Saturday, May 31, 2008

The Rules Committee

I've been sitting here fascinated by the debate in front of the Rules & Bylaws Committee of the Democratic Party, and wondering why there was such a lack of coordination between the advocates for the Florida and Michigan motions. The Florida proposal was well-reasoned and based in the rules, while the Michigan proposal was strident and really didn't offer the committee a principled resolution. My bet, however, is that the Florida "Ausman" proposal is going to be adopted in full, with 100% of the superdelegates seated and a 50% seating of the pledged delegates; that the same remedy will be applied to Michigan; and that the Michigan delegate votes will be split 34-30 between Clinton and Obama. I offer no prediction on whether it's half votes for all, or full votes for half. I offer no prediction on the Florida split.

Other entertaining bits: the tension between Harold Ickes and James Roosevelt. Do you think that they fought over a rattle while Harold's dad and James' grand-dad were playing nice?

The Professional Literature System of the American Legal Academy – Why Has It Not Been Fixed Already?

We are now well into the aftermath of the law review submission season. The dust has settled on everyone's submissions and all, from the hopeful students to the Ivy League professors, know how well they did on the law review market. It is now time for both aspiring and established legal academics alike to complain and reflect critically about the student-run system of law reviews. Of course, there is nothing novel in these critiques; by now they are well-known and widely shared.

There is no need to reinvent the wheel in order to fix many of the problems with the current law review system. The academic profession long ago found a better, if far from perfect, approach to academic publications – the blind peer-review system. For example, in a past post Michael Dorf suggested a model along these lines.

Seeing that the system of professional publication of the American legal academy has been broken for some time now, the real puzzle in my eyes is not how to fix it but rather why it was not fixed a long time ago? Especially considering that the people who do most of the criticizing are also the same people with the power to change things (a rare occurrence indeed). I cannot but wonder whether some of the reasons why the vast majority of academic legal publications are not blindly peer-reviewed may be, despite appearances, that many legal academics actually have overriding interests in preserving the status quo. This is not to allude to any conspiracy or to entirely rule out prisoners' dilemmas, institutional constraints and the power of habit and tradition. But even discounting all these factors, I still wonder whether the interests of those who have the power to fix the current system actually favor the present state of affairs.

Posted by Ori Herstein

Friday, May 30, 2008

Gubernatorial Activism

I have watched with amusement over the years as the charge of "judicial activism" has morphed from meaning something like "a judicial decision to overturn the will of the people" into something more like "a judicial decision the speaker doesn't like." A nice recent example of the latter was in Sen. McCain's May 6 speech, in which he condemned Kelo as an instance of judicial activism---even though the Kelo case left to elected bodies the decision whether to use the power of eminent domain for redevelopment projects. It was the losing side in Kelo that sought intervention by the courts to block the political process. Kelo may or may not have been rightly decided. (I happen to think it was rightly decided, although I thought the New London plan was a bad idea.) But if it was wrong, that is not because it was an activist decision, unless "activist" is now simply a synonym for wrong.

Meanwhile, it turns out that charges of activism have now moved from the judicial to the executive realm. Note the reaction of one conservative (ahem) activist to the news that New York Governor David Paterson issued a directive to New York agencies to recognize as legal out-of-state same-sex marriages. Here's the quote from yesterday's NY Times story:
“It’s a perfect example of a governor overstepping his authority and sidestepping the democratic process,” said Brian Raum, senior legal counsel for the Alliance Defense Fund, a national organization opposed to same-sex marriage. “It’s an issue of public policy that should be decided by the voters.”
Since when are governors not permitted to make decisions of public policy? Perhaps Mr. Raum was referring (obliquely) to the fact that Paterson was not elected Governor but became Governor when Elliot Spitzer resigned. But if so, this point is triply misguided: Spitzer himself favored recognizing same-sex marriage; Paterson was elected on the same ticket as Spitzer; and if the voters of New York State are unhappy with this decision, they can turn Paterson out of office and replace him with a Governor who will rescind the directive.

There could be a legitimate complaint of overreaching if Paterson's order purported to bind the courts and the NY legislature, but it appears not to, and with respect to the courts, it's not even clear that this would be overreaching. At the federal level, under the Chevron doctrine, executive interpretations of statutes are given deference by the courts. I'm not saying that Paterson's directive necessarily would be entitled to the same deference---only that seeking such deference would not automatically count as overreaching. In any event, Raum's criticism appears to be less about checks and balances and more about the substance of Paterson's directive.

Next up: Criticism of "legislative activists" who use their majority status to enact laws that oppress the constituents of the minority of legislators who oppose those laws. At that point, the critics will need to turn to the courts to block such laws, which, of course, will not be judicial activism because, uhm, you know, these will be BAD laws. Oh no wait. We're already there. See McCain speech, supra.

Posted by Mike Dorf

Thursday, May 29, 2008

Nobody Likes a Sore Loser

At the end of Tuesday night's Western Conference final game 4, Brent Barry attempted a 3-point shot that would have given his San Antonio Spurs the victory and tied the series 2-2. Barry missed badly, but not before he appeared to have been fouled by Los Angeles Lakers guard Derek Fisher. Under the NBA's "continuation" rule, Barry would have been awarded three free throws with no time on the clock, and Barry, an excellent free throw shooter, could well have won the game right there. To make matters worse, the referee who did not call a foul was Joey Crawford, who has had a stormy relationship with the Spurs---most famously calling a technical foul on Spurs All-Star Tim Duncan for laughing while seated on the bench.

Yet to their great credit, the Spurs have not complained about the non-call. To be sure, their case would not be especially strong. For one thing, it's not entirely clear that Fisher fouled Barry. Barry pump-faked, Fisher jumped, but then Barry dribbled once to put himself in Fisher's path. Perhaps Adrian Dantley or Reggie Miller might have gotten that call on the defensive player, but under the rules as written and as they are often interpreted, no call, or even an offensive foul on Barry, might have been the right response from the referee. Even the NBA, which, after reviewing the video after the game said a foul should have been called on Fisher, said it should have been a non-shooting foul. And the refs blew a call---failing to reset the 24-second clock---in favor of the Spurs on the previous play.

Nonetheless, by uniformly refusing to blame the refs, the Spurs have shown a great deal of class. (Some might say atypically so: Bruce Bowen regularly punches and otherwise takes cheap shots at players he's defending; Manu Ginobli acts as though he has been shot in the abdomen if a defensive player gets to close to him; and Tim Duncan stares in disbelief whenever a foul is called against him.) And this brings me to the law. (You thought I was going to tie this to Hillary Clinton, didn't you. Ha!)

The widespread admiration the Spurs have earned for their refusal to blame the refs reflects a politically conservative sentiment: People should take responsibility for their own misfortunes rather than ascribe responsibility to external factors. One sees this principle at work in the movement that ended welfare (AFDC) and the movement away from explaining criminal behavior in terms of social factors. One also sees a closely related principle in conservatives' hostility towards tort plaintiffs, even though people who suffer injuries as a result of others' negligence or misconduct are not, as a class, responsible for their misfortune at all. Nonetheless, the same basic principle applies and goes something like this: "Life's unfair. Suck it up. Stop whining."

Whatever one thinks of this principle in these policy domains, the fact that nobody likes a sore loser shows that, in some contexts, it has considerable appeal.

Posted by Mike Dorf

Wednesday, May 28, 2008

Hearsay, the Sixth Amendment, and the Presumption of Innocence

In my FindLaw column today, I talk about Giles v. California, a case that the U.S. Supreme Court is currently considering. The case asks whether a murder defendant suffers a Sixth Amendment violation when the deceased victim's earlier statements (accusing the defendant of a prior assault) are admitted into evidence, given the defendant's inability to cross-examine the victim about her statements. The column's focus is on explaining the relationship between hearsay (out-of-court statements offered into evidence as proof of what the statements assert) and the Sixth Amendment right of criminal defendants to be "confronted" with the witnesses against them (a right that ordinarily includes cross-examination). The column also discusses the rigid originalism that characterizes at least four of the Justices' thinking about this relationship, as evidenced during oral argument.

In this post, however, I want to discuss a different aspect of the Sixth Amendment issue. Briefly, the case revolves around the question of whether an old common law exception to hearsay for "forfeiture by wrongdoing" applies to a defendant who complains that he cannot cross-examine the out-of-court statement of a woman whose unavailability for such cross-examination is a direct product of the defendant's having murdered her. For reasons I explain in the column, if the defendant had killed the victim with the goal of keeping her from testifying against him, then the forfeiture-by-wrongdoing exception to the Confrontation Clause would apply, and the admission of her statements would be constitutionally unobjectionable. Because this defendant killed his victim for a different reason, however, the application of the forfeiture-by-wrongdoing exception is an open question.

