Should Rapists of Children Be Executed?

I have a column posted today on FindLaw's Writ discussing the oral argument in Kennedy v. Louisiana, a case that poses the question whether executing rapists of children violates the Eighth Amendment ban on cruel and unusual punishments. In my column, I focus on some of the revealing questions posed by the Justices in their attempts to determine the stare decisis significance of an earlier case, Coker v. Georgia , in which the Supreme Court struck down the death penalty for the rape of adult women. Here, I wish to focus on a different aspect of the case that came up in oral argument: the Eighth Amendment principle that prohibits the granting of excessive discretion to a sentencing body determining whether to impose capital punishment on a particular defendant.

In Furman v. Georgia, a case that had the effect of declaring all existing death penalty laws unconstitutional, the Supreme Court said that a judge or jury in charge of capital sentencing must be given more guidance than simply: here is a person convicted of murder; you decide whether to sentence him to imprisonment or death. Giving the sentencer so much discretion, held the Court, creates a circumstance in which the receipt of the death penalty is like a "lightning strike," utterly unpredictable and without a rationally coherent account. The classification of existing capital sentencing as arbitrary in this way stemmed, in part, from the fact that most people convicted of murder and eligible for a death sentence were actually sentenced to a term of imprisonment. Those unlucky few who did receive the death penalty, moreover, were not distinct in the heinousness of their crimes. Judges and juries were therefore using arbitrary factors to decide which murderers should live and which should die. A legitimate sentencing scheme would constrain such discretion and guide judges and juries in what sorts of facts to take into account in making the decision. Following the ruling in Furman, states rewrote their capital sentencing laws and, in Gregg v. Georgia, the Supreme Court upheld capital sentencing that provided jurors with aggravating factors that -- if found -- would distinguish the pool of killers who would, by contrast to the others, be death-eligible.

The reason this "narrowing" principle (requiring that the law narrow the class of death-eligible defendants) is important in Kennedy v. Louisiana is that in those states that provide for the potential execution of rapists of children, almost no convict is actually sentenced to die. It is also true that in those very same states, many more people are convicted of raping children than are convicted of murder. Therefore, the petitioner's attorney ably argued, it follows necessarily from Furman that a statute permitting the execution of anyone who rapes a child grants excessive discretion to jurors to decide which rapists are to live and which are to die. The attorney for Patrick Kennedy suggested, further, that the only factor that currently permits prediction of which child-rapists will find themselves on death row is the failure to plead guilty; that is, the assertion of one's right to trial is the only discernible "aggravating factor" that distinguishes between the the death-eligible rapists of children and all the rest. This argument strikes me as persuasive, particularly because Louisiana (unlike other states that classify child-rape as a capital offense) does not offer any aggravating factors to narrow the class of death-eligible defendants. The degree of discretion is accordingly even greater than that which was invalidated in Furman v. Georgia.

Notwithstanding its apparent persuasive force, however, the only Justice that appeared to engage in very much questioning on this matter was Justice Scalia, who has been very candid about his view that the "narrowing" jurisprudence is utterly wrong and that the Eighth Amendment contains no such a requirement of limiting the sentencer's discretion. He pressed the attorney defending the Louisiana statute on this question, apparently to provide Justice Scalia with ammunition against those on the Court who are not prepared to overrule Furman and its progeny. The attorney's response was to note that the requirement that the jury find that the victim was a child under a particular age narrows the category of crimes sufficiently to satisfy Furman. (In response to this claim, Justice Souter wondered whether it is fair to consider an element of the predicate offense an aggravating factor for purposes of Furman. My thinking is that there is no more than a semantic distinction between a law prohibiting all rape and then classifying victim's age as an aggravating factor, on the one hand, and a law prohibiting rape of children and permitting execution of convicts, on the other. Either the category of death-eligible people is sufficiently narrow to pass muster or it isn't). I suspect that the attorney's answer was inadequate, given that one could as readily characterize murders as cases of armed assault resulting in death with a particularly heinous mental state. If this category is in need of narrowing, then so is the category of rapists of children.

Interestingly, given Mike's recent posts of facial versus as-applied challenges, Justice Kennedy suggested at one point that because Patrick Kennedy, the particular defendant falls into a narrow class of especially serious rapes (he raped an eight-year-old child who was also his own stepdaughter and the rape resulted in extensive vaginal and anal tearing requiring surgery), he was in no position to complain that Louisiana permits the sentencer too much discretion: in his case, there were aggravating facts aplenty. This is, of course, another way of saying that one should not be able to complain about an unconstitutional law unless a properly crafted law would have spared the petitioner the negative outcome in question, here a death sentence. Patrick Kennedy's attorney responded persuasively that the flaw of a statute conveying unbridled discretion to the sentencer may be raised by anyone sentenced to die under that statute. Though a jury might have sentenced Kennedy to die even if instructed under a properly designed law, Kennedy had a right to be judged under such a valid law. This strikes me as correct, in the same way as one could not suggest that an instruction to the jury to find guilt by a preponderance of the evidence would be okay, as applied, in the case of a convict against whom the actual evidence presented was overwhelming.

My prediction is that, assuming the Justices are not prepared to overrule Furman v. Greg, they are likely to hold that the Louisiana statute provides an unconstitutionally broad grant of discretion to the sentencer to determine whether or not a particular defendant should be executed or simply imprisoned. If I am right, then much of the discussion during oral argument in Kennedy tells us more about future cases than about the holding in Kennedy.

Ask for half a loaf?

This is a follow-up to my post yesterday on facial versus as-applied challenges in the Supreme Court. (I told you I was obsessed with this subject.) I have a hypothesis about the apparent extremity of the Court’s doctrine in this area---which makes it nearly impossible for a plaintiff to bring a successful facial challenge, except under the relatively narrow First Amendment overbreadth doctrine: I suspect that the (conservative and perhaps all of the) Justices view facial challenges as a backhanded effort by liberal advocacy groups to get more than they’re entitled to.

Consider that the facial challenge issue frequently arises in death penalty cases and abortion cases. In each context, the (conservative) Justices may reason more or less as follows: These lawyers are categorically opposed to the challenged law. They don’t think the government should be [executing people/regulating this kind of abortion] at all, but they’ve chosen to point to one small alleged defect in the law or one potential defective application of the law as a basis for invalidating the whole thing. They’re asking for more than they’re entitled to, so we’re not going to give them anything.

Is this an ACCURATE account of the strategy of liberal legal advocacy groups? Sometimes, although such groups are hardly monolithic and in order to get into court must represent real clients, who often do care about the actual defective provision or application of the law identified in the complaint. Moreover, the decision to bring a facial rather than (or in addition to) an as-applied challenge often has as much to do with timing as with the relief sought: Advocacy groups bringing a pre-enforcement challenge may have difficulty finding a plaintiff with standing who can point to an imminent concrete application that will violate her rights, but no difficulty finding someone---a doctor who performs abortions, say---who can point to the chilling effect of the law.

Still, if I’m right that the Justices look askance at such cases because they see them as an effort by liberal advocacy groups to leverage small defects into big wins, then those groups would do well to change tactics by framing future cases strictly in as-applied terms, and by seeking narrower relief. For example, a doctor challenging an abortion law on the ground that it is sometimes unduly burdensome under the Court’s precedents could seek to have the law enjoined in just the circumstances that it is unduly burdensome.

This strategy of asking for half a loaf in the hope of getting half a loaf may not succeed either, but it’s hard to see how it could do worse than the current strategy of asking for a whole loaf and getting nothing.

Posted by Mike Dorf

The Roberts Court on Facial Challenges

Readers of my academic work (all 7 of them) know that I have long been interested (obsessed?) with the question of the circumstances under which a court may hold a law invalid "on its face" rather than or in addition to "as applied" to particular facts. For years, the Supreme Court and lower courts have struggled with this somewhat arcane question, a struggle that has been exacerbated by the fact that it often arises as a threshold issue preliminary to the court's reaching some highly controversial substantive issue involving abortion, the death penalty, flag burning, and the other hot-button matters on which the courts are called to opine. As a result, judges and Justices with strong views on the merits (whether liberal, conservative or other) are tempted to manipulate the facial/as-applied question as a way of helping the case come out the way they want on the merits.

The Roberts Court in the last year has been ESPECIALLY attentive to the facial/as-applied dichotomy, as the recent decisions in Baze (the lethal injection case) and Crawford (the Indiana voter ID case) illustrate. In both cases, the lead opinion makes the same basic move: It rejects a facial challenge to a law or practice on the ground that insufficient evidence has been adduced to warrant complete invalidation but leaves open the possibility that another plaintiff in another case, with different evidence, might be entitled to more narrowly crafted relief. (The Court made the same move in last year's Partial Birth Abortion Ban Act decision, Gonzales v. Carhart.) This move is valid in principle but in practice has dramatic consequences.

