing; but he had no control over which division of the U.S. federal executive held him. Likewise, if Padilla's confinement had been un-prison-like, something closer to house arrest, that too might not qualify as time served. But Padilla was held in isolation for long periods of time and subject to repeated interrogation. He was arguably serving time under worse conditions than he will face during (the balance of) his sentence. Finally, it's worth noting that persons convicted of crimes are routinely given credit for time served awaiting trial, even though pre-trial detainees are not subject to punishment as such. Yet in that context, the law wisely looks past the label and recognizes that time in prison (or jail) is time in prison (or jail), full stop. The judge made the right call here.

And now another brief break from blogging. I'm taking a short trip to London to give a lecture at the Faculty of Laws, University College London. The lecture (advertised here) has the catchy title The Morality of Prophylactic Legislation (with Special Reference to Speed Limits, Assisted Suicide, Torture, and Military Detention). (The UCL website lists a slightly different, and equally "catchy," title for my lecture.) I'll report back on the lecture and the Q&A soon.

Posted by Mike Dorf

Unintended Consequences?

In the latest in their occasional Freakonomics column in this past Sunday's NY Times Magazine, journalist Stephen Dubner and economist Steven Levitt tell three stories of unintended consequences. One of their two principal modern examples involves the Americans With Disabilities Act, which, they say, had the perverse effect of lowering the employment rate of Americans with disabilities. Citing a study by economists Daron Acemoglu and Joshua Angrist , Dubner and Levitt explain: "Employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoided hiring them in the first place."

An interesting story, but is it true? Well, for one thing, it's not clear that Dubner and Levitt understand the argument they're reporting: Fear of back-end lawsuits by dismissed members of a protected class is a frequent argument made against non-discrimination mandates in general, but the particular worry with respect to the ADA has typically been that its requirement of "reasonable accommodations" for disabled workers would impose higher costs on employers for workers they don't fire. The reasonable accommodation requirement of the ADA distinguishes it from Title VII, the general federal anti-discrimination in employment statute. By failing to confine their argument to the disability context, Dubner and Levitt (perhaps unwittingly) suggest that all anti-discrimination law is perverse.

What about the core empirical claim? Here's what Washington University of St. Louis Law Prof. Sam Bagenstoss had to say in a 2004 article in the Berkeley Journal of Employment and Labor Law:

In brief, though I find it hard to disagree with the claim that the statute (at least initially) imposed some negative pressure on employers' decisions to hire some people with disabilities, critics of the statute have argued well beyond their data in urging that the ADA be abandoned. To the contrary, the data suggest that much (though probably not all) of the employment decline for people with disabilities resulted from factors extrinsic to the statute. In particular, I find quite plausible the argument that the 1990-1991 recession pushed an unusually large number of people with disabilities out of the workforce and onto the SSDI rolls--an argument pressed by the economists John Bound, Timothy Waidmann, David Autor, and Mark Duggan--though it is difficult empirically to disentangle that phenomenon from the effects of the ADA. Moreover, whatever the ADA's short-term effects, it seems likely that the statute's net long-term effects on employment for people with disabilities will be positive.

Dubner and Levitt could be forgiven for not reading all of the relevant law review literature; they are after all, not legal academics or lawyers, and disciplinary boundaries are often substantial. But even if they were unaware of the Bagenstoss piece, surely they must know of the whole book on the subject that Bagenstoss was reviewing, as it is very much a work of economics.

In addition to the factors Bagenstoss cites, one might also note---though Dubner and Levitt fail to do so---that discriminating against disabled persons at the hiring phase is also illegal. And as various scholars have noted---including Yale Law Prof Christine Jolls (also an economist) in a 2000 Stanford Law Review article ---there is relatively lax enforcement of the ADA's prohibition of discrimination in hiring. To be sure, stricter enforcement at the front end would not be costless, and thus Dubner and Levitt could rationally oppose it on those grounds. But they don't even mention the front-end enforcement possibility.

At the end of their essay, Dubner and Levitt admit that not all laws have perverse consequences. Yet they leave the clear impression that they think the ADA does and inevitably must. Both claims are highly controversial. Dubner and Levitt present them as unarguable fact. Freakonomics indeed.

Posted by Mike Dorf

MLK v. LBJ

The official celebration of the birthday of Dr. Martin Luther King, Jr., is a good occasion to reflect on Senator Clinton's recent dig at Senator Obama. Suggesting that Obama is all windy rhetoric to her substance, Clinton compared King to Lyndon Johnson, who, as President, signed the Civil Rights Acts of 1964 and the Voting Rights Act of 1965. It takes a detail-oriented (and white?) President, Clinton suggested, to translate hopes into law.

Putting aside the question of who deserves how much credit for what, it's worth recalling that King himself was a big believer in bringing about legal change. He was not someone who thought that changing hearts and minds was a substitute for changing the law. Rather, he thought that (in today's academic lexicon), it's important to work on both informal social norms and formal legal rules. Or as Dr. King put it much more pithily, "It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that's pretty important."

Posted by Mike Dorf

Stupid Laws, Take Two

A reader who wishes to remain anonymous sent me an interesting follow-up to my post on "stupid laws."
I thought it sufficiently interesting to post it here. Note that I'm going to be tied up for the next few days and thus may not post again until the end of the long weekend. But perhaps one of the other bloggers will, or I won't be able to help myself. Anyway, here's what Reader X said:

I understand when judges distinguish in moderate tones their rulings from their policy preferences---I believe Justice O’Connor has written in some opinions that “if I were a legislator, I might not vote for this law” or something to that effect. This writing has value, I think, because it has the potential to placate disappointed audiences. Sometimes a little rhetorical empathizing with a losing party can be conducive to that party’s acceptance of the outcome. This kind of language also furthers the perception (“illusion” for the strong realists) that law is not just politics, and that judges don’t use the bench as a means to further their own policy preferences.