The issue I want to highlight here is what is called "coincidence." Coincidence refers to the situation in which a judge must determine the same facts in deciding the admissibility of evidence as those the jury will have to determine in reaching a verdict of "guilty" or "not guilty." In Giles, for example, the California judge -- in applying the forfeiture-by-wrongdoing exception -- had to (and did) conclude that the defendant, on trial for killing Brenda Avie, in fact did kill Avie, before the judge could admit the evidence over the defendant's Sixth Amendment objection. The jury then had to determine, in its own deliberations over the proper verdict, whether the defendant killed Avie. Justice Ginsburg expressed concern over this coincidence during oral argument. It has the flavor of deciding that the defendant is guilty at a time when he is still supposed to be presumed innocent.

The coincidence problem is not, however, unique to the forfeiture-by-wrongdoing exception to the Sixth Amendment. Judges regularly must make factual findings in ruling on evidentiary issues, and some of those findings are bound to coincide with those that a jury must make on the merits of the criminal charge. Application of the co-conspirator exception to hearsay is another example, where the judge has to conclude, among other things, that the defendant conspired with a third party to commit a crime, before the judge may admit the third party's out-of-court statement against the defendant, and the jury must conclude the same thing to convict the defendant on conspiracy charges.

Though perhaps somewhat troubling, "coincidence" arguably does not undermine the presumption of innocence, because jurors do not know that the judge must conclude that the defendant killed the victim before jurors may hear about the victim's prior statements (unless the jurors happen to be evidence law experts). Jurors hear only the evidence itself, not the judge's basis for admitting it, and they can therefore reach their own, independent conclusions, free of the taint of a judge's perception of the facts. It may be that this tension -- between the respective roles of evidence arbiter and ultimate fact-finder in reviewing the evidence -- may represent one of the best arguments for allocating the two jobs to two different actors, an argument, in other words, against bench trials.

Posted by Sherry F. Colb

Tuesday, May 27, 2008


The Supreme Court decided two employment discrimination cases today involving retaliation. In Gomez-Perez v. Potter the Court found that as applied to federal-sector employees, the Age Discrimination in Employment Act (ADEA) forbids retaliation against employees for complaining about age discrimination, while in CBOCS West, Inc. v. Humphries, the Court found a similar prohibition on retaliation against employees who complain about race discrimination under 42 U.S.C. sec. 1981. Interestingly, Justice Alito wrote the majority opinion in Gomez-Perez and joined the majority in CBOCS, while CJ Roberts dissented in Gomez-Perez and joined the majority in CBOCS. Only Justices Scalia and Thomas dissented in both cases.

The decisions turn on the wording of the relevant statutes, comparisons with other statutes, and the Court's prior decisions, but at bottom they also turn on how the Court views the anti-discrimination laws. At least where the complainant himself or herself is the alleged victim of discrimination, disallowing retaliation claims is perverse. It permits an employer a valid defense by claiming "we didn't fire you because of your race [or sex or age]; we fired you because you complained about discrimination based on race [or sex or age]." Such a regime discourages employees from making internal complaints about discrimination and can gut anti-discrimination law.

CJ Roberts is right when he says in his Gomez-Perez dissent that a statute that confers a right against discrimination doesn't necessarily confer a right against retaliation, but given the perversity just described, one should demand a clear statement in the statute excluding retaliation claims before one rejects them. Arguably, one could find such a statement in the structure of the federal-sector ADEA as juxtaposed against the private-sector ADEA, which makes the Chief Justice's Gomez-Perez dissent at least reasonable. No such clear statement can be found in section 1981, which arguably shows Justices Thomas and Scalia to be hostile to anti-discrimination law.

Posted by Mike Dorf

Canadian S Ct on Gitmo

Here's an interesting little decision by the Supreme Court of Canada. Last week, in Minister of Justice v. Khadr, the Court applied the rule that the ordinary principle under which Canadian law does not apply extra-territorially, itself does not apply (and so Canadian law does apply extra-territorially), where Canada has participated in a process that violates its international law obligations. At issue was a request by Omar Ahmed Khadr---a Canadian being held at Gitmo---for records of interviews conducted there by Canadian officials.

Under the Canadian Charter, if the interviews had occurred in Canada, Khadr would have a right to the material. The Charter normally would not apply because Gitmo is not in Canada, but Khadr's detention there violated the Geneva Conventions. The Supreme Court of Canada---which has long had a John Marshall-esque ability to say a lot while not actually saying very much---avoided the delicate question of whether Gitmo in fact violates international law by instead relying on the U.S. Supreme Court decisions (especially Hamdan) that say as much. As Canada is a party to those same Conventions, the Canadian high court says, it cannot escape its Charter obligations.

The ruling may or may not have significance for Khadr's own case, but its larger importance stems from its symbolic effect. Under rules of comity, courts of one nation routinely give effect to legal processes of other nations. The exception invoked by the Supreme Court of Canada is usually reserved for truly uncivilized or tyrannical regimes in which the legal system lacks rudimentary due process. Its invocation by our closest ally against the United States is a reminder of just how much damage the Bush Administration has done to the international reputation of the U.S. as a nation committed to the rule of law.

Posted by Mike Dorf

Sunday, May 25, 2008

California's Majoritarian Difficulty

Over on FindLaw, my fellow columnist Vik Amar registers a small disagreement with me over how to characterize the interplay between the California Supreme Court and the voters of California. In explaining why I thought the Cal S Ct was right to apply the principle of equal protection as expounded in its cases, rather than simply following public opinion on the permissibility of banning same-sex marriage, I said "California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." Not so fast, says Amar. "In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view" because the continued existence of minority rights depends on the majority not amending the constitution to eliminate them. He approvingly quotes the other Professor Amar (his brother Akhil) for the proposition that "[i]n the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes."

Amar was kind enough to share his column with me before it went up, and in private correspondence he suggested that our difference may be simply over wording rather than substance. I agree that this is a possibility, but with that very caution in mind, I nevertheless want to stick with my formulation of the point. Note that in the line quoted above, I said that California law does not currently embrace the view that the term equal protection should be defined so as to treat as equal whatever arrangements the majority believes are desirable. Of course, if the California Constitution were to be amended to eliminate its equal protection clause or to make the principle of equal protection non-justiciable, then my statement would no longer be true.

Amar suggests that this is a semantic distinction because the existence of minority rights ultimately depends on the views of the majority. Amar is wrong when he says this point is true of "all constitutional law." Where a constitution can only be amended by a super-majoritarian process (as is true of the U.S. Constitution, for example), minority rights, once made part of the constitution, will remain a part of it even if there is majority opposition to them, so long as that majority does not become a sufficiently large super-majority.

But what about California, which permits constitutional amendment by simple majority vote in a referendum? Here, I want to suggest that the California constitution is actually defective. At some point in California history, the requirement of obtaining signatures reflecting 8% of the voters to put a constitutional amendment before the people probably acted as a significant filter. However, modern methods of politics---including paid petition staff---have made this a relatively easy task. Accordingly, the California Constitution can be amended very easily.

As I noted in my column, the ease of amendment of the California Constitution should dramatically reduce the fear of judicial activism in California. If the Justices are terribly out of step with popular opinion as to the meaning of the state Constitution, the voters of the state can readily "overrule" the Justices. Thus, there is no real "counter-majoritarian difficulty" in California.

There does, however, appear to be a "majoritarian difficulty" in California. One of the purposes of having a constitution is to limit majoritarian decisions. Where a high court ruling is too difficult to change via constitutional amendment, the counter-majoritarian difficulty arises. But where the constitution can be amended as easily as a statute can be enacted, it effectively does not limit the majority, and thus we have the majoritarian difficulty.

Where, exactly, is the sweet spot between a Constitution that is too difficult to amend and one that is too easy to amend? That's a hard question to answer in the abstract, although prima facie, a constitution that is impossible to amend (as the German Constitution purports to be on certain particulars) seems too difficult, whereas a constitution that can be amended by the ordinary legislative process (as the Israeli Basic laws can be) seems too easy. But much depends on context. A simple majority vote in the national or provincial legislatures is all that's required to supersede a constitutional decision of the Supreme Court of Canada under the Notwithstanding Clause, but a strong customary norm has made that power very difficult to invoke in practice.

However one cashes out these questions in particular cases, it does seem that the one formulation we can categorically reject is Amar's. If you're going to have a constitution that functions as higher law at all, it can't depend on the will of the majority in the same way as ordinary legislation does.

Posted by Mike Dorf

Friday, May 23, 2008

What’s in a Name?

It has been reported that Senator Obama is now putting a stronger emphasis on the Jewish vote, especially in Florida – a key state for the national election. It has also been reported that as part of this effort Senator Obama, in a recent appearance in a Florida synagogue, asked the audience not to judge him according to his skin color or his name, referring in part, I assume, to his Muslim middle name – Hussein.

I found this appeal offensive and worrisome. It should surprise no one that some American Jews have certain concerns with Senator Obama’s candidacy: his past statements about negotiations with Iran, his short public record on matters of foreign policy and Israel, his affiliation with Rev. Jeremiah Wright and the general sense he gives of a na├»ve belief in the effectiveness of talks and negotiations and of an overly strong reluctance to use force when needed. For many American Jews (naturally not for all) these factors raise questions as to the decisions and sentiments Senator Obama will have as president, if elected; questions that do not arise in the case of Senators Mccain and Clinton.