Because of their position in the judicial hierarchy, lower federal court judges (with the possible exception of my one-time boss, 9th Circuit Judge Stephen Reinhardt, aka the Chief Justice of the Warren Court in Exile) tend to read Supreme Court tea leaves when deciding cases. Thus, imagine a federal district judge faced with a challenge to lethal injection in a state other than Kentucky or a challenge to a voter ID law in a state other than Indiana. Even though said district judge---and the appeals court panel that will review her decision---has, as a technical matter, been given the room by the Supreme Court to say that based on this new record the challenged law or practice is unconstitutional, reading the sub-text of the Court's opinion in Baze or Crawford the lower court judge is much more likely to play it safe and say, in effect: This record is not so different from the one on which the Supreme Court upheld this or a similar law or practice, so I'm going to uphold the law or practice challenged in my court.

To be sure, that leaves open the possibility that the Supreme Court itself will then find a distinction and permit the invalidation of a law or practice as applied that is similar or identical to one it has previously found valid against a facial attack, but the Court decides so few cases per year that it is unlikely to revisit an issue in this way for many years. (There are a couple of recent exceptions to this principle but it holds generally.) In the context of something like voter registration restrictions---where the relevant time horizon is between now and the November election---this means that an opinion that technically only says "based on this record, this law is not so flawed as to be utterly unenforceable" comes to mean in practice something more like "laws like this are valid in all their applications until we say otherwise."

Posted by Mike Dorf

Voter Qualifications, Judicial Scrutiny & Abortion

Today, in Crawford v. Marion County Election Board, the Supreme Court applied a relaxed standard of judicial scrutiny to Indiana's law requiring voters to show a government-issued form of identification. The plurality opinion of Justice Stevens (joined by CJ Roberts and Justice Kennedy) found the state's interests in modernizing its election system, preventing fraud, and inspiring confidence in the state's electoral machinery to be sufficient to defeat the plaintiffs' challenge to the law---even though the opinion acknowledged that the record contained "no evidence of" "in-person voter impersonation at polling places" "actually occurring in Indiana at any time in its history." Because the plaintiffs had not produced concrete numbers of otherwise-eligible Indianans who would be unable to vote as a result of the law, Justice Stevens said that the facial attack on the law must fail.

The political sub-text of the case was obvious. Indeed, it wasn't even sub-text. Justice Stevens acknowledged that in the Indiana legislature, Republicans unanimously voted for the law and Democrats unanimously opposed it. The same dynamic is at work around the country and especially in Florida, as reported today in the NY Times. It doesn't take any sophistication at all to recognize that Republicans favor (and Democrats oppose) imposing additional requirements for voting because people who will be screened out by these requirements are disproportionately members of constituencies that tend to vote Democratic. Of course Justice Stevens is right that, in theory, the government has solid reasons to want to modernize the electoral apparatus, limit opportunities for fraud, and inspire voter confidence. But in the face of the obvious fact that these laudable aims are being used for partisan advantage, shouldn't the burden be on the government to establish that they address actual problems in the real world?

That logic was the premise for the Supreme Court's application of "strict scrutiny" to pre-viability abortion regulations during the period between 1973 and 1992, when a plurality of the Court (since expanded to a majority) displaced this standard with a somewhat more forgiving test that looks more favorably on state abortion restrictions that seek to "inform" women's choices. The problem that Justice Blackmun foresaw in 1973 was that people who vigorously oppose abortion would use any legal means---such as 24-hour waiting periods---to frustrate the exercise of the right, so that strict scrutiny (or something like it) was needed to prevent pretextual regulation.

And likewise for voting. Indeed, the difference between the abortion and voting cases is that many people continue to think that the Court erred in recognizing a constitutional right to abortion, while almost nobody thinks the Court erred when, in the 1960s, it recognized a right to vote. (Some Democrats, including yours truly, grumbled about the Court's interpretation of this right in Bush v. Gore, but we didn't deny that it's important for the Court to protect the right to vote itself.) The Court's decision in Crawford will only invite more cynical efforts to "protect" the electoral process against wholly theoretical threats while effectively disenfranchising actual voters. In theory, Justice Stevens leaves open the possibility of more targeted relief based on more developed factual records, but don't bet on this happening in time for the November election.

Posted by Mike Dorf

Outrages Upon Personal Dignity

As first reported yesterday by the NY Times and then widely thereafter, in March the Justice Dep't sent letters to Congress explaining why, in its view, the CIA could engage in so-called enhanced interrogation techniques without running afoul of international and domestic law. Whether a particular method of interrogation amounts to an "outrage[] upon personal dignity" or "humiliating and degrading treatment" in violation of Common Article 3 of the Geneva Conventions regarding treatment of detainees, DOJ said, depends in part on the purpose for which the interrogation is undertaken. According to Deputy Ass't AG Brian A. Benczkowski's letter: "The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.”

There is undoubtedly a certain logic to this line of reasoning. For example, if we were not interested in legal obligations as such, we could agree that it's outrageous, and thus an "outrage upon personal dignity," for a police detective to falsely tell a completely innocent person that a loved one has implicated him in a crime, while such trickery would be permissible (or at least not outrageous) when targeted at a person who the police have good reason to believe is guilty.

But there are two reasons why this logic is just about completely inapposite in the real context of interrogation of war-on-terror detainees. First, the sorts of interrogation techniques in question go well beyond trickery into the realm of physical coercion. Second, this sort of utilitarian sliding scale calculus is pretty clearly ruled out by the plain language of Common Article 3. In pertinent part, it provides

[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [detainees]:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

The Justice Dep't reading of this language requires us to assume that it was meant to ban certain acts "at any time and in any place whatsoever," but that the definition of the forbidden acts depends on the purpose for which the acts are undertaken. This reading renders the "at any time and in any place whatsoever" language almost wholly ineffective. Accordingly, the much much more natural reading of Common Article 3 is as an absolute prohibition on a category of acts---including both "torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment." There may be some disagreement at the margins over what acts count as covered, but if an act is covered, then it is categorically banned, regardless of the state's alleged justification for engaging in it.

All of this leads to the following question: Where are the textualist critics of the Administration? Even if one thinks on utilitarian grounds that "enhanced" interrogation or even torture is morally justified in certain circumstances, the categorical nature of the legal prohibition is nearly impossible to deny, given the relevant text. Except, of course, that here, as elsewhere, the Bush Justice Department appears capable of the impossible.

Posted by Mike Dorf

Dorf on Amar & Brownstein on Dorf on Summum

Over on FindLaw, Professors Vik Amar and Alan Brownstein have a take on the Summum case that differs from my take (as expressed in my own FindLaw column on the topic a couple of weeks ago) in two key essentials. First, Amar and Brownstein say that government property can be a public forum---and thus the First Amendment can bar the government from discriminating based on the content of private speech in that forum---even though the private speech takes the form of permanent rather than temporary private statements. Second, they say that when the government opens up public property to the display of a wide variety of messages, some of which are inconsistent with one another, it cannot plausibly claim that this amounts to "government speech" to which the strictures of the First Amendment do not apply.

Both points are valid, but it's not clear to me that they are especially relevant to the actual Summum case. Let's begin with the permanence question. Amar and Brownstein provide a hypothetical example based on a minor variation of some real cases in which public parks permit community members to inscribe tiles or bricks with messages as part of a permanent display. Amar and Brownstein contend that by opening up this property to various private messages, the government creates a public forum for speech, in which it cannot pick and choose among messages, notwithstanding the permanence of the display.

That's fair enough, and what the example shows, I think, is that both the dissenting judges in the Summum en banc decision and I (in my column) were using permanence as a proxy for something else: effective scarcity. A park has only a limited amount of space for large freestanding permanent monuments of the sort at issue in the Summum case. Allowing the placement of one or even a half dozen such monuments does not obligate the park to chop down trees to make room for monuments covering the park. By contrast, the government can almost certainly accommodate just about all of the messages that members of the community want to display on small bricks or tiles.

What about the second distinction that Amar and Brownstein draw between their view and mine? I think they are clearly right that the government cannot reasonably be understood to be saying that it agrees with all of the messages---even those that appear to contradict each other, such as "New York Loves the Yankees Best of All" and "The Mets are The Big Apple's Number One Team." But this does not mean that the government has no speech interest in avoiding inclusion of messages that it does not want to be seen to convey or endorse, like "Yankees Suck! Red Sox Rules," or, more seriously, "White People Are the Master Race."