But a relatively restrained “we affirm but don’t endorse this law” is a far cry from “the law is stupid,” isn’t it? It actually bothered me a little---who are Justices Stevens and Souter to pass non-legal judgment on New York’s judicial elections? It plays into the criticism of the Justices as philosopher kings, sharing their enlightened views with the common people who are fortunate to receive their wisdom. Sometimes indignation or non-legal opining seem appropriate---e.g., criticizing an overzealous executive who blithely disregards constitutional rights; decrying a particularly heartless criminal act; rejecting patently frivolous arguments in terms meant to discourage such arguments in the future. Such remarks can provide helpful signaling (President Bush, be warned: we are not going to rubber stamp your war on terror actions; kids, don’t try to replicate Wesley Snipes’s stunts or his tax strategies) and can serve communitarian values (society, we must let this criminal off on a technicality, but we recognize what an awful person he is and our sympathies lie with the victim). But Justice Stevens seemed content to trash a system that wasn’t morally outrageous or deserving of any special condemnation. Instead, the system is just, well, stupid. If anything, though, the other opinions seemed to demonstrate the intractability of the problem. Justice Scalia noted that the current system was an effort at reform, and, anyway, that smoke-filled rooms are the unfortunate norm in politics. Justice Kennedy’s concurrence explained just how difficult it can be to establish a judicial election system that promotes independent and worthy lawyers onto the bench. In light of his colleagues’ observations, Justice Stevens’ remarks seem even more inappropriate.

A Judge’s opinion that notes the stupidity of a statutory framework for no reason other than to share his personal views seems to serve no helpful purpose. The losing party only becomes more exasperated because she simultaneously learns that a) she’s correct to be offended by the state of the law, and b) there’s nothing the judiciary can to do to help her. The legislature’s constitutional victory is tarnished by the revelation that its laws are stupid. And the court loses a little bit of respectability because the judge can come off as arrogant and incapable of verbal restraint.

Posted by Mike Dorf but written by Anonymous

"The Constitution Does Not Prohibit Legislatures From Enacting Stupid Laws"

Thus spake Justice Stevens, concurring in yesterday's decision in New York State Bd. of Elections v. Lopez Torres, attributing the sentiment to Thurgood Marshall. The occasion for this remark was the upholding of New York's system of selecting nominees for judicial election by party convention (pejoratively, "smoke-filled rooms," although not in NYC, where the smoke would be prohibited) rather than by primary. In rejecting the 2nd Circuit's approach, which found a right to a "fair shot" of a candidate for judicial office to get on the ballot, Justice Scalia's opinion for the Court (which Justice Stevens joined) invoked the usual sorts of arguments one sees when a court says that the Constitution does not forbid all practices that could be questioned on policy grounds.

Here I'll limit myself to two observations: (1) It's striking that just about nothing in Justice Scalia's opinion turns on the fact that this is an election for a judgeship. One might think that the stakes are different, and that the public has a greater claim to participation, in an election for a legislative or executive office, but as I read the majority opinion, it would apply equally to the elimination of party primaries in candidate selection for other sorts of offices as well. In a concurrence in the judgment, Justice Kennedy (joined on this point by Justice Breyer) does suggest that the special nature of judicial elections should factor into the analysis, but he reaches the same conclusion as the Court (mostly because he thinks that the alternative means for a candidate getting on the ballot are adequate).

(2) Justice Stevens is on something of a "stupid laws" kick. He said more or less the same thing in his majority opinion in Kelo v. New London, practically inviting state legislatures to disavow the use of eminent domain for private development. And in the concluding paragraph of his opinion for the Court in Gonzales v. Raich (rejecting a Commerce Clause challenge to the failure of federal drug laws to exempt medical marijuana), Justice Stevens practically urged "the democratic process" to change the law. These observations are certainly fair enough, but it's not clear what audience they're intended to reach. Anybody who follows the Court's work at all understands that a judicial decision to uphold a law is not necessarily an endorsement of the law's policy; and people who don't follow the Court's work are unlikely to learn of these nuances. As evidence for the latter proposition, we need look no further than to the furor that Kelo caused, notwithstanding the disclaimer. (If you're someone who thinks Kelo was wrongly decided AND who understood the nuance, that's fine; this is a point about public opinion in general.)

Posted by Mike Dorf

Another Hat

As I hinted in yesterday's post, I am now formally affiliated with a law firm. Since the 1st of the current year, I have been "Special Counsel" at Dewey & LeBoeuf, the post-merger name of the former Dewey Ballantine and LeBoeuf, Lamb, Greene & MacRae. Over the course of the last several years, I have collaborated with Dewey Ballantine on an ad hoc basis, with my work on the constitutional challenge to NAFTA Chapter 19 being the most substantial case.

Needless to say, I'm delighted with the more formal affiliation. Of course, my primary professional role (both at Columbia for the duration of the current academic year and at Cornell beginning in July) remains that of scholar and teacher, but in forging an ongoing relationship with a law firm, I'm hoping to continue to bridge what I regard as a widening gap between the world of practicing lawyers and the academic world.

I certainly do not subscribe to the view that legal academics must be practicing lawyers in order to make a positive contribution to scholarship and teaching. There is room in the academy for a great many approaches, and some of the most important insights will often come from people whose principal expertise is in an allied field---such as history, philosophy, economics, and the social sciences more broadly. People with training in these fields may lack the inclination to maintain a (or ever to set) foot in the world of legal practice.