These are perfectly legitimate concerns. To an extent I have them myself. It is certainly possible that these concerns are misguided or based on misconceptions, but they are definitely understandable and are by no means illegitimate or irrational. In addition, these concerns have absolutely nothing to do with Senator Obama’s name or skin color (which for me, if anything, make him more appealing rather than less for reasons of multiculturalism, diversity, variety and historic justice etc). While I have no doubt that some voters, including some Jewish voters, question and even oppose Senator Obama for illegitimate reasons, to attribute these tendencies to the “Jewish voters” by raising them in a synagogue during Senator Obama’s “Jewish campaign in Florida” is offensive an unfair. It almost rises to a covert accusation of racism and has the effect of delegitimizing and silencing legitimate concerns. In fact, this statement may make some people even uneasier with Senator Obama rather than help build trust. Also, Senator Obama’s continuous statements about his many Jewish friends do not help either.

Senator Obama needs to dispel these concerns by doing two things: (1) make clearer statements about his values and future policies and, (2) convince people that he in fact means what he says about where his loyalties lie and that he will have the resolve to do what he promises. Lately Senator Obama has made all the right statements, but some of his trust building tactics leave something to be desired.

To be clear, this is no more than a critical observation. I am neither mortally offended by Senator Obama nor do I think that he has committed an unforgivable sin. In fact, I may very well end up voting for him. However, as of now, while I would really like to be convinced, I am still on the fence.

Posted by Ori Herstein

Civil Disobedience vs. Selfish Greed

About a month ago, Wesley Snipes was sentenced to the maximum three years in prison after being convicted on three misdemeanor tax charges. Given my obvious interest in the case (see here, here, and here), I felt a considerable urge to weigh in on the decision here on Dorf on Law; but all I could think to say was, "Hurrah!" Dorf on Law has a stated preference for shorter posts, but that would be too little of a good thing.

Yesterday brought news, however, that U.S. District Judge William Terrell Hodges has granted bail to Snipes while defense lawyers pursue an appeal. The question of bail in this case is a difficult one. As the judge pointed out, the appeal process could stretch out over many months or even years, raising the prospect that Snipes could be jailed for nearly the entirety of a sentence that could ultimately be reversed. The injustice of such an outcome is indeed troubling, but the judge's reasoning at least raises the question of whether such considerations by a court might lead to a de facto rule that any defendant with the financial resources to pursue a lengthy appeal could create his own reason for bail: "I plan to drag this out, so I cannot be jailed while I drag this out." Moreover, there is a rather obvious risk of flight posed by someone with Snipes's financial resources, international connections, and pattern of behavior in this case. (The court's order merely states summarily that "The Court is persuaded by the history of the case and all of the attendant circumstances that the Defendant poses no substantial risk of flight ...")

Be that as it may, it is at least possible that the more important issue here is whether Snipes is a hero or a scoundrel. In my original post on this subject, I pointed out that the likely outcome of this case for Snipes made his behavior -- at least ex post -- a rather poor advertisement for those who claim (as Snipes has) that the entire U.S. tax system is a fraud on the citizenry. I wondered how a person of lesser celebrity could look at Snipes and think that his course of action was something to be emulated. As an angry emailer soon pointed out to me (and as my post at least obliquely acknowledged), the cost/benefit analysis involved in Snipes's case could be very different if one views him as a heroic fighter against government oppression. In that light, the risk of time in prison (as well as the considerable financial loss) is nothing compared to the larger liberty interest that his actions attempt to protect. Principle is principle.

In other words, Snipes might not have been engaging in tax fraud because he wanted to avoid paying millions (or even tens of millions) of dollars in taxes but because he had consciously chosen to engage in civil disobedience against an evil state. In that case, perhaps my "hurrah" should be held in reserve for the possible reversal of his conviction on appeal, not his unjust conviction and sentence.

One obvious answer to this possibility is simply that Snipes's substantive claims are fatuous. Outside of the citizens of the District of Columbia, we Americans are not subject to Taxation Without Representation. After decades of trying, those who believe that our system is inherently illegal have lost every attempt to convince a judge, a Congress, or a President that the tax system is fundamentally corrupt. While it is possible that the system is nonetheless rigged against the truth, it is increasingly difficult not to view such claims as delusional.

Less obvious is the question of what Snipes would be doing if he really believed that he was a freedom fighter. Civil disobedience involves more than merely saying: "The government shouldn't do what it's doing to me, and I'm going to do everything I can to stop it." If that were the definition of civil disobedience, after all, then even every guilty criminal defendant would be a hero. The essence of civil disobedience is the willingness to stand up and accept the state's (unjust) punishment in order to rally public support to a just cause. It is, of course, natural to hope that the justice of one's cause will become manifest, allowing the public to rise up and make one's own sacrifice unnecessary; but at the very least, civil disobedience must involve a clear admission of what one has done and the willingness to say that the consequences of those acts -- even including the loss of liberty itself -- are less significant than the larger cause.

What has Snipes done? He has engaged in every kind of subterfuge, sending bad checks to the government, altering documents, showing up at his sentencing hearing with $5 million dollars to try to settle his back taxes for less than the amount owed (undermining his claim that taxes need not be paid), etc. In other words, he has engaged in activities that do not say, "I did this, and I'm proud to pay the penalty if others cannot see the injustice of punishing me for standing up for freedom," but rather, "I thought I could get away with not paying my taxes, and I'm still looking for a way to get out of this."

There is no way to know what is in this defendant's mind, but this looks nothing like civil disobedience and everything like selfish greed.

-- Posted by Neil H. Buchanan

Thursday, May 22, 2008

The Murder of Kuritsa the Chicken and the Disrespectful Effect of the Equality-of-Respect Critique of Victim Impact Statements

The final episode of the Israeli version of Survivor aired on Saturday. One of the season’s dramas was the tale of Kuritsa the chicken. As the Survivors first landed on the island they encountered two chickens running around on the beach; they ate one chicken early on, while the other chicken gradually became a minor character on the show. It would steal food, shelter from the rain with the Survivors, run around the camp and was generally a source of laughter, annoyance and affection; it even infiltrated popular culture. Her name, given by her fellow Survivors, was “Kuritsa” (which means “chicken” in Russian). In a recent episode, one of the most infamous Survivors decided to prepare a farewell-to-the-island dinner party for himself and the remaining Survivors, and proceeded to chop off Kuritsa’s head. Upon returning to the camp, some of his fellow Survivors were appalled and refused to join in the subsequent meal.

A moral conundrum came to light – if most participants had thought that it was permissible to kill and eat the first chicken, how was Kuritsa’s case different? Isn’t it hypocritical to value the life of one chicken but not the life of another chicken, after all a chicken is a chicken – whether it is right or wrong to kill and eat the one, the same must be true of the other. It seems to me that this line of reasoning misses an important point, since when we deduct the wrongness we find in the killing of the first chicken (or for that matter in the killing of any generic chicken) from the overall wrongness we find in the Kuritsa slaying, we see that the latter slaying contains an additional quality of “wrongness” that the former slaying does not. Survivors offered several explanations of how the slaying of Kuritsa was different. Most of them emphasized the fact that Kuritsa had belonged to all of them and that, therefore, they should all have been consulted about her fate.

But there was more to Kuritsa beyond her value as the pet of the Survivors. The chicken, by developing into “Kuritsa,” had become the center of a web of value, formed around her and with her: relationships, jokes, memories, stories, feelings, attachments etc., all of which were uniquely linked to that particular individual chicken. The first chicken, slain at the beginning of the show, was in many ways a generic chicken – it merely had whatever intrinsic value all chickens have. But as she engaged with the world and became “Kuritsa,” the second chicken took on a unique value. The barbarism of butchering Kuritsa derives in part from the boorish snuffing out, obliviousness and disrespect of this delicate and unique web of value. The Survivor did not only kill a chicken – he killed this particular chicken, he killed Kuritsa, which matters in how we evaluate his actions.

You may wonder what does all this have to do with so-called “victim impact statements” (VISs). A victim impact statement is a statement allowing crime victims to speak out during their victimizer’s sentencing or at subsequent parole hearings. It is designed to enable the victims to recount the effect the crime had on their lives. To illustrate, family members of a murder victim may testify as to how they were impacted by the loss of their loved one. Some writers oppose VISs on grounds of equality of respect. They argue that because similar crimes may have a radically different impact (beyond the crime itself) on the victims, giving weight to these differences in sentencing results in devaluating the life of those victims whose death had less impact compared to those victims whose death left a bigger void. In this view, allowing VISs thus fail to equally respect all victims – since a human life is a human life and taking such a life is equally wrong, no matter whose life it is. For instance, the murder of an indigent homeless person is just as wrong as the murder of a beloved family man, despite the fact that the former murder may “impact” others or reduce the value in the world to a lesser extent. Therefore, other things being equal, both murderers deserve the same punishment.