So, the question then becomes: Under what circumstances does the government interest in avoiding the appearance of endorsing distasteful views suffice as a basis for content-based restrictions? The Court held in FAIR v. Rumsfeld that a disclaimer can be sufficient to vindicate a private actor's free speech interest in disassociating itself from a distasteful message that government regulation pressures it to convey. If a disclaimer suffices for private parties, shouldn't it suffice for the government?

Perhaps, but I think that to say that assumes the answer to the forum question. Suppose a city wants to devote space in the park to permanent displays by civic organizations that contribute to tolerance and mutual understanding of people of different backgrounds and cultures. Requiring the city to include a Klan monument to white supremacy would completely undermine the city's goal, even with a disclaimer, because it would necessarily change the character of the forum as a whole.

I do not read Amar and Brownstein necessarily to disagree. Indeed, Professor Brownstein was kind enough to share with me a portion of a draft of a paper he is writing on the question when government may legitimately engage in content-discrimination to avoid placing its imprimatur on distasteful speech---and his analysis suggests that the answer is "sometimes," not "never." (The paper, not yet available online, is for a forthcoming symposium issue of the UC-Davis Law Review on the First Amendment in schools.) So, at the end of the day, Amar and Brownstein don't differ that much, if at all, from me. I read their column to be saying something like this: "Dorf may be right about the Summum case, given its facts, but claims about permanence and government speech don't apply with the same force in other contexts."

I can happily accept that. And I can also accept their conclusion (because it was also my conclusion) that there are, or at least should have been, difficult Establishment Clause issues presented by the Summum case.

Posted by Mike Dorf

Opposing In Vitro Meat for the Sake of the Animals

On Wednesday the New York Times ran an editorial called "Million Dollar Meat," in which it suggested that if PETA prevailed in its efforts (about which I blogged here) to end the raising and slaughter of animals for meat, this would represent a bad result for the animals as well as for the "cultural and historical bond between humans and domesticated animals." Referring to those who disagree with this position as "radical animal-rights activists," the editorial characterized the contrary view as follows: "better for animals not to exist at all if there is a chance that they would suffer." "It will be a barren world," the Times editors lamented, "if the herds and flocks disappear in favor of meat grown in a laboratory tank."

The position of the Editorial is faulty in a number of respects, of which I shall select two for elaboration, one having to do with the reality of modern "farming" and the other with the theoretical assumptions that underlie its claims.

As a practical matter, though the editors claim to be "disgusted by the [inhumane] conventional meat industry in this country," it is in fact that very industry that raises and slaughters the overwhelming majority of the billions of land animals who die every year in this country to satisfy people's appetite for flesh. PETA is accordingly not the one driving out the "herds and flocks" or failing to "treasure the cultural and historical bond between humans and domesticated animals" that so enriches our lives, according to the Times editors. It is the real-life meat industry (along with the consumers of meat who directly fund that industry) that does that. The editors seem to harbor an idyllic vision of what farming is or might soon be, a vision that may come from songs like "Old MacDonald had a farm" rather than the real world.

To make the question more difficult, however, let us assume reality away. Assume that the concentrated animal feeding operations that currently mass-produce the meat available at the supermarket could be successfully terminated in favor of the sort of farm that treats the animals with, as the editors want, the "least possible cruelty." Is it then better to live as an animal on such a farm than never to have been born at all? Consider, in answering this question, that most animals on a farm will be killed in the prime of their lives (for that is when they are most suitable for being eaten), separated from their young (for that is how people will be able to dine on lamb -- baby sheep -- and veal -- baby cows), and then killed in a manner that is intended to preserve their meat rather than minimize their pain (by contrast, for example, to euthanasia). Remember too that even the relatively small number of animals who currently live part of their lives in relatively benign conditions end up in a stockyard where the smell of death is palpable and where the eyes and screams of the animals tell us everything we need to know about the "chance that they would suffer."

The ultimate problem with the Times editors' position is that it accepts an argument with respect to animals that it would never accept with respect to human beings, no matter how compromised: that being born to be a mere "thing" for others to use and consume is necessarily better than not being born at all. Imagine for a moment a world in which the state used technology to produce severely compromised human children with the objective of farming these children for organs to service those requiring transplants among the rest of the population. Assume that the babies and children were treated relatively humanely until the need for their organs arose but that the priority would remain the organs, whenever a contest might arise between the wellbeing of the children and the viability of their organs for future transplant. The idea of such a system should rightly horrify readers, even if the babies and children involved would never have been created in the first place in the absence of the organ farming program. Better -- without a doubt -- for them never to have been born (or, if one is pro-life, to have never been conceived) than to have been born into that. We would, moreover, be horrified even though organ farming could save human lives, a far worthier end than satisfying the appetite for flesh in a world with so many healthful and delicious alternatives. (For a fictional account of the horrors of such a system even if rendered as humane as possible, consider Kazuo Ishiguro's novel, Never Let Me Go.)

So, why are we horrified? Is it simply because such babies and children are made up of human DNA? If so, that represents pure "species-ism", as arbitrary and baseless as decisions made purely on the basis of sex or race. If not, then mightn't it be because such babies and children, even though not as mentally able as other people, have experiences of being alive, including of pain and of pleasure, and thus deserve to be treated as valuable in and of themselves rather than as instruments for other people's use? And doesn't a cow or a sheep deserve as much?

Posted by Sherry Colb

Driving on a Suspended Fourth Amendment

Yesterday, in Virginia v. Moore , the U.S. Supreme Court held that the Fourth Amendment does not prohibit police from arresting a person on the basis of probable cause to believe that he has committed a no-arrest misdemeanor under state law. In an opinion by Justice Scalia, the Court said that (1) materials from the founding era do not support the view that the Fourth Amendment was intended to incorporate statutes, and (2) balancing intrusiveness against need (the appropriate test in the absence of evidence of the original understanding), arrest on the basis of probable cause for any crime, however minor, is reasonable, and there is no reason to change the calculus because a state chooses to protect more privacy than the Fourth Amendment, a change that would be hard to administer, in practice.

The crime at issue in Moore was driving on a suspended license. The police in the case had probable cause to believe that Moore was committing this crime. Under Virginia law, however, the police were not authorized to arrest a person for this particular misdemeanor. They were required to issue a citation. Had they issued a citation, then the search incident to arrest that they performed (and that led them to find crack cocaine, for the possession of which Moore was subsequently prosecuted and convicted) would have violated the Fourth Amendment under Knowles v. Iowa, because there is no permissible "search incident to citation." Because the police illegally arrested Moore (instead of complying with state law by issuing a citation), however, their subsequent search was incident to an arrest and hence did not violate the Fourth Amendment. This points to the somewhat ironic result in Virginia v. Moore through which police who wish to search a person committing a traffic offense in the absence of probable cause to justify a search (and in the absence of state authorization to arrest the suspect) can ensure compliance with the Fourth Amendment only by unlawfully arresting the suspect.

In addition to what one might call a perverse incentive, however, the result in the case is misguided for another reason: it elevates form over substance. It does so by treating "probable cause" as a free-floating concept. Police, on this understanding, had "probable cause" to believe that Moore was committing a crime, namely, driving with a suspended license. By refusing to permit an arrest for this particular crime, however, the state legislature of Virginia had indicated its will regarding the criminal status of driving on a suspended license -- that is serious enough to merit a citation but insufficiently serious to warrant an arrest. It could have instead classified driving on a suspended license as a civil rather than a criminal offense. Had it done so, it presumably would have been unconstitutional for the police to arrest Moore for such an infraction, even though police would necessarily have had "probable cause" to believe that Moore had indeed driven on a suspended license. Similarly, though police might have probable cause to believe that you breached a contract with your plumber or that you discriminated on the basis of sex against one of your employees, the police nonetheless would not be allowed (as a matter of either state law or the Fourth Amendment) to arrest you on the basis of that probable cause.

The fact that the Court dwells on form in the construction of the phrase "probable cause" might seem to have few untoward consequences. After all, if Virginia wishes to classify driving on a suspended license as a civil violation or a tort, it can do so and accomplish the same result that it had perhaps hoped to accomplish by prohibiting arrest in the first place. The problem, however, is that this means that states have less flexibility in drawing lines between civil offenses and crimes. They cannot create hybrids anymore, at least if they want the U.S. Supreme Court to respect such hybrids, which Virginia was perhaps trying to do by designating a misdemeanor that would not provide grounds for an arrest. The Virginia Supreme Court may, of course, find that its own Constitution prohibits arrests (and provides for the exclusion of evidence found during searches incident to such arrests) for "citation-only" offenses. But this is simply another way of saying that if state legislators wish to create hybrid offenses, the U.S. Constitution will ignore their wishes.

Posted by Sherry Colb

Spies and Allies

The arrest of Ben-ami Kadish on charges of divulging nuclear and other military secrets to Israel during roughly the same period when Jonathan Pollard was doing the same will, no doubt, lead to a revival of the claim that spying for an ally is not a serious offense. Here I'll simply say for the record that this is a wildly implausible notion.