Nonetheless, I also think that it would be a great shame if the legal academy were to divorce itself completely from the practice of law. More than a few senior scholars who used to be lawyers go to the well of dated experience for problems to elucidate, when a more active involvement with current cases (a term I use broadly to include transactional lawyering as well as litigation) would alert them to new problems. I speak here from personal experience. My work on the NAFTA case gave rise to two law review articles on problems I never would have thought about were it not for encountering them in the course of a real-world case.

Of course, there are risks involved in wearing multiple hats, the most obvious being the potential for a conflict of interest. If I represent a client who would be advantaged by the law moving in direction X, that might "corrupt" my academic judgment, leading me to argue in favor of position X when my best objective analysis might lead me to favor Y. But I think this risk is both overstated and easily managed. It is overstated because all legal analysis is affected by the totality of a scholar's experience. Pro bono representation of a client, no less than paid representation, can "corrupt" a scholar's views, because once a lawyer takes on a client, she is obligated to make all the best arguments she can for that client's benefits. Thus, even if you are led to represent a client pro bono by agreement with his cause, your duty of loyalty may lead you to take positions on his behalf with which you do not fully agree---and those positions can then affect your scholarly work in exactly the same way that positions taken on behalf of paying clients can. One can avoid these problems by not representing any clients, whether or not for a fee, but only at the cost of distancing oneself from the advantages of continued experience.

Moreover, to the extent that the problem is real (and I acknowledge that it can be), the proper remedy should be full disclosure. Whenever I have written about a subject that came out of or was even slightly related to my representation of a client, whether pro bono or for a fee, I have disclosed that fact in the relevant work, thus putting the reader on notice that she should be only as persuaded as my argument warrants (not that readers should ever be persuaded for any other reasons).

I think it unlikely that a scholar will often disingenuously advance an argument just so it can serve the interests of a client. More often, the risk will be of a kind of chilling effect: the scholar will avoid some subjects altogether because her duty of loyalty to the client prevents her from stating, in an academic article, positions adverse to the client's interests. I think this probably happens from time to time, and it is a cost of representing clients, but one I judge worth absorbing for the benefits of engagement described above.

As I am not one easily subject to chilling effects, I should say now for the record that the views expressed by me on this blog and in all my work under my own name are entirely my own, and do not necessarily reflect the views of Dewey & LeBoeuf or its clients, or Columbia, or Cornell, or anybody else.

Posted by Mike Dorf

A Militia of One? Our Brief Says No Way

A short piece in Sunday's NY Times mentioned my debate late last year with Robert Levy of the Cato Institute, who is one of the lawyers representing the plaintiff in Heller v. D.C. , the Second Amendment case pending before the Supreme Court. The article mentions my rejoinder to the argument by Mr. Levy that the operative clause of a constitutional provision should be given its full natural meaning, even if the conditions in the prefatory clause do not hold. As I noted on this blog at the time (here), Levy provided an example in which "the right to keep and read books" is justified by a prefatory clause that states that declares "A well-educated electorate, being necessary to the self-governance of a free state . . . ." Levy thought it self-evident that the "keep and read books" clause would apply to all books, not merely those connected to educating the electorate, but I said this was hardly obvious; pornographic books, for example, might not be covered. Certainly, if one were to take an originalist persepctive, one would want to know how far the framers and ratifiers (or, on a slightly different view of originalism, a competent speaker of the English language familiar with the relevant terms of art), would have thought the "keep and read books" provision went.

Having just finished doing some work on an amicus brief in support of the District in the case, I must say how convinced I now am that---judged by traditional criteria---the best reading of the original understanding of the Secondd Amendment is that it protects a right of the States. Our brief (on which I came in near the end, joining a pro bono team including lawyers from Dewey & LeBoeuf, where I moonlight), emphasizes a number of points, but here I'll just highlight one: The ratification debates over the original Constitution---out of which came proposals for what became the Second Amendment and the Bill of Rights more broadly---focused just about exclusively on the question of whether the federal power to arm the state militias included a power to disarm the militias. The Second Amendment was overwhelmingly seen as a mechanism for ensuring state authority over arming, and regulating, the state militias, without undue federal interference.

To be sure, constitutional interpretation is not only about original understanding, but this is the ground on which proponents of the individual right view have chosen to make their case, and it now strikes me as a weak one. The Founding generation may have believed in a right to armed self-defense, but as a natural right that was not the focus of what became the Second Amendment. The best argument for an individual right of armed self-defense would thus be rooted in the Ninth Amendment (although I still think it should probably fail), but for reasons probably having more to do with ideology than tactics, most of the supporters of the individual right view appear to be allergic to that kind of argument. (Randy Barnett is an exception, as are many of the folks at Cato.)

Posted by Mike Dorf

Palmore Redux

In a comment on my post on Palmore v. Sidoti, one of my regular readers (Sobek) made what I regard as a valid objection to the outcome of the decision: That it is troubling to knowingly subject a child to prejudice in order for the court to keep its hands clean, rather than to make a custody decision based on the child's best interests. I'm not persuaded that this means the case was wrongly decided, but I do think it means the case was a difficult one.

Indeed, I was so confounded by this point that I wrote my latest FindLaw column as an expansion of my earlier post. But in the column, I distinguish between Palmore---which I now think is a hard case---and the Title VII cases that reject satisfying customer preference as a ground for discrimination. I then conclude that the question whether to vote in anticipation of others' potentially racist or sexist votes is more like Palmore.