This line of reasoning loses sight of two important aspects of VISs. First, listening to the victim and her loved one’s elaborate on their loss functions as a unique source of information on the full effects and implications of a given crime. If the effects of a crime are relevant at all to its punishment, then victim impact statements are indeed crucial for passing a just sentence. More importantly, truly respecting people requires that one acknowledges people’s individuality. A murder is obviously wrong because it is the wrongful killing of a human being. Yet, a murder is always the murder of a particular person, with a certain name, a life-story, attachments, goals, relationships etc. Treating victims only as generic humans may achieve equality in sentencing but does not achieve respect. Generic respect fails to recognize victims as the individuals they were and to account for the unique role they played in the world; it also overlooks the values they, as the unique persons they were, brought into the lives of others. In many ways, due to their flattening uniforming effect, such equality of respect arguments end up functioning as arguments for disrespect by equal treatment. Those who believe that the criminal law should respect victims should actually welcome VISs.

Posted by Ori Herstein

Leveling Down

After concluding that California's prohibition of same-sex marriage violated the state Constitution, the California Supreme Court had to face the question of whether to remedy the violation by making marriage available to same-sex couples as well as opposite-sex couples or by eliminating marriage for everyone. The Court concluded that the former course would be both (much) less disruptive and what the legislature would prefer. It also suggested---though it did not officially hold---that eliminating marriage for everyone would itself be unconstitutional because marriage is a fundamental right.

Suppose, however, that there is no fundamental constitutional right (under either the federal Constitution or the relevant state constitution) to have the state recognize your relationship with the term "marriage," but that it does deny equal protection (as a matter of either state or federal constitutional law) for the state to call opposite-sex couples "married" but to call same-sex couples "domestic partners." Would there be anything wrong with a state deciding that, rather than extend the term "marriage" to same-sex couples, it will use the term "domestic partnership" for everybody? Such an approach would have one enormous virtue: By using a different term for the state-sanctioned legal relationship formerly known as marriage, it would not mislead people who object on religious grounds to same-sex marriage. Such people would understand that "marriage," as a religious institution, can be limited to opposite-sex couples (if the leadership of a religion wants to so limit it), and the state's recognition of domestic partnerships is something distinct. Meanwhile, there would be no equal protection violation because the State would be giving same-sex couples the exact same recognition as it gives opposite-sex couples.

"Leveling down" in this way---i.e., denying the relevant benefit to everyone---as opposed to leveling up---i.e., expanding the relevant benefit---is generally considered to be a permissible remedy to an equal protection violation. And yet, in this and other contexts, there's something about it that seems inappropriate.

Consider Palmer v. Thompson. In response to a federal court order, the city of Jackson, Mississippi integrated most of its public facilities, but apparently the idea of white and black children and adults swimming in the same pools was, in the 1960s, too much to stomach, and so rather than open the formerly segregated pools to people of all races, the city chose instead to close the pools altogether. Reasoning that blacks and whites were equally disadvantaged by this action, and that there is no substantive right to swim in a public pool, the Supreme Court upheld the city's action.

But the case was close, 5-4, and one of the 5 Justices in the majority, Justice Blackmun, wrote a separate concurrence emphasizing that there was not conclusive evidence that the City of Jackson closed the swimming pools out of antagonism to integration. (He noted that the swimming pools had operated at a deficit for years and there were legitimate budgetary reasons for closing them.) Moreover, some of the reasoning of the majority opinion (by Justice Hugo Black) is plainly inconsistent with other propositions of constitutional law. For example, Justice Black said in Palmer that racial motive, standing alone, is not the basis for an equal protection violation. Yet Washington v. Davis (written by Justice Byron White, who dissented in Palmer) later held that an otherwise innocent law or policy that adversely effects a racial group, is unconstitutional if adopted for the purpose of disadvantaging that group.

It is, of course, possible to reconcile Palmer and Davis: To state an equal protection claim, a plaintiff must allege both a disparate effect and either an express classification or a subjective intent to discriminate. But it's not clear that this reconciliation saves the Davis rule from the critique of subjective purpose that underlies the Palmer rule. The key to Palmer is something like the insight that the courts can't make the city of Jackson keep the swimming pools open forever. Everybody concedes that Jackson could close the pools for a valid reason, and as a practical matter, the courts won't be able to police motive. And the same exact thing can be said about the Davis rule: The city of Washington is allowed to use a test for city jobs that has a disparate impact on minority applicants, so long as it does not do so for discriminatory reasons, and as a practical matter, the courts won't be able to police motive here either. If the argument against looking to subjective motive makes sense in the Palmer context, then it also makes sense in the Davis context.

Yet, in fact, motive tests work well enough in the law, because objective facts usually give rise to reasonably reliable inferences about subjective motives. Yes, if Palmer had been decided the other way, there would have come a time when the City of Jackson could close its swimming pools without that decision being tainted by the prior segregationist motive, but that time (probably) had not yet come when the case was decided.

Likewise, we might conclude that the symbolic meaning of a state's decision to abolish marriage rather than extend it to same-sex couples is institutional homophobia: On this reading, the citizens of the state are so appalled at having their marriages sullied by association with same-sex unions, that they give up the term entirely. If so, then a rule requiring that the state keep the term "marriage" for all domestic partnerships would be appropriate---until such time as dropping the term no longer had that symbolic meaning.

Posted by Mike Dorf

Wednesday, May 21, 2008

Real and Fake Child Pornography

Monday's Supreme Court decision in United States v. Williams upholds against an overbreadth and vagueness challenge the federal Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today ("PROTECT") Act. Herewith, a few observations, beginning with the silly and moving to what I intend as a serious policy proposal.

1) Justice Scalia, who wrote the majority opinion, was apparently unamused by Congress's penchant for titling statutes with an eye towards descriptive acronyms (compare the USAPATRIOT Act). He said that Congress "produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act."

2) The challenged provision of the PROTECT Act forbids offers to provide not only genuine child pornography but also "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains" child pornography, and defines child pornography in detail. It thus criminalizes "pandering" of virtual child pornography, so long as the panderer either believes the child porn is authentic or intends the target of the pandering to think it is authentic, or both. In a 2002 case, Ashcroft v. Free Speech Coalition, the Court had held that Congress could not apply the prohibition on possession of (non-obscene) child pornography to virtual child porn: Because the justification for forbidding child porn possession is the exploitation of children that occurs in producing it, where no real children are exploited, there is no basis for the prohibition, the Court said.

3) Dissenting in Monday's case, Justice Souter (joined by Justice Ginsburg) said that a pandering charge for virtual child porn also outruns the justification for the underlying prohibition. Is he right about that? I'm not sure, but it does strike me that both the majority and the dissent missed an important aspect of the issue.

4) The right question---or at least the right policy question---is what mix of prohibitions will shift demand for child pornography from real child porn (which exploits real children) to virtual child porn (which does not). How might we do that? The answer may depend on the tastes of pedophiles. Suppose, as seems plausible, that pedophiles prefer child porn that they believe shows real rather than virtual children. If so, the law ought to try to trick pedophiles into acquiring what they think is real child porn but is actually virtual child porn, because the latter doesn't harm real children. But the PROTECT Act gives a child porn peddler no incentive to do so. If the child porn peddler sells (or gives away) virtual child porn as though it were real, he is guilty of pandering, so he may as well sell (or give away) real child porn, and will choose to do so if real child porn is cheaper, which the government claims it is. By contrast, absent the PROTECT Act, the peddlers of child porn would risk prison for distributing real child porn but not for distributing virtual child porn as though it were real, and so would have an incentive to spend some extra money for the "safe harbor" of virtual child porn.

5) Although the analysis above leads to a solution that is consistent with the position taken by Justice Souter in dissent, his argument is all about preserving protected speech. I'm suggesting that he missed an opportunity to argue that in this instance the more speech-protective position may also end up being the more child-protective position.

6) Might Congress be interested in this analysis as a policy position? I suspect not. Despite the fact that child porn prohibitions are justified by reference to the exploitation of children that occurs in the creation of child porn, I suspect that many (probably most) legislators also vote for such prohibitions because they find the material disgusting, and I'll admit that I too find the idea of people being sexually aroused by children highly distasteful. But if no actual children are harmed in the making of the child porn and if looking at child porn does not make a pedophile more likely to molest an actual child than he otherwise would be, then the fact that we find the pedophile's tastes disgusting shouldn't be a basis for regulation---at least not when the underlying regulation may actually increase the risks to children.

Posted by Mike Dorf

Tuesday, May 20, 2008

Does the Supreme Court Have an Anti-Chaos Rule?

In a recent post, Mike Dorf (tongue firmly in self-referential cheek) announced "Dorf's Law," which "states that courts do not provide a remedy for really really big constitutional problems where doing so would create chaos." He applied this anti-chaos rule to an argument by my GW Law colleague John Duffy that, if accepted by the courts, could invalidate patents worth hundreds of billions of dollars to their holders. Mike suggested that the Supreme Court regularly faces such possibilities, given that the Court is frequently asked to declare a constitutional principle that could upset years or even centuries of precedent. If, for example, the Court found a constitutional infirmity in the jury selection process, one could imagine such a result leading to a finding that every jury trial in the history of the country was invalid. That would, by any standard, create chaos.