We can grant that spying for an ally is not as bad as spying for an avowed enemy. Unlike the enemy, the ally can generally be expected not to use the stolen information to the direct detriment of the victim country, because the interests of the victim country and the ally generally overlap. But the key word here is "generally." The interests of the United States and Israel (or any ally) are not identical, which is why, even though we share some intelligence with Israel and other allies, we don't share all of our intelligence, which in turn is why Israel needed Pollard and (apparently) Kadish to get these particular secrets.

Let's be concrete. Israel in the 1980s faced, and continues to this day to face, existential threats from some of its neighbors. Under these circumstances, it may well be a sensible policy to obtain as much weaponry as possible, both for actual use and for deterrence. The cost-benefit calculus for Israel in deterring and neutralizing attacks may justify taking the risk of an escalating Middle Eastern arms race and the risk that Israel's enemies (and their supporters, which during the relevant period included the Soviet Union) will learn about the vulnerabilities of U.S. weaponry. (U.S. military brass opposed to Pollard's release also point to the fact that secrets he stole made their way to China.) For the U.S., even if we consider the survival of Israel an extremely important foreign policy priority, the risk analysis can come out differently. To repeat the obvious, that's why the U.S. doesn't simply share all of its weapons secrets with Israel and other allies.

There is also, of course, the possibility that today's ally will be tomorrow's enemy. Think of the Soviet Union during WWII. To be sure, this example is not an exact analogy. The WWII alliance with the Soviet Union was never a close working relationship, given that it was born of a lesser-of-two-evils calculation, while the U.S. and Israel have enjoyed friendly relations (if not always identical policy objectives) since the latter's establishment 60 years ago. Nonetheless, if we allow a defense of "I was spying for an ally," we can well imagine that all spies will make their own rationalizations about how trustworthy particular allies are.

Posted by Mike Dorf

Shields for Bloggers?

Yesterday's NY Times contained an editorial urging the Senate to take action on a bill---already passed by the House---that would, for the first time, grant federal protection to journalists to protect their sources. As the Times notes, the House version of the bill already permits the shield to be pierced for a criminal investigation or prosecution, where other means of obtaining the information have been exhausted (and in some other circumstances), and that the Senate version might be still more permeable.

Not surprisingly, the Times editorial does not identify what may be a substantial omission from the bill, because it is an omission that does not work against the Times. The bill would only provide protection for people who earn their living as journalists. Here's the definition of a "covered person" from the House bill:

a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person. [Boldface added by MCD].

Does that include, say, me? I think so, but only because I get paid for my columns on FindLaw's Writ. I "regularly . . . write" about legal issues "for substantial financial gain," and so I'm covered, and presumably that coverage protects me even if the piece I happen to be writing is not "for substantial financial gain," i.e., a blog entry or a law review article for which I'm not paid. So, if this bill becomes law, I can offer confidentiality to a source for a blog entry, but only so long as I'm still writing my FindLaw column.

That's a fairly peculiar rule, although it's not hard to see why the House came up with it. With millions of bloggers out there, some filter is needed to prevent anybody and her uncle from claiming to be a journalist (or "covered person") who is given the extraordinary power to shield sources (at least presumptively) from the prying eyes of the law.

Whether "financial gain" is the right filter is debatable. Do we really want a rule that gives bloggers protection if their blogs have advertising (and enough readers to generate "substantial" revenue) but not if they're simply pro bono? I strongly suspect that "financial gain" is functioning here as a proxy for something like "takes the position seriously." It's a very imperfect proxy but it has the virtue of administrability. Rather than cross-examine a blogger claiming the shield about her intentions, courts applying the shield law could just look at her receipts.

Still, it's at least a little ironic that at just the moment when the institutional/professional press is losing its hold on the generation and dissemination of information, Congress may enact a law that, for the first time at the federal level, distinguishes between the professional press and citizen journalists. Or perhaps the timing is not coincidental at all?

Posted by Mike Dorf

Meat Without Suffering

P.E.T.A. (People for the Ethical Treatment of Animals) has reportedly announced that it will award a million-dollars to anyone who can design a commercially viable method for producing meat from a test-tube by the year 2012. "In-vitro meat production would use animal stem cells that would be placed in a medium to grow and reproduce. The result would mimic flesh and could be cooked and eaten." The New York Times reported on Monday that offering this prize was very controversial within PETA, with one member expressing the view that "as the largest animal rights organization in the world, it's our job to introduce the philosophy and hammer it home that animals are not ours to eat." In this blog post, I want to take up the question of whether the production of "in vitro meat" is objectionable from the point of view of animal rights.

Let me offer an argument that I view as a variation on the position expressed above by the PETA member who viewed PETA's prize as controversial. The goal of the animal rights community (as opposed, for example, to the animal welfare community) is to eliminate the use of animals as resources to be mined (for their milk, eggs, wool, etc.) and killed (for their flesh), all of which use involves tremendous suffering. One way to express opposition to the use of animals is to become a vegan and thus to reduce the aggregate demand for animal use by refusing to subsidize it. By irritating grocers and waiters at restaurants -- not to mention fellow diners -- the vegan serves also as a gadfly, thereby spreading the message that eating meat directly contributes to unfathomable and unjustifiable suffering. If a vegan were to begin to consume in vitro meat (which might be physiologically indistinguishable from "in vivo" meat), then her food choices might become immediately less apparent to those around her. She could order a cheeseburger at a restaurant that stocks in vitro meat, without guilt but also without signaling to her dinner companions that she believes that eating meat represents a morally reprehensible act. Furthermore, she herself might come to view meat as acceptable, having eaten its physiologically identical analogue, so that when a restaurant does not stock in vitro meat, she might feel disinhibited from ordering it.

This latter concern is one that comes up for people I know who say that they eat only organically raised animals and organic milk and cheese. They believe, inaccurately as it turns out, that organic farming gives animals a good life until the moment that they are slaughtered. I regularly see such people order meat dishes in restaurants that do not insist on organic meat, however. In other words, once you allow yourself to eat organic meat, you are likely to eat factory-farmed meat when the organic alternative is not available. Compromise yields more compromise.

I wonder, however, whether a vegan eater of in vitro meat might feel that she has not compromised at all. If no animal lived or suffered or died to produce the burger, then how different is that burger from a flame-grilled soy patty? And if one takes this view, then the line between eating meat that came from a real animal and meat that came from a non-sentient stem cell might remain firm in one's mind. In other words, one must accept the premise that in vitro meat represents a compromise to conclude that such a compromise risks further compromise.

One might respond, of course, that the consumption of any meat imitation -- whether a soy burger or a test-tube-grown beef burger -- supports the false view that the sensation of eating meat is somehow essential to life. I am persuaded, however, that the key to reducing and ultimately ending the injustice of meat production is all about reducing demand, and if in vitro meat succeeds in reducing demand (by providing a truly humane alternative), then the willingness to accept the premises of the animal rights movement will follow. I believe, then, that people rationalize the horrendous practices of meat production because they want to eat meat, milk, etc. (and therefore resist appeals to conscience that would prevent them from doing so). Once they can eat meat without anyone being harmed or slaughtered, they will be free to see animal mining as the injustice that it is.

Posted by Sherry F. Colb

Give Me Dignity or Give Me Death

In a blog post last week on the Supreme Court decision in the lethal injection case, Baze v. Rees, I drew a parallel between the Court's approach to medical evidence there and its approach in last year's Partial Birth Abortion Ban Act decision in Gonzales v. Carhart. Both rulings, I said, showed a willingness to defer to legislatures on medical judgments, even where serious doubts are raised that the legislative judgment rests on medical grounds. In my latest FindLaw column I draw another parallel between Baze and Carhart. Both cases, I note, permit interests in "dignity" to prevail over more tangible interests---avoidance of excruciating pain in one case, avoidance of health risks in the other.

Here I'll note an irony on which I don't dwell in the column. It seems that dignity only counts as a constitutionally significant interest in the Supreme Court's jurisprudence when offered as a ground for opposing a rights claim. For example, in Cruzan v. Director, Missouri Dep't of Health, the Justices rejected the claim that Missouri's requirement of clear and convincing evidence of a patient's desire to be taken off life support in order for such support actually to be terminated, violated the patient's fundamental right. Although a concurrence by Justice O'Connor and the dissent emphasized that the patient's interest was an interest in a death with dignity by the patient's own lights, the lead opinion omitted all discussion of a dignified death. The closest that Chief Justice Rehnquist's opinion came to recognizing the nature of the patient's dignitary interests was in rejecting them: "we think a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy," the late Chief Justice wrote, "and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual."