Here I'll just make one final observation: It should go without saying that there are perfectly legitimate reasons for voters to decide not to support Senator Obama or Senator Clinton for President that have nothing to do with race or sex. Indeed, I could have turned the question around. Suppose you believe that part of Obama's appeal is that he is an African-American candidate who does not make his racial identity the core of his politics. That is, suppose you think that Obama actually gets a boost from his race. If you are also committed to color-blindness, does this obligate you to vote AGAINST Obama? (Substitute Clinton and sex for Obama and race if you prefer.) If that seems ludicrous (and not just because very few Democratic primary voters are committed to color blindness), does that tell us something about the limits of the colorblindness concept?

Posted by Mike Dorf

Deadlines, deadlines

That is both a lament about how behind I am on so many fronts (but not blogging!) and a reference to the fact that in less than a year we have seen 3 high-profile cases in which a litigant paid dearly for missing a deadline.

First, we had the Supreme Court's outrageous decision in Bowles v. Russell, denying a habeas corpus petitioner's right of appeal on the ground that he missed the properly calculated filing deadline, even though he complied with the deadline as calculated and told to him by the federal district judge. (See my discussion of the case here.) Then came the Texas man who was executed by lethal injection---despite a de facto moratorium on such executions pending the Supreme Court's review of the issue---because his petition for a stay was delayed by a computer malfunction and, in the words of the presiding judge of the Texas Court of Criminal Appeals, "we close at 5," even though other judges were in the courthouse and would have entertained the petition. (See story here.)

And most recently, we have the case of the one-minute late courier, in which a $1 million fee application was denied because the courier arrived, well, one minute after the deadline, due to unexpectedly heavy traffic. "[T]he entirely foreseeable obstacle of traffic in Southern California in the late afternoon . . . cannot justify an enlargement of time," said the judge.

Is there a trend in these three unrelated cases? Maybe, maybe not, but I do think there is at least a political irony. Strict adherence to deadlines is a hallmark of modern formalism, which is in turn a creature of the political right. Yet in each of these cases, I daresay that most people would say that the courts have lost sight of the point of litigation as a means of dispute resolution: namely, decisions on the merits. Of course, no legal system could function without deadlines, but in each case there was a good reason to think that the judge had discretion to permit the filing. The cold insistence on deadlines in these circumstances looks uncomfortably like the mindless bureaucracy run amok that conservatives are supposed to detest.

Posted by Mike Dorf

Palmore v. Sidoti in the Voting Booth

In 1981, a Florida family court judge was faced with a battle for custody of a four-year-0ld white girl between her parents, both themselves white. The girl's mother initially had custody when the parents' marriage broke up, but the father sued for a change in custody based on the fact that the mother remarried a black man (after a brief period of cohabitation with him). The judge disclaimed any racist motives on his own part, but said that sadly, children of interracial couples face discrimination, and thus the best interests of the child favored giving the father custody. In a unanimous decision in the case, Palmore v. Sidoti, the Supreme Court reversed, holding that the judge's taking account of other people's discriminatory motives amounted to unlawful race discrimination on his part.

The principle of Palmore v. Sidoti is a broad and important one. It explains why, for example, an employer violates Title VII if it denies a job to an applicant based on race (or other forbidden grounds of discrimination) because the employer believes that customers prefer to deal with employees of a particular race. In part the Palmore principle simply eliminates an excuse for discrimination: Someone who is himself a racist (or sexist or whatever) shouldn't be able to hide behind the alleged preferences and prejudices of others. But it's not just about pretexts. The Supreme Court decided the case---rightly I think---even on the assumption that the judge would have made a different decision were it not for the prejudices of society.

And so we come to the election. Suppose you think there is a Bradley effect---in which some number of white voters tell pollsters that they support a black candidate but then vote for the white candidate---or that you think sexism accounts for some of the high negatives of a candidate that you otherwise support. Should you consider yourself bound by the Palmore principle (as a matter of honor though obviously not as a legal matter) to put such issues aside in considering which candidate to vote for in your party's primary? If electability is ordinarily a legitimate criterion in selecting a candidate, does it become illegitimate if you believe that the reason why one candidate is not so electable is racism or sexism?

What if you think the Bradley effect is bunk? Might the "Bradley effect effect" be a reason to deny your vote to the black candidate? Or should you just not worry about such meta-meta considerations on the grounds that they're inherently unpredictable and either way (assuming a two-person race for the Democratic nomination), some people will oppose the nominee on discriminatory grounds?

Special shout to any reader who can give a plausible definition of the "Bradley effect effect effect." (But not to someone who says this post is an example of it: the effect of the Bradley effect effect is that other bloggers write about the Bradley effect effect.)

Posted by Mike "Anything You Can Do I Can Do Meta" Dorf

Blogging Chain Letter

I discovered yesterday that I have been "tagged," i.e., singled out by another blogger as someone assigned to complete a task---in this case to make claims in 4 categories---and then to "tag" someone else. I was tagged by Jim Chen, blogger at Jurisdynamics and Dean of the University of Louisville School of Law. I hate chain letters but this one seemed kind of fun, so the compromise upon which I've settled is that I'll accept my assignment but not tag anybody else. Of course, if any other bloggers (or normal people) out there want to make their contributions, they should feel free to consider themselves hereby tagged. If this arrangement violates the rules of the "meme" (which is really just a polite way of saying chain letter or virus), so be it. I accept the curse of the cyber-gods.

Here are the categories and my answers:

1) Headline I’m most fearful of seeing in 2008:

Justice Stevens Announces Retirement: President-Elect Huckabee Promises to Name a "Strict Constructionist"

2) Headline I most want to see in 2008:

Law Professor Awakens From Bizarre Eight-Year Nightmare: Dreamed That George W. Bush Was President

3) Headline I most expect to see in 2008:

Bush, Leaving Office, Fully Pardons "Scooter" Libby, Calling Him "a Decent Man Who Paid His Debt"

4) Headline I least expect to see in 2008:

Giuliani, Seeking Votes of Swing-State Weasel Lovers, Reverses Prior Stand Against Ferrets

Oh, and if you're looking for something more serious, read Cristie Ford's post on Senator Clinton, just below.