If the anti-chaos rule exists, however, any student of the law would want to know just what constitutes enough chaos to be problematic in the eyes of the Court. Since every decision by the Court will upset some expectation or recalibrate someone's interests in property, etc., when will the Court say that they will set aside what otherwise would seem to be the correct Constitutional interpretation in the interest of not upsetting the status quo too much? If a ruling in an obscure tax case yesterday is any indication, the threshold for unacceptable chaos is surprisingly low.

In Dept. of Revenue of Kentucky v. Davis, a 7-2 majority of the Court held that the Commerce Clause does not prohibit a state from giving a tax preference to its citizens who own that state's bonds over its citizens who own another state's bonds. Put as simply as possible, Kentucky (which, like the great majority of states, has a state income tax that generally imposes a tax on income derived from any source whatever, including interest income) allows its citizens who put some of their savings into bonds issued by Kentucky or its subdivisions to exclude the interest on those bonds from state income tax. (The interest is already exempt from federal income tax, under a longstanding rule that applies to all state and local bonds.) The Davises were Kentucky taxpayers who had invested in other states' bonds and who thus paid Kentucky's income tax on the interest earned on those bonds. As this scheme clearly discriminated against other states, the Davises claimed that this violated the "negative" version of the Commerce Clause. The Kentucky Court of Appeals agreed, but the U.S. Supreme Court reversed.

In the context of the above discussion of an anti-chaos rule, the interesting aspect of the Court's ruling is its clear reliance on the idea that a contrary holding would be too disruptive to the world as we know it. Linda Greenhouse's article about the case in today's New York Times carries the sub-headline: "Supreme Court Votes 7 to 2 for Status Quo." As Greenhouse noted, every other state had signed onto an amicus brief urging the Court to uphold the tax preference, and the opinion "cited the states' unanimity as evidence of the enormity of what the court was being asked by the plaintiffs to do." The opinion rejects the idea that it was "being invited merely to tinker with details of a tax scheme; we are being asked to apply a federal rule to throw out the system of financing municipal improvements throughout most of the United States."

Strikingly, the evidence that this would create chaos is both completely lacking in the opinion and incredibly weak in any case. As Justice Kennedy argued in dissent, the states' unanimity in arguing for continuation of the preference is evidence that states want to continue to discriminate against outsiders, not that preventing them from doing so would be chaotic. Moreover, at least if applied prospectively, a ruling in favor of the Davises would be the kind of thing that financial markets are actually quite good at handling. The very size of the municipal bond market (over a trillion dollars), rather than increasing the risks of chaos, would serve to reduce or even eliminate it. Each person would be able to recalculate the returns from various bonds, and portfolios would be reshuffled. The idea that the market would collapse into chaos, though, is hard to swallow -- particularly because the ruling would mean that every state would be simultaneously required to eliminate its tax preferences. Subsequently, each state would need to determine whether it is raising more or less money in bonds and whether it is paying higher or lower interest rates, and it would have to determine whether there are better ways to subsidize local projects. Again, though, this is the bread and butter of local public finance. The real implications for states would play out over years, not overnight.

Whether or not the Court is right, though, that there is a grave risk of chaos, their ruling states pretty explicitly that the perceived risk of chaos trumps any Commerce Clause concerns. In other words, the anti-chaos rule seems to be a background Constitutional principle that trumps all other Constitutional principles. As a tax policy scholar and not a constitutional law professor, I'll leave for others a discussion of whether that is a good idea or a bad idea (or even all that surprising). I do, however, think that it would at least behoove the Supreme Court to hold litigants to higher (and more explicit) standards of what constitutes unacceptable levels of potential chaos. Without that, every case could ultimately come down to the Court's answering the following question: "Sure, this is unconstitutional; but dare we say so?" That may or may not be a prudent judicial approach, but at least as applied in Davis, it appears to have no coherent standards of evidence or proof.

Posted by Neil H. Buchanan

Sunday, May 18, 2008

Do Prohibitions on Same-Sex Marriage Amount to Sex Discrimination?

My latest FindLaw column sets out the core argument of the California Supreme Court in the Marriage Cases, speculates about the consequences, and defends the result. Because the column is short and the decision is (unnecessarily) long, I don't address everything in the opinions. Here I want to consider one feature of the case: En route to finding that restricting marriage to opposite-sex couples constitutes impermissible discrimination on the basis of sexual orientation, the California Supreme Court says it does not constitute sex discrimination. Herewith, a few observations about this point:

1) It's odd that the Court even addressed the argument, because it is so obviously irrelevant to the ruling. Having found two independent doctrinal grounds for subjecting the marriage law to strict scrutiny---denial of the fundamental right to marriage and discrimination on the basis of sexual orientation---the Court could have simply said that it did not need to reach the question of whether the law was also a form of impermissible sex discrimination. Yet the Court's conclusion that opposite-sex-only marriage is not sex discrimination can now be invoked by opponents of same-sex marriage in other jurisdictions, who will say something like: Even the super-liberal California Supreme Court did not think that sexual orientation discrimination counts as sex discrimination, so it clearly should be understood differently here as well. And in some of the jurisdictions in which this argument is advanced, the notions that marriage is a fundamental right and that sexual orientation is a suspect classification will not be available. Defeat of the argument that sexual orientation discrimination = sex discrimination may not have mattered in this case, but it could be crucial in another jurisdiction.

2) The idea that same-sex marriage restrictions should be struck down as a form of sex discrimination is often called "the Loving analogy," because it rests on a logic drawn from Loving v. Virginia, the U.S. Supreme Court case invalidating Virginia's anti-miscegenation law. It goes like this: If telling a black man that he can't marry a white woman because their races differ is race discrimination, then telling a man that he can't marry a man because their sexes are the same is sex discrimination. The California Supreme Court relied on its own decision invalidating an anti-miscegenation law, Perez v. Sharp (1948), for the proposition that the fundamental right to marry is not limited by its precise history, but the Court rejected the Loving analogy in its standard form: Anti-miscegenation laws express the social meaning of white supremacy, the Court said, but same-sex marriage prohibitions are not an expression of patriarchy (or some other form of sex/gender subordination).

3) There is pretty clearly a sense in which the California Court is right, but that sense does not (or should not) exhaust the scope of equal protection. Although the particular law at issue in Loving was clearly an expression of white supremacy, imagine a case in which it were not. Suppose a state forbade interracial marriage on aesthetic grounds alone. Wouldn't we still want to say that such a law constitutes race discrimination? And wouldn't that conclusion be independent of the fact that marriage is a fundamental right? Surely a law forbidding interracial bowling is an instance of race discrimination, even though there is no fundamental right to bowl and even if the law were in fact adopted for reasons having nothing to do with claims about the superiority or inferiority of various races.

4) What's really going on---and the California Supreme Court opinion gestures incompletely in this direction---is that the California Court is much less formalist than the U.S. Supreme Court. Here's what the California Supreme Court said last week:
a statute that treats a couple differently based upon whether the couple consists of persons of the same race or of different races generally reflects a policy disapproving of the integration or close relationship of individuals of different races in the setting in question, and as such properly is viewed as embodying an instance of racial discrimination . . . . [I]n realistic terms, a statute or policy that treats same-sex couples differently from opposite-sex couples, or that treats individuals who are sexually attracted to persons of the same gender differently from individuals who are sexually attracted to persons of the opposite gender, does not treat an individual man or an individual woman differently because of his or her gender but rather accords differential treatment because of the individual’s sexual orientation.
The California Court is, in this passage and throughout the relevant section of the majority opinion, rejecting the sort of formalism one sees in the U.S. Supreme Court, in which the relevant threshold question for applying heightened scrutiny is whether the government has used a suspect or quasi-suspect CLASSIFICATION. Understood in those terms---what the California Supreme Court called a "semantic" argument with some appeal---laws forbidding same-sex marriage unquestionably do constitute sex discrimination.

5) Accordingly, we have an answer to the problem I identified above in 1). A jurisdiction can justifiably reject the Loving analogy only if it more generally rejects formalism in its equal protection jurisprudence. Thus, a state high court that applies the same exacting scrutiny to affirmative action programs as to programs that disadvantage traditionally disadvantaged groups---i.e., a state high court that practices equal protection formalism with respect to affirmative action---should not be able to reject the formalism of the Loving analogy. In other words, the liberal California Supreme Court could reject the Loving analogy because of its commitment to a vision of substantive equality. A more conservative state high court, with a more formal vision of equality, should accept the Loving analogy.

Not that I'm naive enough to think that this will happen.

Posted by Mike Dorf

Saturday, May 17, 2008

Out of Gitmo and Into Legal Limbo?

Under the headline, "U.S. Planning Big New Prison in Afghanistan," the NY Times reported today that, well, the U.S. is planning a big new prison in Afghanistan. The prison would hold Taliban an al Qaeda fighters from Afghanistan and elsewhere. It also could be use to hold prisoners now at Gitmo, should the U.S. close the prison there. According to a Pentagon spokesperson quoted in the story: "The driving factor behind this is to ensure that in all instances we are giving the highest standards of treatment and care.”