It is tempting to conclude that "dignity" is simply a weasel word used by the Court when convenient to cover the lack of real interests at stake. But I would resist that temptation. Whether or not one agrees about the conclusion in any particular case, we certainly know what someone means when she says that some way of living or dying lacks dignity. The problem, in other words, is not that "dignity" is an empty vessel but that the Court has been using the concept selectively to further particular substantive conceptions of justice without forthrightly acknowledging as much.

So, should we take dignity seriously? Yale Law Professor Reva Siegel thinks so. She has a new article forthcoming in the Yale Law Journal that tries to reconcile the dignity talk in Gonzales v. Carhart with dignity talk going in the other direction in Planned Parenthood v. Casey, where the joint opinion describes the constitutional right to decisions regarding family formation as "choices central to personal dignity and autonomy." (Siegel's draft does not appear to be available online, although a piece of the argument overlaps with another of her articles, forthcoming in the Duke Law Journal.) As an exercise in doctrinal synthesis and exegesis, Siegel's project strikes me as important. Whether it proves to be a descriptively accurate account of where the Court goes with "dignity" remains to be seen (and Siegel herself does not claim to be offering her synthesis as a prediction of future decisions).

Posted by Mike Dorf

Refutation by Association

According to this story on the Huffington Post, a McCain fundraising letter quotes a Hamas leader as hoping for an Obama victory. Even though Senator Obama has condemned Hamas (a point omitted from the fundraising letter), the implication is clear: If a terrorist organization is hoping for an Obama victory, then America-loving Americans should try to defeat him.

This view is not entirely misguided. If an organization whose goals and tactics I find deplorable supports a candidate, that is a reason to examine whether the candidate shares the goals and tactics I deplore. But in the particular case, if we examine Obama's record and statements, we find absolutely nothing in them to suggest common ground with Hamas.

Indeed, we need look no further than the latest rantings of al Qaeda's Ayman al Zawahri for confirmation of the proposition that one shouldn't necessarily assume the opposite of what terrible people believe. Zawahri says that the United States has no good options in Iraq: maintaining an occupying force will not pacify the country and will only continue to fuel the insurgency, while withdrawing troops will lead either to a bloodbath or a Shiite autocracy under Iranian influence. Is Zawahri wrong merely because he's a mass murderer? No, of course not.

Nor is it at all clear that U.S. policy should be guided by the goal of doing whatever al Qaeda dislikes. For example, Zawahri mocks Muqtada al Sadr as an Iranian pawn, and given the enmity between the Sunni al Qaeda movement and the Shiite Sadr, this is hardly surprising. But it hardly follows that because our number one enemy opposes Sadr, we should therefore support him.

One would hope that the strength of an argument would be judged by its merits, rather than who happens to be making it. And in that spirit, I'll retract the disappointment I expressed yesterday with Pope Benedict XVI's silence on the Iraq war. His speech at the UN both condemned unilateralism and embraced the notion of multilateral humanitarian intervention. Although the Pope did not mention specific conflicts, it was hard to miss the import of his remarks. And it would be absurd for anyone who disagrees with the Pope on other issues---as I disagree with his views about the relation between religious conceptions of sexual morality and the legitimate scope of state authority---therefore to dismiss his views about international relations.

I mean to be making an incredibly simple and seemingly obvious point, but one that is so often disregarded: Bad people (like Zawahri or the Hamas leadership) sometimes say things that are true, and good people (like Pope Benedict XVI) who hold some views with which one might strongly disagree, can also hold other views with which one agrees. The relevant questions concern the views, not who holds them.

Posted by Mike Dorf

How Many Divisions Has He Got?

That was Stalin's famous rhetorical question aimed at dismissing the power of the Pope. Given the important role that the Catholic Church played in ending the Communist system that Stalin imposed on eastern Europe (especially in Poland), Stalin's dismissal of the Papacy's soft power was obviously misguided then, and it would remain so now. Even as church attendance has plummeted in Europe over the last two generations, membership in the developing world has remained strong. Thus, what the Pope says is important. And the thing he said yesterday that garnered the most attention was widely reported as a jab at secularism in the United States. In fact, the Pope's statements---with which I'll go on to disagree somewhat below---was a bit more nuanced.

Here's a question the Pope was asked on his plane, and his answer:

Vatican newspaper writer Andrea Tornielli: Holy Father, in receiving the new ambassador of the United States of America, you cast in a positive light the public value of religion in the United States. I’d like to ask if you consider this a possible model also for secularized Europe? Also, is there also a risk that religion and the name of God can be abused for supporting a certain political stance, including war?

Benedict XVI:
Certainly we can’t simply copy the United States. We have our own history, and we must learn from each other. What I find fascinating about the United States is that they began with a positive concept of secularism. This new people was composed of communities and people who had separated from state churches, and they wanted to have a secular state which would open possibilities for all the confessions and all the forms of religious expression. It was an expressly secular state, and it was directly opposed to a state-church. It was secular precisely out of love of religion, for the authenticity of religion, which could be lived only in freedom. Thus we find a state that’s expressly secular, but favorable to religion in order to give it authenticity.
We know that the public institutions in America, albeit secular, draw on a de facto moral consensus that exists among the citizens. This seems to me fundamental and positive to consider, also in Europe.

But in the meantime, more than 200 years of history have passed with so many developments. Also in the United States, they’ve had a new form of secularization, a new secularism, which is entirely different. They also have new problems, such as immigration, the “Wasp” ideology, and all these problems. The situation has become complicated and differentiated in the course of history, but the fundamental idea seems to me even today worthy of being observed.

Let's begin by noting that Pope Benedict simply ignored the portion of the question that invited him to oppose war. That's disappointing. This Pope, like his immediate predecessor, has not been shy about speaking out on moral issues, and certainly war is one such issue. He didn't even need to say that the U.S. invasion and occupation of Iraq were morally problematic. All he had to do was to condemn the use of religion as a cover for war. And he could have done so in a way that made clear he was talking about all religions. So this was a missed opportunity.

Next, I'll praise the first paragraph of the Pope's answer. Too often in public debate it is forgotten that a secular state can be a means of fostering religious freedom. There are many people who argue that the very secularism of the United States accounts for how hospitable a country it has been over the years to people of faith.

Now, the critique. In the second paragraph, the Pope distinguishes "a new form of secularization, a new secularism." He doesn't quite explain what this might be, but his answer to a question from the American Bishops elaborates a bit. (The full Q&A from the papal website is here.)

Perhaps America’s brand of secularism poses a particular problem: it allows for professing belief in God, and respects the public role of religion and the Churches, but at the same time it can subtly reduce religious belief to a lowest common denominator. Faith becomes a passive acceptance that certain things “out there” are true, but without practical relevance for everyday life. The result is a growing separation of faith from life: living “as if God did not exist”. This is aggravated by an individualistic and eclectic approach to faith and religion: far from a Catholic approach to “thinking with the Church”, each person believes he or she has a right to pick and choose, maintaining external social bonds but without an integral, interior conversion to the law of Christ. Consequently, rather than being transformed and renewed in mind, Christians are easily tempted to conform themselves to the spirit of this age (cf. Rom 12:3). We have seen this emerge in an acute way in the scandal given by Catholics who promote an alleged right to abortion.

Here I think the Pope is conflating two different phenomena. The reduction of religious life to "a lowest common denominator" is not a result of secularism but of efforts to modify the American commitment to secularism in order to have, for example, public religious displays and events that draw on, to paraphrase the Pope himself, a de facto religious consensus that is monotheist without espousing any particular faith. The alternative of something more sectarian would be rightly regarded as intolerable in a religiously pluralist society such as ours.

The second phenomenon to which the Pope refers is indeed a product of secularism, or at least of a commitment to religious freedom---that people can "pick and choose" their religious affiliation and the degree of that affiliation. But this is not some new secularism. This is precisely the old secularism that enabled various religious sects to thrive in what became the United States from colonial times. And the Pope rightly praised that tradition in his remarks on the airplane.

Finally, we come to the fact that the Pope is scandalized by the fact that some Catholics support legal abortion. There are, of course, legitimate secular grounds for believing abortion should be illegal, but note that the Pope does not invoke them. On the contrary, he is outraged that Catholics do not oppose abortion as Christians, as part of a commitment to live their daily lives as Christians, rather than to separate their religion from other aspects of life. It is possible to think that citizens can rely on their religious values in making judgments about public policy as citizens or elected officials. It's even possible to think that a religious view about abortion in particular is appropriate for such judgments (although I happen not to think this). What's disturbing about the Pope's use of this example and no others, however, is the suggestion that all religious views about all subjects are appropriate predicates for the judgment of citizens and elected officials about public policy. There appears in this view to be no room to render unto Caesar.