Posted by Mike Dorf

Feeling badly for Hillary Clinton?

– not exactly because she welled up on camera. On Monday, Mrs. Clinton’s eyes filled with tears when answering a question about how she managed to keep going through the difficult campaigning process. By Tuesday evening, she had won the New Hampshire primary. I felt badly for Clinton on Monday, and it hasn’t totally dissipated with the win.

Predictably, Clinton’s tears are discussed in gender terms (see, e.g., Steinem and Dowd in the New York Times.) These particular commentators are women of the first feminist generation. They’re not the younger women that reportedly came out for Clinton in New Hampshire. Because there is a generation gap between these groundbreaking feminists and (“post-feminist”?) women in their twenties, it’s hard to know whether these younger women agreed with Gloria Steinem that Clinton’s tears were “courageous,” or whether, not (yet?) hardened by the boardroom battles of the past few decades, they simply related to Mrs. Clinton personally through her open emotionality. Just as likely, the tears had little or nothing to do with her win.

The reason I still have sympathy for Clinton is evident in Steinem’s comments, even though those comments were meant to be supportive. In suggesting that Clinton’s tears are “courageous,” Steinem is suggesting that she had a choice – to well up, or not to well up. This comment only makes sense from within the weird debate the media is engaging in over whether Clinton’s tears were genuine and unplanned, or a calculated move to make her seem more “human.” Every candidate is under enormous pressure and is surely exhausted at this point. They are trying to win, through a highly unpredictable and public process, a party nomination that they desperately want. In those circumstances, is it surprising that any candidate’s armor would develop the odd chink? And, seriously, would any other candidate’s authenticity be questioned to the same degree, in the same situation? Clinton wasn’t crying crocodile tears for someone else’s plight; she got choked up because, essentially, she was talking about how tired she was, how upset she was about the directions the present administration had taken the country, and how badly she wanted what she was running for. (Just for the record, bearing in mind the gender angle, I’d say that tears like that suggest nothing about whether someone has the mental toughness to be President of the United States.)

The fact that so many people question Clinton’s emotions, when there’s nothing about the context to suggest she was being insincere, just shows how damaged Clinton is as a candidate. Of course it is hard for women running for positions of power to appear both tough and likable at the same time, and of course Clinton’s run would be seen very differently if she were a man. There’s no question that quite a lot of the antipathy toward her has to do with her gender, but there’s more than that going on. Her real problem as a candidate has less to do with gender than with history and personality. What it seems she’s having trouble shaking is the perception that the Clintons are lacking a moral core – that they’re prepared to do absolutely anything to win. Even in 2008, when it seems that Democrats have a strong chance of retaking the White House (as, um, they did in 2004), this makes Clinton a risky nominee for the Democratic Party.

- posted by Cristie Ford

What's So Funny 'Bout Original Understanding?

Yes, yes, I know, the big news is the NH primary, but I haven't the heart to blog about it. Okay, maybe a tiny bit. A week ago, if you had said that Obama would win Iowa handily and finish 3 percentage points back of Clinton in NH, I'd have said that he had the momentum in this race. But the implosion of Clinton's lead over the weekend created such high expectations for Obama that a NH close second was a disappointment, giving Clinton the opportunity to claim that her campaign has the momentum. In the next week, look for the Clinton camp to sell the story that of course Obama will win South Carolina, given how many African American voters there are in the Democratic primary there, thus claiming that Obama's victory in SC "doesn't count," and leaving her supposedly with the momentum heading into "Tsunami Tuesday." As for the Republicans, what can I say? Fred Thompson, we hardly knew ye.

Now, on to the title of this entry, which is a brief follow-up to my post from this past Saturday's AALS session on the Second Amendment. During the Q&A, there was some interesting discussion of what the impact would be of a ruling invalidating the DC gun ban on federal laws that make it a crime to "use" a gun in connection with other offenses. The Court has interpreted use fairly broadly and the penalty enhancers for gun use---even when the relevant guns were merely owned but not used in the conventional sense---are very substantial.

The questioners and panelists had interesting things to say about this question, but I noted that what they had to say was almost entirely based on analogical and prudential reasoning. No one asked what the original understanding was with respect to penalty enhancers, and for good reason. There was no original understanding on this issue. As I observed, should the Court recognize a right to individual ownership and possession of firearms, it will have to basically invent a whole set of doctrines about the scope and limits of that right. Professor Volokh, who supports the individual right interpretation of the Second Amendment, nodded in agreement.

And so the question for self-styled originalists is how much of constitutional adjudication concerns such basic questions as whether the Second Amendment is an individual or a state right, which can, at least in part, be answered by reference to the original understanding, and how much of constitutional adjudication concerns such secondary questions as what doctrines (in Professor Fallon's terms) "implement" the underlying constitutional values? If we are much more concerned with the second kind of question, that is a very substantial limit to the utility of originalism.

Posted by Mike Dorf

The Wisdom of Crowds?

Here's something fun. Point your browser to one of the websites at which people can trade "shares" in candidates' likelihood of winning the nomination, the Presidency, above a certain fraction of the Electoral College and so forth. The Iowa Electronic Markets are the best known of these "political markets," but my personal favorite is Intrade because it's the easiest to use. In any event, it's considered a sign of the wisdom of crowds (also the title of an excellent book by James Surowiecki) that these markets more accurately predict the outcomes of the Presidential race than do opinion polls.