Perhaps, but let me suggest another possibility: If the government loses the Boumediene case, and the Supreme Court holds that Gitmo detainees are constitutionally entitled to habeas corpus because of the de facto sovereignty the U.S. exercises over Gitmo, the only way for the government to hold foreign captives without risking interference by a civilian court would be to hold them in a facility that is unambiguously located in the territory of a foreign sovereign. Hmmm.

Posted by Mike Dorf

Thursday, May 15, 2008

The California Ruling and the Presidential Election

A few hours ago, the California Supreme Court ruled that the California Constitution protects the right of same-sex couples to marry. I haven't read the entire opinion yet, but it's crystal clear from what I have read that the Court relied only on the California Constitution, and not the U.S. Constitution. Because state high courts are the final authority on the meaning of state law---including state constitutional law---there is no way this case will go to the U.S. Supreme Court. The federal issues it raises involve what respect other states will owe California same-sex marriages (in light of the federal Defense of Marriage Act and the Full Faith & Credit Clause of the federal Constitution's Article IV), but those issues are not present in this case, and are no different from the ones raised by the Massachusetts ruling in Goodridge in 2003.

Apparently one can't (yet) be a serious candidate for President and say that one thinks same-sex marriage should be legal, but I'm not running for any office and so I'll say it here. Indeed, I'll go further and say that the Equal Protection Clause of the Fourteenth Amendment, best understood, forbids states from denying same-sex couples the right to marry for the same sorts of reasons that it forbids states from denying inter-racial couples the right to marry. As far as I'm concerned, the arguments advanced against same-sex marriage conflate religious and civil recognition of marriage or rely on ugly and false stereotypes of gay, lesbian and transgendered persons. The best that can be said for these arguments is that they typically are not arguments at all but stipulations: "Marriage is defined as the union of a man and woman" is no more an argument than is "marriage is defined as the union of a man and woman of the same race." It's the very definition that equality proponents challenge, and so reasserting it doesn't meet the objections.

Nonetheless, many hard-working Americans apparently disagree with me and the rest of the egghead class on this point, and that itself might be a reason for courts to go slow. Justice delayed may be justice denied, but justice rushed could be backlash accelerated. A state or U.S. Supreme Court Justice who said something like the following would be making a respectable point: "In my view, it's clear that prohibitions on same-sex marriage violate core principles of equality, but my conception of equality must be informed by the people living in the society around me, and those people are comfortable with discriminating on the basis of sexual orientation with respect to marriage." I'm not saying I would agree with such a ruling. I wouldn't. But it would be vastly preferable to an opinion actually rationalizing laws that deny the right to marry to same-sex couples. (Having skimmed the dissent in today's case, I can say that it's somewhere in between.)

But I digress. It would be more than a shame if the American people again became enflamed by this issue again, which may explain the Democratic strategy of waffling. Here's what Senator Obama said when he voted against a proposed constitutional amendment banning same-sex marriage:
I personally believe that marriage is between a man and a woman. But I also agree with most Americans, including Vice President Cheney and over 2,000 religious leaders of all different beliefs, that decisions about marriage should be left to the states as they always have been.
That was actually the same position that Senator McCain took: It's up to the states. He said:
The constitutional amendment we're debating today strikes me as antithetical in
every way to the core philosophy of Republicans. . . . It usurps from the states a fundamental authority they have always possessed and imposes a federal remedy for a problem that most states do not believe confronts them.
Let's see how long this consensus that the definition of marriage is a matter for state law lasts.

Posted by Mike Dorf


It's easy to read too much into the news that Earthlink will pull the plug on its Philadelphia WiFi network, once heralded as the future of internet connectivity. Free marketeers will say that this failed experiment shows the folly of government efforts to pick winning technologies. And they'll be wrong---or at least they'll be overstating their case greatly. In a great many areas, the government provides (either free or on a subsidized basis) the infrastructure on top of which private enterprise runs: roads, sewers, sanitation, fire protection and many other services can be---and at various times in various places have been---privately provided, but national, state and local provision of such services have also been extraordinarily successful.

All technologies eventually become outdated. The Roman aqueducts were a marvel of public engineering. The fact that modern cities typically use underground pipes as a means of obtaining their water hardly shows that the Romans made an unwise investment in aqueducts. Likewise, if, in a future as envisioned by Gene Roddenberry, teleportation replaces ground transportation as the principal means of travel on Earth, that will not mean that the orphaned roads will have been a failure. It will only mean that their time has passed.

The problem with municipal WiFi, by contrast, seems to be that its time never was. Limitations of the technology made it suboptimal. But that need not remain true forever. In the long run, wireless communications---whether bouncing off satellites or terrestrial relay stations---has at least one enormous advantage over any technology that requires hard-wiring: mobility. Just ask anybody under the age of 30 for his or her "home telephone number" for confirmation of this fact: Although land lines still deliver much higher quality sound, Generations Y and Z rely almost exclusively on mobile phones.

The free marketeers have a point, of course: In periods of rapid technological change, neither the government nor any single individual or firm can be counted on to successfully pick winners and losers. The problem with municipal WiFi was not that the government acted but that it acted too soon, before it became clear what the best means for connecting people to the Net was. Ten years from now, however, municipal, statewide or even national wireless internet service provision may be a much better bet.

Posted by Mike Dorf

Wednesday, May 14, 2008

Genes and Denial

My latest FindLaw column is about the Genetic Information Nondiscrimination Act (or "GINA"), which has passed both the House and the Senate, nearly unanimously, and now awaits the President's likely signature. In the column I discuss how unusually uncontroversial a path this legislation has taken by comparison to other nondiscrimination measures in the past. I propose that GINA places us in the position that John Rawls proposed for the creation of just rules: behind a veil of ignorance.

In this post, however, I want to focus on a different aspect of discrimination that is difficult to defeat: the role of denial. When healthy, wealthy, and wise people choose to spend their time with other people who are similarly blessed, they may do so in part to deny the reality of their own vulnerability to hardship and misfortune. Confronting the reality -- by being around people who have suffered -- makes more challenging the belief that everything works out for the best or that we will not have to face such painful circumstances. In a sense, such denial is a necessary component of survival -- if we were to feel a constant awareness of all that could go wrong and all of our vulnerabilities, we might feel too depressed to function. To the extent that seeing or spending time around the reality of suffering makes a healthy denial more difficult to sustain, we prefer to render the unpalatable reality invisible, often through discrimination.

Taking out insurance is, of course, to some degree, a crack in the foundation of denial. If we were truly sure that "that couldn't happen to us," then few people would want to spend their money on insurance. Yet most of us want to have insurance of all kinds and thereby evidence our covert recognition of realities that we otherwise choose to ignore. Interestingly, research suggests that some people construct insurance, irrationally, as a way to ward off the possibility of the undesired event occurring.

In the case of our genetic information, we aid in our own denial project by failing to be tested for genetic conditions. Yet at the same time, we tacitly acknowledge that our genes may have a prophecy of misfortune to reveal, by supporting legislation that protects against discrimination on the basis of flaws in our DNA. This raises at least one difficulty for those who have promoted GINA. If we are hoping --as some have said -- that more people will seek genetic testing once they are protected from discrimination on the basis of test results, we may be disappointed when people continue to avoid testing, to fortify their own denial, notwithstanding the legal shield. Many of us, in other words, may choose not to go to the Oracle of genetic information because we truly do not wish to "know ourselves" in all of our vulnerability. In that event, though GINA will have had the salutary effect of protecting people from an invidious (though financially quite rational) form of discrimination, it will not and perhaps cannot make us seek out the genetic information that could dash all of our hopes and dreams of invincibility.

Posted by Sherry Colb

Tuesday, May 13, 2008

Justices Scalia and Thomas Go to the Mat

Yesterday's largely inconsequential Supreme Court decision in Gonzalez v. United States confirms (once again) that Justices Scalia and Thomas are not simply conservatives. Each one has what we might describe as a Hillary Clinton-esque willingness to fight every conceivable battle as though it were Armageddon.

In a 1989 case, Gomez v. United States, the Supreme Court held that the Federal Magistrates Act did not permit a magistrate (rather than a life-tenured Article III judge) to preside over jury selection ("voir dire") in a federal felony case, absent the defendant's consent. Two years later, in Peretz v. United States, the Court held that the Act and the Constitution do permit a magistrate to preside over such jury selection if the defendant does consent. Yesterday's case raised the interstitial question of whether the consent necessary to validate the magistrate's role must be obtained directly from the defendant, or whether it is permissible for defense counsel to consent to a magistrate's conduct of jury selection on her client's behalf. Writing for everyone other than Justices Scalia and Thomas, Justice Kennedy said that this was the sort of tactical decision that was in the core of the lawyer's expertise, rather than the sort of "fundamental" issue (such as whether to plead guilty) that must be made by the client.

The stakes in Gonzalez appeared to be pretty darn low. Did the case look more like Gomez or Peretz? One might quibble with the majority's resolution of that question, but surely the issue must rank as fairly unimportant in the vast majority of criminal cases. And yet, to judge from the tone of the two separate critical opinions, one would have thought the sky was falling.