Posted by Mike Dorf

Executions and Abortions

The Supreme Court today handed down Baze v. Rees, holding that the three-drug "cocktail" used by Kentucky and the vast majority of other lethal injection states to perform executions, does not pose a sufficiently "substantial risk of serious harm." If a method of execution, when properly carried out, is humane, then it does not become categorically inhumane, the plurality opinion (by CJ Roberts joined by Kennedy and Alito) said, merely because there exists "a slightly or marginally safer alternative."

There are numerous interesting aspects to this case (and I'll be talking about some of them with Nina Totenberg on NPR later today), but here I'll just flag one---the connection with a case the Court does not cite: Gonzales v. Carhart, last year's decision upholding the federal Partial Birth Abortion Ban Act. There, recall, the argument was made by the plaintiffs that the Act was unconstitutional for its failure to include a health exception, and that in some circumstances an "intact D & E" (the method of abortion banned by the Act) was the safest. The Court's opinion---as well as Justice Kennedy's dissent in the earlier partial-birth abortion case, Stenberg v. Carhart, which effectively became the law in Gonzales v. Carhart---indicates that an abortion is not medically necessary simply because it is the safest method, so long as the alternative methods are not, objectively, unsafe.

Taken together, Gonzales v. Carhart and Baze v. Rees thus appear to stand for the proposition that the Court---or at least the conservative majority---will give substantial deference to government decisions about what constitutes a risk to health or a risk of terrible pain, even when those decisions are not made on strictly medical grounds.

Posted by Mike Dorf

Rankings shmankings

Yesterday, in a surprisingly touching ceremony, my Columbia Law School basketball jersey was "retired." Backstory: For the last seven years, Columbia and NYU law schools have had an annual basketball game between student teams to raise money for public interest law, with a 10-minute faculty game at halftime; I've played in each of these games, earning a kind of incredibly minor celebrity status as a result (as documented, for example, here); last week, I played in my last such game, both because of my impending move to Cornell and the nagging injuries that go with my advanced age (even older than Robert Parish when he retired). Today, a colleague of mine noted that I'm probably the only member of an American law school faculty to have his basketball jersey retired.

If so, that's because of the ridiculousness of the category. Which brings us, once again, to the topic of law school rankings. No doubt, every law school dean could find some set of criteria by which to measure educational quality such that her school comes out on top: most vending machine soft drink options per student; most comfortable library chairs; highest Wisconsin bar passage rate among students whose first names begin with the letter Q; etc.

Or, to take a real example, consider the report released yesterday by the National Law Journal, which ranks law schools according to the percentage of graduates who become first-year associates at the NLJ's top-250 firms. My current employer, Columbia Law School, comes in number 1 on the list (for the second year in a row), and my future employer, Cornell Law School, comes in number 6 on the list, just ahead of my alma mater, Harvard Law School, at number 7. Although the appearance of a school on the top 20 or top 30 of the list may have some relevance to a prospective student, the relative rankings are, or at least should be, meaningless.

Consider that Yale Law School ranks number 19, just behind Boston University Law School and just ahead of Boston College Law School. Nobody in her right mind would think that going to BU, Columbia, Cornell, or any of the other schools ranked ahead of Yale on this list would make it more likely that she could land a top firm job right out of law school if that's what she wants to do. The reason that Yale does poorly on the NLJ list relative to the other excellent schools is that a much higher percentage of Yale grads CHOOSE to do other other things right after graduation, such as judicial clerkships, government jobs and in some cases, academia.

This is all so blindingly obvious to anybody with any familiarity with the market for recent law school grads, that it's hard to believe that it wasn't also obvious to the National Law Journal. But insofar as the point of the NLJ rankings was to sell magazines (or drive traffic to its website), I suppose it has succeeded, and my posting of the link above only helps the NLJ. What those of us who have been criticizing the US News rankings for many years didn't realize was that it's possible for a nationally known publication to try to displace US News with an even worse ranking system.

Posted by Mike Dorf

No Atheists in Fox News

Last week, Senator Barack Obama provided some material for controversy-addicts awaiting their next fix: he suggested that people suffering economic woes for a long period of time become bitter and therefore cling to religion, guns, and anti-immigrant/outsider sentiment. Before long, both Hillary and McCain pounced on these statements as evidencing Obama's elitist and patronizing view of the world. Hillary produced the memorable one-liner, "people embrace faith not because they are materially poor but because they are spiritually rich." Right-wing columnist William Kristol then published an op/ed in the New York Times on Monday insisting that Obama's statement mattered (and should accordingly be discussed and fretted over some more) because it unmasked him -- he pretends to respect faith, gun rights, and working class concerns about immigration, but when he faces an audience of friendly listeners at a San Francisco fundraiser, he lets his hair down and admits that he holds the Marxist view that religion is the "opium of the people" (as translated from the German by Kristol).

If I were a more cynical person, I would suspect that William Kristol -- like John McCain and Hillary Clinton -- has his own reasons to be eager for a Clinton/McCain race and therefore hopes to persuade people (the superdelegates? the remaining voters?) that Obama could not win in November after having said what he did. Going with this cynicism, I might question the good faith of a right-wing columnist urging Democrats to steer clear of a particular candidate. In any event, I believe that Obama's comments do not "matter" and do not evidence anything but the most unremarkable realism.

There is an expression which says that "there are no atheists in foxholes." Atheists have, in fact, reacted to this expression with offense, indicating that they do not intend to believe in God, even when mortality is around the corner. It is accordingly religious people -- people who believe in God -- that draw the connection between dire circumstances and faith. How many people suffering an illness or the loss of a loved have said, "I don't think I could have gotten through this without my faith." Though it may be "spiritually rich" people who believe in God, as Hillary claims, religious people themselves do not dispute that faith can be very comforting during difficult times. This is presumably why believers prophecy that once in a fox-hole, the atheist tiger will change his stripes.

Like faith, people experiencing economic stress might find a release in "sport." I place "sport" (when referring to hunting) in quotations because I do not consider the use of weapons to kill defenseless animals a sport, any more than I consider robbery or kidnapping a sport, though all three admittedly require skill in selecting victims and carry the excitement inevitably involved in seeking a trophy from those who would prefer not to bestow it. To suggest that those suffering economic hardship might find comfort in "sport" should not be controversial.

And finally, the fear of the outsider is commonly associated with difficult financial times. It is no accident that large-scale economic distress has, in our not-so-recent past, provided fertile soil for the most notorious anti-semitic xenophobia in history. Barack Obama is not telling us anything we do not already know when he suggests that people turn against immigrants and people who are different from themselves when they are feeling frustrated and angry about their own wellbeing.

So why were people offended by his words? It is perhaps the worry that when we attempt to explain behavior we thereby deny that one could have a legitimate basis for engaging in that behavior. If you say that I believe in God out of frustration, then it sounds as though you are denying that I could believe in God because there is in fact a God. If you say that I hunt as an escape, that may suggest that I could not hunt simply because hunting is an inherently satisfying activity. And if you say that I want immigration reform because I feel insecure about my income, then I may understand you to be saying that I do not have a valid basis -- apart from my emotional needs -- for supporting immigration reform. It can be annoying, in other words, to have one's views attributed to one's emotional state rather than to the persuasive force of those views.

Despite this appearance, however, it is actually entirely coherent to say that God is awesome and also to observe that people tend to see how awesome God is when they are economically depressed (and thus need a relationship with someone who is awesome). It is also coherent to believe that hunting (or robbery or kidnapping) is fun and fulfilling while observing as well that a commitment to violent forms of fulfillment tends to rise when people are in financial trouble. And one can acknowledge valid concerns about immigration without negating the reality that anti-immigrant sentiment rises with economic hardship and that such sentiment contributes to the popularity of immigration reform.

Senator Obama has indicated no desire to do anything radical to interfere with religious faith, hunting, or immigration reform. On policy, his views resemble Hillary's, and he has shown an openness and a respect for those on the other side of the aisle that is quite refreshing and unusual. But he is also a thinking person, and when a thinking person ponders the popularity of God, hunting, and anti-immigration sentiment, he is likely to draw conclusions about the social facts that give to such popularity, quite apart from the legitimacy or illegitimacy of the underlying substance. That Barack Obama is a deep thinker is not a weakness but a strength. He should perhaps have phrased his words somewhat differently, but there is nothing disqualifying, alarming, or even especially controversial about anything that he said. To state what may be obvious to many, people who want to see the Democrats defeat the Republicans in November should therefore reject the advice of William Kristol and continue to support the best candidate for President, Senator Barack Obama.

Posted by Sherry Colb

The Barghouti Trial

[This is a little longer than usual. Seeing that it is more a personal narrative than a dense theoretical musing I hope you will indulge me. Thanks]

The title read: "Presidential Guard Attacks Barghouti 's Children". A picture of Barghouti's son was attached to the article;* he looked much older than when I last saw him six years ago.