Well, it may depend on your time frame. Over on Intrade, shares of Hillary Clinton to get the Democratic nomination were trading at 70 cents (meaning if you paid 70 cents you would earn a dollar if she got the nomination and nothing if she didn't) on January 1st, but as of 10:30 p.m. on January 7th, Clinton shares were down to 28 cents (with a bid/ask spread bringing their real value even lower). This sort of stock price crash seems pretty clearly to have been a reaction to the polls, rather than a leading indicator. Clinton's share price fell precipitously after the Iowa Caucuses, but then fell precipitously again after post-Iowa polls of New Hampshire voters began to show Obama opening and then widening a lead in the Granite State.

Somewhere in that observation about the political markets is a cautionary tale about the herd mentality. The wisdom of crowds works best---as Surowiecki shows---when many people actually know a little bit and their errors are random, so as to cancel one another out. That's why the average guess as to the number of jelly beans in a jar is so frequently better than any actual guess. But political marketplaces are guesses about what other people are likely to do, and as to these, it's not at all clear that errors are randomly distributed. Especially if most "investors" are getting their information from the same sources, any systematic biases in those sources will be reproduced in the investors' wisdom.

If this all seems like an esoteric amusement, it's worth recalling that serious academic and real-world proposals are afoot for important government decisions to be made using markets of this sort. The idea, despite its guilt by association with John Poindexter, is not inherently crazy, but it has definite limits.

Posted by Mike Dorf

Still too hot to handle

For those of you who were terribly disappointed that you were unable to attend the "hot topics" panel on reproductive rights at the AALS last Friday, you can find a useful summary here (on the aptly named Reproductive Rights Prof Blog).

Posted by Mike Dorf

13, 14 and 15 Versus 19?

No doubt much of the resentment of Hillary Clinton's initial campaign strategy of inevitability was sparked by a combination of a) the natural desire of voters not to be taken for granted; and b) the equally natural resentment that an air of entitlement provokes. And to the extent that Senator Clinton said and did things that suggested that she as an individual had a right to be the Democratic Party's nominee, these reactions are not only understandable, but justified. However, I believe that at least part of what Senator Clinton expresses is not exactly personal. She believes that it is her turn to be President because it is about time for a woman to be President. Or at least that's how her strongest supporters---including a great many blue collar women and older women---understand the pitch.

The fact that Clinton (and thus women) may be denied her (and their) turn by an African-American man complicates this narrative in a way that is interestingly familiar. The relation between the struggles for equal rights for African Americans and for women has long been one of cooperation and competition. Nineteenth Century feminists were active in the abolition movement in the and were thus bitterly disappointed when the Fourteenth Amendment, for the first time introduced and legitimated sex discrimination in the Constitution, even as it secured the civil rights of African Americans (although, of course, it would be a century before those rights would exist in any real form). Section 2 of the Fourteenth Amendment provides that a State that denies any of its "male inhabitants" over the age of 21 the right to vote in federal elections has its representation in Congress and the Electoral College proportionately reduced---a kind of inversion of the 3/5 Clause of the original Constitution.

Section 2 became a dead letter only two years later, with the adoption of the Fifteenth Amendment, but of course, that provision, in forbidding race discrimination but not sex discrimination in voting, simply underscored the sense of betrayal that women who had fought for the rights of African Americans felt. (To be more precise, I have in mind here the sense of betrayal felt by white women. African-American women were---and to a large extent remain---betwixt and between their racial and gender identities, although Sojourner Truth's 1851 "Ain't I a Woman" speech nicely shows that these identities need not be antithetical.) It took another half century for women to get the vote.

Likewise, in the Twentieth Century, when asked what the position of women in the Student Nonviolent Coordinating Committee (SNCC) should be, Stokely Carmichael reportedly said "prone." Which is not to say that there wasn't substantial overlap between the Civil Rights Movement of the 1960s and the Women's Rights Movement of the 1970s, or that there has been anything like a one-for-one tradeoff in rights for the two groups (remembering again, that roughly half of African Americans are women). In general and in these two particular cases, equality movements tend to catalyze one another. Thus, if an African-American man gets to the White House before a woman (of any race), that will only make it easier for a woman to become President in the future.

Posted by Mike Dorf

Abortion, Guns & Politics at the AALS

Here are a couple of thoughts from the two "hot topics" panels in which I participated at the AALS over the last couple of days:

1) On my reproductive rights panel, Yale Law Prof Jack Balkin made the claim that the Republican Party---which he distinguished from the social conservatives who are on part of the Republican coalition---has not, over the last generation, sought the reversal of Roe v. Wade, but has instead sought to chip away at the decision while leaving a core right protected. I objected that this has been the effect of some wobbly Supreme Court Justices, but that in fact during this period, the Party has sought to overturn Roe, even though I agreed with Jack's underlying premise that overruling Roe might well be bad for the Republican Party as an institution, because that would de-energize religious conservatives and energize liberals on the issue. Nonetheless, I said that but for the flukes of who controlled the Senate and the vagaries of judicial appointments, the Republicans would have succeeded in overturning Roe, even if this was not in the Republican Party's interest. Balkin then reiterated that he was distinguishing between the Republican Party and its interest groups (which seemed to me not to address my objection, as the Party only does what the balance of forces among its interest groups determines), and claimed that the failure to overturn Roe despite so many Republican appointments tells us about the Party's revealed preferences. To which I say, no way. President Huckabee, indeed even President Giuliani, would name a Justice who would be the fifth vote to overturn Roe. But I'm hoping we don't get to test this proposition.