Justice Scalia---who agreed with the majority's resolution of the case---only concurred in the result because Justice Kennedy's opinion used what Justice Scalia regards as a dirty word: "fundamental." Justice Scalia doesn't know how judges are supposed to decide what trial rights are "fundamental" other than by consulting their own consciences, which is, in his book, a no-no, because that's how they decided that contraception and abortion are "fundamental" rights.

With respect, let me suggest that Justice Scalia is taking his own talking points too seriously. I get the objection to the Court recognizing unenumerated rights for purposes of substantive due process. I don't agree, but I understand the worry. But surely if there is any place where federal judges are qualified to "make up" the law, it's when the law consists of procedures to govern criminal trials in federal court. And in this particular case, of course, the majority isn't even blocking legislative action. If Congress wants to stop lawyers from consenting to magistrate-supervised jury selection, it can do so by amending the statute. That's why Justice Scalia concurred in the result, after all.

If Justice Scalia confused yesterday's decision with Roe v. Wade, Justice Thomas showed, once again, why he is the least practical Justice. He thinks that Peretz itself---the case that said a defendant can personally and expressly consent to magistrate-supervised jury selection---was wrong as an interpretation of the Federal Magistrates Act. He nominally acknowledges that if Peretz is wrong, Congress can fix the problem by amending the law, and that therefore stare decisis should be particularly strong in this case. Nevertheless, Justice Thomas thinks that Peretz is so clearly wrong that he cannot follow it.

Why is that impractical? Because stare decisis is a rule that reflects the cooperative nature of judicial decision making. In order for the Court's precedents to create stable, predictable law, they have to bind the members of the Court who disagree with them, at least prima facie, because in any given case, different Justices will have different views about how to decide the matter if everything is up for grabs. Yet Justice Thomas appears to attach very little weight to precedent (a point Justice Scalia often makes in explaining the differences between their respective judicial philosophies). Justice Thomas can get away with treating everything as up for grabs only because he is the only sitting Justice who takes such a view. A Court packed with Justices who gave so little weight to precedent could barely function.

Posted by Mike Dorf

Monday, May 12, 2008

Dreams & Nightmares

As it becomes increasingly clear that Senator Obama will be the Democratic nominee, speculation will focus---as it inevitably does between the primaries and the convention---on who his running mate will be (and who Senator McCain's running mate will be). Obama will be under considerable pressure to offer the slot to Senator Clinton, as a means of healing the rift that the primary contest opened between their supporters.

The arguments against a so-called "Dream Ticket" are strong: 1) Clinton probably doesn't want the VP job; she doesn't need it as a stepping stone to the White House; the best reason for her to take it would be the hope that the ticket would lose in 2008, so that she'd be well positioned for a run in 2012, rather than having to wait until 2016; if so, Clinton might take the slot and not campaign with full vigor, which is a reason not to pick her; 2) Clinton has very high negatives, so that adding her to the ticket would energize Republicans and turn off independents; 3) Part of the argument for Obama is that he can tie McCain to the Bush Iraq war because Obama opposed it early on. Pairing him on the ticket with Clinton undermines Obama's ability to make that argument. 4) Despite the trope of "change" versus "experience," neither Obama nor Clinton (nor McCain for that matter) has any substantial executive experience, which argues for picking a governor. 5) Clinton doesn't help with a potential swing state in the way that, say, Jim Webb might help Obama carry Virginia.

So there you have a whole lot of conventional wisdom. And yet, I wouldn't bet a lot of money against an Obama/Clinton ticket. The traditional role of the VP candidate is attack dog and if the last 6 weeks have proven anything, it's that Hillary Clinton can play that role effectively. Plus, once Clinton fully realizes she's not getting the No. 1 slot on the ticket, she's going to look at the damage she has done to the Democratic Party and herself, and realize that the best way to undo that damage is through a gesture that allows her to claim she was never trying to be racially divisive; she was only pointing to the uncomfortable fact of existing racial divisions; she can then offer herself as a bridge-builder, and potentially bring her supporters along. To be sure, vigorous campaigning by Clinton for an Obama-led ticket that does not include her could also have this effect, but not in as large a degree.

Those are reasons why Clinton might sincerely want to take the VP slot if offered. But what does Obama gain by offering it? Many of the Clinton supporters who have told exit pollsters that they would support McCain in the general if Obama gets the nomination will likely change their minds between now and November, especially those that usually vote Democratic. But some won't, and Clinton's presence on the ticket will bring some of them around. It's also quite likely that the economy will be a more important issue for voters than the war (although obviously they're related; the expenditure of dollars in Iraq limits options at home). An Obama/Clinton team could be very effective on economic issues.

There is also the Rovian truth. Turdblossom showed that you can win general elections by doing just enough to stay viable for independents while massively mobilizing your base. I have a hard time believing that an Obama/Clinton ticket would not lead to huge voter turnout for Dems---especially given its historic nature. True, it will also inspire Republican turnout, but given the way turnout has been going in the primaries (even when the Republicans still had a live contest), and given the fundamentals, turnout has to favor the Democrats.

Bottom Line: I have no idea whom Obama will name as his running mate, but I no longer think the "Dream Ticket" is a crazy idea. The bigger Hillary's victory in West Virginia, the more likely it becomes, so long as she stays in her more restrained mode of campaigning (i.e., directs her fire at McCain). Of course, I'm a lawyer and law professor, not a politico, so what do I know?

Posted by Mike Dorf

Sunday, May 11, 2008

Was the Long Primary Fight Inevitable?

With press coverage of the Democratic presidential intramurals (finally) recognizing the impossibility of a Clinton nomination, the post mortems have begun in earnest. Today's New York Times Week in Review section includes a discussion of the argument that this will all turn out to have been good for Obama, by ____ (fill in the blank with: toughening him up, forcing him to be more of a populist, etc.). A friend, however, recently sent me an email suggesting a more fundamental question about the nominating process: "Did the Democrats set up a situation that couldn't be resolved until very late in the primary season?"

The arguments for this conclusion are pretty convincing. The Republican primaries and caucuses were to a large degree winner-take-all, while the Democrats use a system of proportional representation all but guaranteeing that multiple candidates will receive at least some delegates. In addition, the winner of the popular vote in some states receives less than his or her proportional share of delegates. (The oddest of these was Texas, with its "primacaucus" hybrid, by which Obama ended up with a majority of the delegates even though Clinton was the winner of the popular vote in the early March primary.) That alone suggests that getting to over 50% in delegate count probably could not happen until quite late in the process. Add in the mysteries of the superdelegates and the Michigan and Florida messes, and you seem to have a recipe that assures a long process with no clear winner.

Why, then, was I as surprised as almost everyone else by how long this nominating fight has dragged along?

The easiest answer, of course, is recent history. There has not been a seriously dragged out nominating fight for either party in many years, so people assumed that these battles had been relegated to discussions in political science seminar rooms. There are, however, explanations with a bit more content.

First, the real contest in running for president before the primary season officially begins has become the so-called money primary. Locking up the big donors (and thus the best advisors and consultants, and inevitably the most prominent endorsements) can turn an apparently drawn-out process into a pro forma exercise. Indeed, the entire early Clinton strategy was based on making her candidacy look so formidable that it would be foolish to donate to anyone else. It was all supposed to be over by Super Tuesday.

Note that this script played out almost exactly as planned. The surprises were Obama's emergence and Clinton's refusal to walk away. Had there been no Obama phenomenon, it seems pretty clear that all of the narratives about Edwards's well-meaning-but-quixotic candidacy, Biden's gaffe-in-waiting candidacy, Kucinich's pointless-but-at-least-his-wife-is-good-for-reaction- shots candidacy, etc. would have played out exactly as planned for Clinton. Her ex post disastrous presumption that she could wrap it up by early February would have been confirmed as brilliant political maneuvering. Indeed, as late as early February, I was telling friends that I simply could not see how Clinton could lose, no matter how weak she was turning out to be as a candidate. Like many people, I didn't see the Obama candidacy's popular -- and especially nontraditional financial -- potency.

Once that emerged, I doubt that anyone could have predicted that Clinton would refuse to give up for as long as she has. Like virtually every candidate from both parties in all recent election cycles, Edwards dropped out when the writing was on the wall but well before he had to do so. People have been pointing out for months that Clinton simply did not have a prayer other than to hope for (and to help create) a melt-down of her opponent's candidacy. Hoping for disastrous missteps by front-runners is as American as uncounted ballots, but no one prior to Clinton in '08 ever showed the willingness and ability to keep going for this long.

Finally, I was surprised by the change in voter psychology this year from "go with the winner" to "rally around the underdog." One of the reasons that John Kerry so easily won the nomination in '04 was that he became inevitable after Iowa and New Hampshire. The voters in that year did not fight that idea but ratified it. This year, Clinton managed to find a way to rally surprising support to what had become an impossible candidacy.

In short, I do not think that anyone was wrong to imagine that the nominating process adopted by the Democratic Party would again end quickly and that we would have had a general election season running from early February through November. Although the fight has been ugly along the way, I am happy to have been wrong.