Marwan Barghouti is a prominent Palestinian leader. A moderate, that turned to extremism during the "Second Palestinian Intifada" (2001/2). He was captured by Israeli forces in 2002 and tried for ordering terrorist attacks. He was convicted and has been incarcerated ever since.

Barghouti was tried in a civil court (rather than a military court), which is unusual for Palestinians tried for security offenses. It seems that the idea, which was pathetically executed, was to use his trial as a means to vicariously try the Palestinian Authority and Palestinian terror, which at the time were running rampant.

This was during the aftermath of a horrific period in Israel – the worst I ever experienced. People were being murdered everyday in the streets. For me, there were two months during which not a week went by without being in hearing distance of a blast. Barghouti was one of the main leaders of this surge in violence and for a short time it seemed that his trial would take on symbolic significance.

The trial was to take place in the Tel-Aviv District Court, where I was clerking at the time. In fact, the chambers of “my Judge” were on the same floor. On the first day of the trial our floor was packed with people. There were members of the Israeli fascist-right – yelling that Barghuti should be executed (there is no death penalty in Israeli civil courts, except for Nazis and their collaborators), people from the Israeli far-left, some Palestinians who were supporting Barghouti, family members of terror victims were also there, as well as politicians and the media. In other words, it was a mad house of yelling, crying, pushing, and shoving. At one point a “prominent” member of the Israeli fascists assaulted one of the Palestinians and was arrested. The various factions continued to yell at each other as security carried him out kicking and screaming. The worst moment for me was seeing a young traditionally dressed Arab Israeli Muslim women and the Jewish parents of a murdered child shouting at each other. The parents were simple people, clearly uneducated and not very eloquent. The woman, in contrast, was very sharp, so that even in Hebrew it was no contest. The parents, lacking the composure, the arguments or even the words to express their anger and pain were left ridiculed with nothing but rude gestures left in their arsenal.

Using the court’s internal passageways (not open to the public), I was able to get past the metal detectors and the crowd leading up to the entrance of the courtroom. It was not a large room, and hundreds who were hoping to enter were left outside.

I sat down at the very back row, looking at the crowd. A minute later a man and woman came in accompanied by two or three little children. I estimated their ages to be between 10 and 15, maybe younger. I think there were one or two boys and a girl. "It's the family, his children, let them through," I heard someone say. The wife was seated next to me, her children and the man, then, sat next to her. When the room was more or less filled the defendant was brought in, surrounded by guards. They unshackled him and he sat down on the defendant’s bench.

His wife and children rose. She gestured to them with her hands, as if she was saying "go go." They leaped ahead, shouting "baba baba". Barghouti heard them and stood up, looking back with surprise. The children were jumping over the wooden benches and between people's heads, trying to get to him. One of the guards saw them lunging in the direction of the defendant and tried to block their way, stretching his arms to the sides. Just before the boy was about to run into the guard, the head of security gestured with his head, and the circle around Barghouti broke, letting the children reach their father.

When the judges finally entered, most of the interesting part was over. The defendant denied the legitimacy of the court and claimed he was a "freedom fighter". In response the head of the panel said that "freedom fighters do not send homicide bombers to kill children" (proving, right of the bat, that this panel was out of its depth). The indictment was read into the record and the defendant was remanded and taken below. The hearing was over.

The room slowly emptied. The energy began flowing back from the courtroom into the hall, where the commotion was re-igniting. The last people left in the courtroom, as I exited, were some of the lawyers, a few reporters and the defendant's family. I ducked into the nearby "employees only" door, which lead back into the internal passageways of the court. There, on the internal staircase, stood the judge who was heading the panel, one or two of the defendant's attorneys, a prosecutor and a security officer, all bunched together. The defense attorney was attempting to convince the judge to have the defendant brought back up to the courtroom from the "holding tombs", so he could see his family. The judge protested. She said that the court was not the proper venue for family visits and that such requests are handled by the detention facility. The lawyer then explained that Barghouti had not seen his children in months, and considering that they somehow managed to get all the way to Tel-Aviv from the West Bank (not a small feat), it would be cruel not to allow it. At least I think that is what he said, although my memory may have filled in the blanks on its own. In any case, the judge was swayed.

I doubt whether this could have happened in the U.S., where “policy” and “procedure” leave so little room for such singular autonomous human gestures. Even when people muster the strength to consider “the policy,” their practical reasoning usually quickly slides into the slippery slope of the slippery slope argument, or into formal arguments of fairness. It is amusing to hear these arguments in concert: “what if everyone were allowed to see their children in court? It would be chaotic, and besides, it is not fair to allow him to see his children in court since others are not allowed either.” The more valid argument (which you also hear in the U.S.) may be that he did not deserve this kindness. In any case, I was pleased with the judge’s decision.

When it was all over, two things resonated with me most: the gap between how dramatic it all sounds and how non-dramatic it actually was, and how scripted it all appeared. Everyone there acted as they were supposed to act, entering and exiting the stage on cue and playing out roles already written for them and familiar to all. Except for the children leaping and for the judge showing compassion behind the scenes, it was all so predictable – “the political” we all know manifesting itself in actuality. It was like seeing concepts and national narratives written in flesh. On its face what I witnessed that day has the makings of a great drama, and in the hands of a crafty writer could make an excellent story. In reality it was banal, and the only drama occurred when people stepped out of their prescribed political and legal roles and became individuals.

That was the last I saw of those children. Not until a few months ago, when Palestinian soldiers attacked them for no good reason.

* http://www.ynetnews.com/articles/0,7340,L-3429265,00.html

Posted by Ori Herstein

Academic Freedom for Yoo and Me

Responding to calls for UC Berkeley to fire John Yoo, Boalt Dean Chris Edley (who taught me administrative law 20 years ago) has a nice defense of academic freedom here. Edley repeats the standard (and well-founded) criticisms of Yoo's performance as a lawyer for the Office of Legal Counsel but concludes that under the relevant university statutes, this isn't a close case. Yoo has tenure and, Edley suggests, tenure's protection for someone like Yoo is not merely an example of a rule that is justified in the aggregate leading to bad results in a particular case; rather, protecting someone like Yoo, Edley argues, is the very point of tenure.

I should say for the record that I agree with Edley's bottom line. However, I actually am not a big believer in tenure as an institution peculiar to universities: Yes, having tenure makes faculty free to speak their minds, but habits of mind are formed when junior faculty are trying to get tenure, and thus encouraged to be inoffensive in their work. And to the extent that tenure does protect free speech, I see no reason why it, or something like it, should not be available in other lines of work. So starting from scratch, I could favor tenure as a form of protection against all but for-cause dismissal available to university faculty and other types of workers. Even then, it's not obvious that the free speech benefits outweigh the shirking costs.

But I do believe in academic freedom and currently the way we protect academic freedom is through tenure. Unfortunately, the most vociferous calls for denials or stripping of tenure in recent years have, as Dean Edley suggests, come pretty close to the core. There are, in addition to Yoo's case, the cases of Nadia Abu El-Haj (discussed in last week's New Yorker, available only as an abstract here), and the food fight between Alan Dershowitz and Norman Finkelstein about the latter's tenure (just google it to find a few thousand accounts).

What these cases show, I think, is that outside efforts to deny or strip tenure usually backfire. It's much easier to deny tenure to a marginal candidate if the decision can't be portrayed as bowing to outside pressure than if it can be so portrayed. (Note that Dershowitz says he did not independently seek to get involved in the Finkelstein case but was asked for his opinion. Perhaps so, but once he publicly campaigned against Finkelstein, he set the backlash dynamic in motion.) Even if there are legitimate academic grounds to deny tenure, public campaigns invariably arise because of the political, not scholarly, dimensions of the work.

And that will almost certainly be the case with John Yoo. Edley has predictably rallied to Yoo's cause, as he should---for now. Edley concludes thus:

I will . . . state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute? Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

Activists have sought a war crimes prosecution against Yoo in Germany, and he has been sued in federal district court by Jose Padilla. If one of these or some other case actually finds Yoo culpable, will Dean Edley change his view? Should he?

Posted by Mike Dorf

Immigration

The emergence and disappearance of immigration as an issue in the Republican (and to a much lesser degree and in the opposite direction, the Democratic) primaries, coupled with the failure of immigration reform last year, does not mean that the underlying problems---a porous southern border; the lax enforcement of labor laws that makes hiring undocumented workers attractive to employers in the first place; etc---are going away. That's the big picture.