2) On my Second Amendment panel today, there was some discussion about how a decision upholding or rejecting the individual right view would play politically. We all pretty much agreed that a victory for the District of Columbia could be costly to the Democratic Presidential nominee, because it would activate the strongly Republican leaning gun rights groups. I said that I also thought a victory for Heller (the plaintiff) would help the Republicans, especially if it were 5-4, simply by making the issue salient and by emphasizing how closely divided the Court is, because the gun rights folks care more about this issue than do the gun control folks. Harvard Law Prof Mark Tushnet (the moderator) and GW Law Prof Bob Cottrol (from the audience) thought that a victory for Heller would be good for Democratic politicians and gun control advocates, who could then claim credibly that the gun control measures they favor are not in fact the first step on a slippery slope to abolition. That's an intriguing idea but I'm not sure. It strikes me that the win-by-losing strategy is always risky and unpredictable.

Posted by Mike Dorf

What Victory in the Iowa Caucuses Means

What do the victories of Barack Obama and Mike Huckabee in their respective parties' Iowa caucuses mean for each man's likelihood of becoming President? Certainly not nothing, but not all that much either. Let's look at elections since 1976, when both parties started paying serious attention to Iowa. And let's omit consideration of elections in which an incumbent won re-election, because incumbents win the Iowa caucuses easily. (Even Jimmy Carter, the last incumbent to face a serious primary challenge, defeated Ted Kennedy by a nearly 2-1 margin in 1980). That leaves us with five data points: 1976, 1980, 1988, 1992, and 2000.

We find that the ultimate winner of the Presidency won his party's Iowa caucuses in a contested field in at most two of these five years: George W. Bush clearly won in 2000 and Jimmy Carter beat all of his opponents in 1976, although more people voted Uncommitted than for Carter. In each of the other three years, the ultimate winner lost the Iowa caucuses, in two cases badly: In 1988 George H. W. Bush came in third behind Bob Dole (okay, from neighboring Kansas) and Pat Robertson (Huckabee without gubernatorial experience?), and in 1992 Bill Clinton got just 3% of the vote (although the leading Dems basically took a powder in deference to favorite son Tom Harkin). So historically speaking, winning the Iowa caucuses is hardly a guarantee of ultimate success.

What do the particular results mean? On the Democratic side, we now have essentially a two-person race. Edwards, having spent nearly all of the last 4 years in Iowa, and out of money, gets no bounce from his tie for second with Clinton. Clinton had a slim lead over Obama in NH before the Iowa caucuses, and the Obama Iowa bounce, plus the ability of independents to vote in NH, means that race is probably a toss-up now (which isn't to say it couldn't break for one or the other in the coming days). All of this suggests that the Democratic nomination will likely be decided by actual voters in large states. Yes, they'll have only two choices but they're two serious choices. No more debates featuring Mike Gravel (though Dennis Kucinich is likely to stay to the bitter end).

Meanwhile, on the Republican side, all is chaos. Mike Huckabee is unlikely to appeal to New England Republicans, and with very little in the way of organization or money, it's hard to imagine him winning the nomination. Romney is the big loser, of course, and if he loses to McCain in New Hampshire, that will signal an almost categorical rejection. But McCain also is short on organization and money. This opens the door, in my humble and usually wrong opinion, for Rudy Giuliani's Florida strategy. So weirdly, I pick Giuliani as the big winner among the Republicans, despite garnering just 4% of the Iowa vote.

Posted by Mike Dorf

Kenya on Fire

Kenya, long thought to be a relative bright spot amid Africa's troubles, now threatens to follow the path of its neighbors. The U.S. press has mostly portrayed this story as a mix of electoral shenanigans and tribal rivalry, which it no doubt is, but it is something more, and familiar. As Yale Law Prof Amy Chua has written in her book World on Fire (and in scholarly articles to the same effect), throughout much of the world, and especially in the developing world, extreme violence occasionally flares against an ethnically distinct minority group that disproportionately holds economic and political power. Her examples include ethnic Chinese in Southeast Asia, Jews in Russia, whites in Zimbabwe, Tutsis in Rwanda, and Indians in East Africa and Fiji. As many of the critical reviews of Chua's work have noted, she arguably overstates her case, but there is no gainsaying that she has identified a real and dangerous phenomenon.

What the Kenyan example points out is that the dynamic of violence against economically and/or politically dominant minorities can erupt suddenly and out of what seemed like stability. We knew that already, of course. Serbs, Croats and Muslims got along well and frequently inter-married before they started killing each other; Hutu and Tutsi often couldn't tell one another apart, and there is doubt as to whether they even count as distinct ethnic groups.

The current events in Kenya---but one hopes not the coming events in Pakistan---press on us a view that was dominant outside the U.S. through the early Nineteenth Century but that talk of the end of history has displaced: Elections can be dangerous events, and democracy can be a mere way station on the road from one tyranny to another.

A little over a month ago I posted on the capacity of democracy to avoid succession crises. Kenya reminds us that democracy (or at least disputed elections) can also spur them.

Posted by Mike Dorf

Lawyers, lawyers everywhere, so how 'bout a billionaire?

In my latest FindLaw column, I examine how the frontrunning Presidential candidates who are lawyers (Clinton, Edwards, Guiliani, Obama, and Romney) spin their lawyerly experience to match the key themes of their campaign and to avoid activating negative stereotypes of lawyers. The answer---except for Romney, who has a law degree but was never really a lawyer---is to portray their legal careers as a form of public service. Meanwhile, Maureen Dowd observes today that not only are all 3 Democratic frontrunners lawyers; they're all married to lawyers (or in Dowd's characteristically catty phrase, "married to lawyers who talk too much.")