Posted by Neil H. Buchanan

Saturday, May 10, 2008

Gaffes and Journalism

In alphabetical order, here are what I regard as the leading Presidential candidates' leading gaffes (although I don't have a measure for saying what counts as the gaffiest):

Clinton: "Sen. Obama's support among working, hard-working Americans, white Americans, is weakening again."
McCain (singing): "Bomb bomb bomb, bomb bomb Iran."
Obama: "it's not surprising then that they get bitter, they cling to guns or religion . . . ."

I want to begin by acknowledging that there is at least some prima facie reason to pay attention to these sorts of statements---and to these three in particular. Each one suggests that the rap on the candidate is right: Clinton is consciously trying to sell herself as the white Democrat, thus deliberately damaging a coalition at the heart of the Democratic Party; McCain is a hothead who will get us into yet another war; Obama is an egghead who doesn't connect with socially conservative working-class Americans. A gaffe of this sort is thus a kind of Freudian slip. It reveals the candidate's true identity, what he or she really thinks when not staying precisely on message.

To mention two unsuccessful candidacies of the recent and less-recent past, Joe Biden's description of Barack Obama as "clean" and "articulate" betrayed a measure of racism that he will probably never be able to get past, and Jesse Jackson's reference to New York City as "Hymietown" betrayed a measure of anti-Semitism that has limited his mainstream appeal ever since. It is legitimate to report on gaffes for what they reveal about a candidate's character and what that candidate really thinks.

But it's one thing to pay some attention to gaffes. It's quite another to make them a major focus of campaign coverage, as the media have done in this election cycle. I'll bet more people can identify the candidates' gaffes than their proposals on the Iraq war.

It is commonplace to complain about horserace rather than issues-based coverage of political campaigns. Here I want to suggest---and invite discussion on the hypothesis that---the cause of excessive attention to gaffes is the same as the cause of horse-race coverage: In a long campaign, gaffes and primary results are events that can be covered as news, whereas policy positions are not.

That explanation, however, lets professional journalists off the hook too easily. It may be understandable for the evening news to lead with a gaffe story or a horse-race story, but when a journalist has an opportunity to interview a candidate or a campaign spokesperson, the journalist has an opportunity to make policy into news. By asking a candidate how he or she plans to pay for some new spending program, for example, and then asking tough follow-up questions, a good journalist can elicit actual new statements about policy. Of course, to do this effectively requires the journalists to know something about the underlying policy issues, which is a lot harder than asking candidate Y whether he or she was offended by what candidate X said about candidate Z's latest gaffe.

Posted by Mike Dorf

Friday, May 09, 2008

A Counterintuitive Democratic Strategy on the Courts

By now, others have picked apart the substance of Senator McCain's recent speech about the judiciary. (For one particularly good analysis, see Jack Balkin on his eponymous blog.) Here I want to ask what strategy the Democratic candidate should use in combating what is almost certain to be a frequent attack theme from the McCain campaign in the general election: that the Democratic nominee is extremely liberal for having voted against the confirmation of both CJ Roberts and Justice Alito (as both Clinton and Obama did).

The obvious response would be to try to paint McCain as the true radical, both by pointing to actual decisions of Roberts and Alito, and by tying them to Scalia and Thomas (who tend to be regarded by as much further to the right). The Democratic candidate could say something like this:
I believe that it's the job of the President to nominate consensus-building moderates. President Clinton did that with Justices Ginsburg and Breyer, and Republican Presidents have often done that too. I would have gladly supported President Ford's nomination of Justice Stevens, President Reagan's nomination of Justices O'Connor and Kennedy, and the first President Bush's nomination of Justice Souter. But a President should not be given a blank check to name Justices who are at the ideological extremes, even if they have excellent professional credentials, and that's what President George W. Bush. In this regard, as in so many others, Senator McCain offers himself as serving a third term for George W. Bush.
In fact, Obama did say something very much along these lines in an interview on CNN yesterday, and if asked the question directly, perhaps this is the right answer, but I have a nagging feeling that this sort of answer plays into McCain's hands.

Here's why. The base of the Republican party cares much more about the courts (including the Supreme Court) than does the base of the Democratic party, and the vast middle of the country doesn't seem to care at all about the courts (or if they care, it's way below issues like the economy, education, health care, and national security). The base of the Republican party is also suspicious of McCain. Accordingly, a Democratic strategy that attempts to paint McCain's support for Roberts and Alito as far to the right is unlikely to have any substantial impact on voters, except perhaps to persuade the Republican base that perhaps McCain is a reliable conservative after all.

Right now, the Republican base thinks McCain is soft on the courts, as evidenced by his willingness to join the gang of 14 in conditionally renouncing the nuclear option. He gave his recent Wake Forest speech precisely because he hoped to calm their fears. A concerted campaign by Democrats to portray McCain's views on the courts as far to the right would only help him. A better strategy might be to ignore the issue except for mouthing platitudes about how it's important to have an independent judiciary.

Posted by Mike Dorf

Thursday, May 08, 2008

Patent Chaos and "Dorf's Law"

Writing in the NY Times on Tuesday, Adam Liptak reported that, as a result of analysis by GW Law Prof John Duffy, the courts may have to "undo thousands of patent decisions concerning claims worth billions of dollars." Duffy's analysis is excellent, but I want to suggest here that the bigger the problem is, the smaller the problem will be. How's that? Let me explain.

In a little-noticed provision of a 1999 appropriations measure, Congress changed the way that patent judges of the Board of Patent Appeals and Interferences are appointed. As a result, all such administrative judges appointed since 2000 have been named by the Director of the Patent and Trademark Office, but the Director is not the Head of a Department (since he serves under the Commerce Secretary). Thus, these judges were appointed in violation of the Appointments Clause of the Constitution, Art. 2, sec 2, cl. 2. And thus, cases on which they have sat are invalid. Duffy argues that because of the breadth of standing the Supreme Court has permitted in Appointments Clause challenges, and the automatic nature of the remedy, there is no good way for the government to avoid this result---although prospectively, Congress can vest appointment authority of the patent judges in the Commerce Secretary.

I would argue that the government may indeed have a way out, which I'll call "Dorf's Law." Dorf's Law states that courts do not provide a remedy for really really big constitutional problems where doing so would create chaos. One example of Dorf's Law in the United States may be McCleskey v. Kemp, in which the Supreme Court refused to invalidate Georgia's death penalty despite evidence showing with statistical significance that the race of the victim was a determinative factor in whether a defendant was sentenced to death. The Court feared that invalidating the death penalty on this basis would, among other things, require acknowledging that racial considerations pervade the criminal justice system, and the Justices couldn't imagine invalidating the entire criminal justice system. As a result, Justice Powell wrote a majority opinion that is, to put it kindly, innumerate. It says (nonsensically, for anyone who understands statistics) that proof that race infected death penalty decisions in Georgia in general doesn't count as proof that race infected the death penalty decision in any particular case. (This is nonsense because the Court was NOT saying that there is a higher persuasion burden where statistical proof is used, nor was it saying that there was something about McCleskey's case that made it atypical.)

As McCleskey illustrates, it's possible (perhaps likely) that examples of Dorf's Law will not be expressly acknowledged as such. Towards the end of his opinion, Justice Powell does candidly say that the Court can't give McCleskey the relief he wants because doing so would open the floodgates, but he offers this as an "additional concern" that is meant to bolster his decision nominally based on the statistical (non)argument.

My favorite illustration of Dorf's Law is the Supreme Court of Canada's decision in the Manitoba Language Rights Case. Manitoba was obligated to enact all laws in French and English, but from 1890 until 1985, the Province only enacted laws in English. The Supreme Court had little difficulty finding that practice invalid, but balked at the suggestion that as a result, all laws in Manitoba since 1890 were null and void. Such a legal vacuum, the Court said, would itself violate the rule of law. Thus, the Court continued in effect the prior laws for a temporary period while Manitoba translated and re-enacted its laws.

Dorf's Law suggests a legal strategy for the government in the patent imbroglio: Emphasize the utter waste and chaos that would ensue from declaring void all the decisions rendered by the improperly appointed patent judges. The courts (that's the Article III courts that would adjudicate this issue, presumably including, eventually, the U.S. Supreme Court) could either follow the McCleskey route and make up some nonsensical reason why the Appointments Clause isn't really violated, or they could follow the (more honest) Manitoba route and say simply that the remedy is too costly. This is a risky strategy primarily because the chaos that would ensue from invalidating eight years worth of patent decisions isn't quite on the scale of the chaos of having no law at all in an entire Canadian province or no criminal law in the United States.

Still, the Supreme Court did something a lot like this once before in a context that looks quite similar. In Northern Pipeline Co. v. Marathon Pipe Line Co., after finding that bankruptcy courts had been improperly constituted, the Court decided that its ruling only applied prospectively, and gave Congress a few months to fix the problem. In the ensuing years, the Court has ruled out pure prospectivity, but if there's enough at stake, look for something like it to re-emerge in the patent cases.

Posted by Mike Dorf