But there's also a small picture, and it's a disturbing one, in which those parts of the federal bureaucracy responsible for processing immigration (including citizenship) applications subject immigrants to petty indignities and risk of deportation for no other apparent reason than institutional callousness. Today's NY Times front page carries a story describing how legal residents risk deportation for technical errors in complying with the maze of requirements when they attempt to become citizens. And a couple of weeks ago This American Life had a segment ("Act 2") on the way in which the Citizenship and Immigration Service opts to deport non-citizen spouses of U.S. citizens when the U.S. citizen spouse dies before the agency finishes processing the citizenship paperwork before the death---even if the surviving spouse has a child who is an American citizen. These are stories of an agency culture that is almost pointlessly callous.

Here I'll add just one personal observation that tends to confirm my hypothesis that the problem is as much one of bureaucratic culture as it is one of policy. My wife and I adopted our older daughter from China in 2002. The process involved numerous formalities, some imposed by the Chinese government (such as the requirement that documents be notarized, and then authenticated by municipal and state authorities) but others imposed by the U.S. government. I was fingerprinted five separate times during the process; not surprisingly, my fingerprints didn't change. In addition, during the period when we were waiting for U.S. government approval, we were told by the domestic agency with which we were working that the only way we could check on the status of our application was to call the relevant federal agent on a Wednesday between 9 and noon. Needless to say, her line was often busy. But my favorite example of pointless bureaucratic obstacles was that when we re-entered the country with our new daughter, the U.S. government issued her a green card rather than a citizenship certificate, even though under U.S. law, re-entry after a two-parent foreign adoption made her a U.S. citizen. This was the agency's policy, and it didn't want to change it just because of the law. To get a citizenship certificate, we had to re-adopt our daughter under New York State law, a process that required two more home studies, another round of fingerprints, and a whole lot more paperwork.

Having dealt with other parts of the U.S. government (and various state and government agencies), I do not take the view of some conservatives that government bureaucracies are inherently callous and inefficient. For example, in many states, Departments of Motor Vehicles, long the object of scorn, have become models of customer service. But without a mandate for change, bureaucratic cultures persist, and in the case of Immigration, the only mandate that has been given to the agencies in recent years has been to be skeptical of immigrants, reinforcing an institutional culture of skepticism and callousness. Although there are good national security reasons to be careful of our borders, there is no national security justification for extending that skepticism to people already here who seek to become citizens, much less to one-year-olds.

Posted by Mike Dorf

Sunnis, Shiites, Whatever

Even after the public spectacle of Joe Lieberman whispering in John McCain's ear to inform him that Iran is not arming al Qaeda in Iraq, Sen. McCain repeated the error earlier this week in a Senate Armed Services Committee hearing. McCain's recidivism on this issue tends to rule out the possibility that he just "misspoke" in the way that anybody---especially somebody who is sleep-deprived or jet-lagged---can occasionally become tongue-tied. I'll identify three possible explanations for the repeated error:

1) McCain's age. This seems unlikely. McCain is 71, substantially older than either Hillary Clinton (60) or Barack Obama (46), but not so old that one would expect to see dementia or much age-related memory loss. Moreover, while McCain routinely confuses Shiites and Sunnis, he doesn't confuse other categories, like liberals and conservatives, or Ohio and Iowa.

2) McCain's worldview. In the neocon view of the Middle East, ancient sectarian battle lines between Shiites and Sunnis exist, but are swamped by the defining conflict of "Islamofascism" against the West. Thus, Cheney and Rumsfeld pressed their intelligence officers to find a link between Saddam Hussein and 9/11, even though area experts assured them that Saddam, a secular Stalinist who used religious symbolism only opportunistically, would not sufficiently trust al Qaeda, a radical fundamentalist movement dedicated, among other things, to overturning regimes like Saddam's. Likewise, even though people familiar with the region understand that al Qaeda---as an organization that treats Shiites as heretics worthy of slaughter---would not be popular with the Shiite theocrats who rule Iran, the neocons see such conflict as mere intramural squabbling, and have little difficulty imagining that the Iranians and al Qaeda in Iraq would unite to fight the U.S. And as the New York Times reports today, McCain has been taking advice from neocons lately.

3) McCain as Bush. Although widely perceived as world-savvy and ready on day 1 to answer the 3 am phone call, McCain is not especially knowledgeable about foreign affairs. His credibility appears to be based principally on: a) His undeniable courage and self-sacrifice as a Vietnam War POW; b) his long Senate career; and c) his willingness to shoot from the hip and more generally, his apparent ironic detachment from politics, taken by the press and the public as a sign of deeper knowledge. In fact, McCain is a pretty smart fellow, whose dismal class rank at Annapolis was more the product of frequent disciplinary issues than poor studies. However, like George W. Bush---who also is not a dummy---McCain has an uncanny ability to filter out, or not even show any interest in, information that does not conform to his world view.

None of the above explanations is good news for the McCain Presidential campaign, and a smart Democratic campaign would exploit that fact. One of Karl Rove's innovations as a political tactician was to go at opponents' strengths, rather than their weaknesses. This can be done unfairly, as with the SwiftBoating of John Kerry, but it also can be done fairly. McCain will be running a campaign based on his national security credentials. An important piece of the the Democratic strategy to defeat him should be to show, honestly, that these credentials---as reflected by the judgments he has made and the world view he holds---are weak.

Posted by Mike Dorf

"A Special Kind of Cowardice"

That's what NYC Mayor Michael Bloomberg termed the decision of New York State legislative leaders (i.e., Assembly Speaker Sheldon Silver) to kill the plan for "congestion pricing" in mid-to-lower Manhattan without even a floor vote. Bloomberg's full statement (available here via the Village Voice) describes the environmental and economic benefits that congestion pricing would have achieved, and vows both to pursue other options and one day to fight again. It's a good argument but one that doesn't seem to confront the root psychological cause of the defeat of the plan.

Congestion pricing was designed as a Pigovian tax: The marginal cost of each additional vehicle in mid-to-lower Manhattan is felt in part by each additional driver and her passengers, but in even larger part by others: more traffic means it takes longer to get to one's destination and more pollution. This is what economists call a negative externality. By making drivers pay extra to drive in the high-traffic-density zone, the congestion pricing plan would have made drivers internalize that cost. The revenue would then have gone to fund public transportation. That's win-win. The Pigovian tax discourages socially harmful activity while using the revenue for socially beneficial activity. (Investment in public transportation makes it a more attractive option, thus further reducing the number of motor vehicles on the roads.)

So why did it fail? One answer is that the benefits and burdens were not perceived as evenly distributed. The money would come principally from people living outside Manhattan (in the outer boroughs and the suburbs), but it would then go to make improvements in transportation largely within Manhattan. It's not clear that this was an accurate perception. Outer borough and suburban commuters use public transportation, and would do so even more with improvements to the public transportation system. Plus, those commuters who chose to drive and pay the congestion fee would benefit from less congestion due to some of their fellow commuters choosing to switch to public transportation. But whatever the reality, the plan was perceived by many non-Manhattanites as Manhattan taxing non-Manhattanites for the benefit of Manhattanites.

There is another possible (and possibly complementary) explanation as well. Despite the fact that Pigovian taxes make excellent policy sense, Americans resist them when they apply to activity they regard as essential. Exhibit A for this proposition is the pitifully low gasoline taxes we pay relative to other oil-importing countries. According to Gaspricewatch.com, the total of federal and state gas taxes in the state with the highest per gallon gas tax (Wisconsin) is 50.5 cents per gallon. According to the Wikipedia entry, in the UK it's effectively $4.84 per gallon, and in Germany it's effectively $7.61 per gallon. The environmental and national-security benefits of increasing the federal gasoline tax by $2 per gallon would be enormous, and would still leave Americans paying less at the pump than Brits and Germans. Yet proposing this would be suicide for any politician (except perhaps one with a 212 area code).

We might explain some of the resistance to a gas tax as rooted in the fact that it would be regressive---although the resistance persists even when proposals to increase the gas tax include plans to offset the effects for low-wage earners through an expansion of the earned income tax credit or in some other way. Accordingly, I would suggest that a substantial portion of the opposition to a gas tax---and more generally to all taxes---comes from Americans' tendency to see the burden but not the benefits of taxation. A proposal to add $2 to the price of a gallon of gasoline looks to consumers like a proposal to charge them more money for gasoline (which of course it is). That proposal naturally triggers resistance: Why would anyone want to pay more than they have to for gasoline (or anything else)? The answer can only be because they're getting something of equal or greater value: less traffic, better transportation, less global warming, cleaner air, less dependence on oil from volatile/hostile regimes.

Yet the fact that a substantial increase in the gas tax would be met with overwhelming opposition means that Americans have not been shown how the benefits of such a tax increase would outweigh the costs. Why not? Could it be because the politicians who are in a position to lead on this question have engaged in a special kind of cowardice?

Posted by Mike Dorf