With so many lawyers in the field, surely there must be room for a billionaire non-lawyer, right? So goes the thinking of Mike Bloomberg and the sycophants who surround him, whispering that only he can rescue the nation from the partisan swamp. I'll be the first to concede that with the exception of his preposterous, and luckily failed, effort to bring the 2012 Olympics to New York City, Bloomberg has been a very good mayor. He has increased the professionalism of city services, continued to keep the lid on crime, and all the while reduced the temperature of ethnic and racial politics from the Giuliani era. I'll even concede for the sake of argument that this experience qualifies him to be President. But it hardly follows that it justifies his expenditure of a billion dollars to throw the race to the Republican nominee.

A surprising number of the commentariat across the political spectrum have been intoning that it is unclear whether Bloomberg's entry into the race will help the Democratic or the Republican nominee more. That's true only in the literal sense that one can never predict anything with 100% precision. But if you examine Bloomberg's views on domestic policy issues such as health care, environmental regulation, taxes, gun control, and just about everything else, they are almost indistinguishable from those of Clinton and Obama. And in everything but tone, Bloomberg is closer to Edwards than to any of the Republicans---with the possible exception of Huckabee on domestic policy issues that don't involve culture war questions, but of course, if Huckabee were the Republican nominee, the race would be all about culture war questions.

Bloomberg's foreign policy issues are thus far largely unknown. His not-yet-a-campaign website refers only to domestic policy issues, but he has been taking lessons from Nancy Soderburg and Henry Kissinger (gulp!). It's hard to know exactly what they've been telling him, but because Chuck Hagel---perhaps the single harshest Republican critic of the Iraq war---is frequently mentioned as a possible Bloomberg running mate, it's hard to imagine Bloomberg with a foreign policy closer to the Giuliani/McCain/Romney position of out-Bushing Bush than to the cautious disentanglment advocated by Clinton and Obama. So here too, the most likely effect of a Bloomberg campaign would be to siphen away otherwise-Democratic votes.

By my reckoning, the only way in which Bloomberg draws Republican votes is if Clinton is the nominee, because there is a core of American voters who would not vote for Clinton under any circumstances and might therefore vote for a Republican over her, but would instead vote for Bloomberg if he were in the race. Yet it's hard to believe that this effect would come close to the siphoning effect in the other direction, even if Clinton is the nominee: Many people who basically agree with her on the issues would hold their nose and vote for her if the choice were Clinton or a Republican, but will defect to Bloomberg if given the choice.

The buzz from Bloomberg's inner circle is that he'll only run if he has a chance to win, rather than act as a spoiler. But of course, even if he has a "chance" to win---and what counts as a chance? 50%? 20%? 5%?---he's still more likely simply to be a spoiler. Bloomberg is a smart enough guy to have figured all of this out, so either he's playing some weird game or he's so blinded by ego that he doesn't care. I'm hoping for weird game but very worried that he's deadly serious.

Posted by Mike Dorf

Dynasties and Democracy

This week, the Pakistan People's Party named Benazir Bhutto's son, Bilawal, as chairperson of the party, even though he is only 19, still in college, and will not be leaving school to become a full-time politico just yet. His father Asif Ali Zardari and two others will serve as regents in the interim. Certainly, young Bilawal has to be one of the world's first major political leaders to have an active Facebook page at the time he entered politics. It's hard not to understand and agree with Tariq Ali's response to the news:

The Pakistan People's Party is being treated as a family heirloom, a property to be disposed of at the will of its leader.

Nothing more, nothing less. Poor Pakistan. Poor People's Party supporters. Both deserve better than this disgusting, medieval charade.

* * *

That most of the PPP inner circle consists of spineless timeservers leading frustrated and melancholy lives is no excuse. All this could be transformed if inner-party democracy was implemented. There is a tiny layer of incorruptible and principled politicians inside the party, but they have been sidelined. [link]

In the immediate aftermath of losing the charismatic Benazir as its leader -- and on the eve of a national election -- I suppose it's not altogether surprising that the PPP's leadership would readily defer to the wishes expressed in her will by turning to a familiar name to serve at least as the symbolic leader of the party. (I'm not so sure he's a familiar face to most Pakistanis, especially since he's spent much of his short life abroad and out of the public eye. Indeed, as you can see from the photo above, his "Facebook" profile doesn't even have a "face.") And we don't need to single out Pakistan -- dynastic politics of one form or another are a way of life to varying extents in many countries, including such celebrated democracies as India and the United States. (One observer has even described dynastic politics as an "American tradition.")

Still, as Ali also noted last week, "[t]o be dependent on a person or a family may be necessary at certain times, but it is a structural weakness, not a strength for a political organisation." I suspect that it will take stronger and more durable electoral processes outside of the political parties, in Pakistan more generally, in order to catalyze greater internal democracy within the political parties. Would that be enough? Perhaps not. Indira Gandhi and her spawn retained a dominant role within the Congress Party even after being voted out of power in 1977, and of course the 2008 election here in the United States could end up replicating the "Benazir-Nawaz-Benazir-Nawaz" pattern of 1990s Pakistan with a crudely analogous (and longer-lasting) "Bush-Clinton-Bush-Clinton" pattern of our own. (Grover Norquist thinks we need a constitutional amendment to put a stop to all of this.)

But the importance of meaningful electoral processes cannot be dismissed altogether, since they do create spaces where other political leaders can emerge. Free and fair elections also would give the public as a whole something they did not really have in Pakistan even during the 1990s: an opportunity to hold parties accountable for their internal decision-making by voting their leadership out of political office, no matter what families those leaders come from. After all, contrary to speculation from as recently as the summer of 2006, we are not going to see Jeb Bush's name on the primary ballots this spring, and were he a candidate, I can't imagine that he would have carried the Bush dynasty to a resounding victory.

Posted by Anil Kalhan