Thursday, November 27, 2008

Happy Thanksgiving?

As a vegan, I find the Thanksgiving holiday to be full of contradiction. On the one hand, it is a time to gather with family and friends and collectively celebrate our wellbeing and nurture each other in difficult times. It is, in other words, a time to take stock and acknowledge that "there but for the grace of God go I," which is one way to formulate the idea of giving thanks. On the other hand, it is a holiday that is symbolized by the massive slaughter of helpless and innocent creatures who have done nothing to deserve the suffering that they endure. Interestingly, our culture has a strange custom of having an executive official "pardon" one turkey. For a particularly telling scene of Sarah Palin giving a press conference after having "pardoned" and given "amnesty" to one turkey, see this and watch carefully what is happening directly behind the chief executive of Alaska.

I had the privilege of recently visiting a sanctuary for farm animals (a place where turkeys, cows, sheep, chickens, goats, and pigs who have been left for dead after lives of torture are rescued and treated with kindness and compassion). One turkey in particular, Echo, was friendly and allowed me and my family to pat him. Another, Phoenix, was a little more frightened of us but approached and looked into our eyes. The pigs were friendly and bright -- two baby piglets ran around us and acted just like puppies. In meeting these sweet and social animals, I felt thankful that at least they have escaped the fate of the billions of others facing terror, pain, deprivation and finally, slaughter. As Isaac Bashevis Singer wrote:
When a human kills an animal for food, he is neglecting his own hunger for justice. Man prays for mercy, but is unwilling to extend it to others. Why should man then expect mercy from God? It's unfair to expect something that you are not willing to give. It is inconsistent. I can never accept inconsistency or injustice. Even if it comes from God. If there would come a voice from God saying, "I'm against vegetarianism!" I would say, "Well, I am for it!" This is how strongly I feel in this regard.
Posted by Sherry Colb

Wednesday, November 26, 2008

When Options are Coercive

My FindLaw column this week discusses an unusual probation condition imposed by a Texas judge on a woman convicted of injuring her child by omission (by failing to protect her daughter from the father's violence and subsequently failing to seek medical care for resulting injuries). The judge ordered the woman not to conceive and bear a child during her ten years on probation. My column addresses the question whether such a condition violates the probationer's fundamental right to procreate.

In this post, I want to speak more generally about the "alternatives enhance wellbeing" argument that played some role in the judge's assumption that because he could have incarcerated the probationer, it followed that a probation condition limiting her procreation rights must have been constitutionally acceptable. The reasoning takes this form: if I may impose X (e.g. imprisonment) upon you, then it follows that I may offer you the choice of X or Y (e.g. your forgoing procreation).

There are a number of problems with this formulation. One is that there is an important distinction between imposing a (permissible) punishment or burden, on the one hand, and extorting behavior through threats, on the other. The latter triggers desperation on the part of the person offered the choice, and such desperation can lead to compromised and autonomy-violating decision-making. Because imprisonment, even where permissible (itself a presumption that I challenge more directly in my column), is terrifying to people, they may be willing to do or refrain from doing many things that would otherwise fall outside the range of acceptable choices to avoid it. This coercion is different in kind from that entailed in a simple sentence.

Take a very different illustration. Parents of adult children sometimes provide their offspring with financial support and other times refuse to do so. It is within a parent's rights to decide how to handle children's requests for money. What is far less clear is that a parent may legitimately use the promise of money (or the threat of its withholding) to compel adult children to marry a particular partner or shun another. That is, refusing to give one's children money only seems like a greater imposition than an offer to give money if but only if the child breaks off an engagement with a partner of whom the parent disapproves. The adult child's choice of a mate is not the parent's business, even though the decision whether to share money with the adult child is. If we permit a parent to utilize promises and threats of cash to pose alternatives to their children, we are sanctioning a level of manipulation and control that is ugly and destructive, in the guise of expanding a child's alternatives.

A second problem with the "alternatives enhance wellbeing" argument is that it is possible to threaten a lot more "legitimate" harm than one could possibly inflict and thereby to impose burdens by menu that would never be permissible if imposed directly. To be more concrete about it, the State is in a position to threaten many more people with incarceration than it could actually incarcerate (though the numbers on both scores are growing rapidly). Because no one individual can call the State's bluff, though, it is in the interests of each individual to relinquish whatever liberties will permit him or her to remain outside of prison. With the ability to offer such choices, however, the State can now -- for example -- effectively sterilize (by offering sterilization as an alternative to prison) many more people than it could realistically have incarcerated. The notion, then, that the sterilized people are better off than they would otherwise have been is false, because it is premised on the possibility of their having all been incarcerated if they had said "no" to sterilization, and they could not in fact have all been so incarcerated.

As food for thought, I will now suggest that plea-bargaining is an example of the flawed nature of the "alternatives enhance wellbeing" argument. In theory, every person charged with a crime has the right to a trial by jury before he may be punished for the alleged crime. In reality, however, the State lacks the personnel to provide trials for all of the people currently charged with crimes in the U.S. (whether under state or federal law). One response to this state of affairs might be to scrutinize the criminal law and cut it down to cover only those actions which are truly harmful (rather than including what many view as "victimless" activity, such as prostitution or drugs), so that everyone charged with an offense can realistically go to trial. A second -- more familiar -- response to the scarcity of the trial resource, is to offer most people charged with a crime the choice of either going to trial and thus facing an extremely severe potential penalty if found guilty or forgoing a trial and receiving a more lenient sentence. By offering these alternatives, the State enables itself to classify more activities as crimes and to classify already-criminal activities as more serious crimes (subject to more severe punishment) than it could otherwise do (in a universe in which it had to be able to provide actual trials to every defendant who wanted one). Rather than permitting defendants to avoid severe punishment, then, the practice of plea-bargaining in truth may permit the State to impose the penalties that would normally have followed a trial as a "lenient" penalty in exchange for waiver of the right to trial. Effectively, then, the criminal law leverages threats that it cannot truly carry out against everyone to deprive most people of what would otherwise be theirs. This is the alchemy of alternatives.

Posted by Sherry Colb

Tuesday, November 25, 2008

Transition Myths

As the risks from another two months of drift continued to grow over the last week, President-elect Obama was forced to all-but-abandon the notion that there is "only one President at a time." Thus, yesterday he rolled out his economic team. Meanwhile, there is certainly no reason why he could not offer a plan to the lame-duck Congress for it to pass now, effectively daring still-President Bush to veto it. (Obama's arguably premature resignation from his Senate seat makes this marginally more difficult to get through the current Senate.)

The larger point is that the notion of one-President-at-a-time is literally true in general but only important in particular areas: especially in foreign affairs and conduct of the military, where it really would be disruptive to have more than one person acting as President. In part this concern explains why some of Jimmy Carter's post-Presidential peace efforts have been controversial, and why the more common pattern for ex-Presidents is some combination of extremely lucrative after-dinner speaking and uncontroversial charitable works. That said, in many areas, it makes sense for the President-elect to act as a de facto President, especially where the lame-duck President is either unwilling or unable to do anything.

Meanwhile, here's another myth that's circulating these days: It's very hard to undo midnight regulations. As Jamie Colburn noted in an earlier post, there is an extant law, the Congressional Review Act, that provides a ready procedure for Congress to undo agency rules adopted in the last days of a Presidential administration. Moreover, the new heavily Democratic Congress (even assuming the Minnesota and Georgia Senate seats stay Republican) can undo just about any odious regulations it wants to undo simply by passing a law repealing them. The rigorous requirements of the Administrative Procedure Act do not apply to Congress itself, after all, and a later-in-time (or, for that matter, an earlier-in-time) statute prevails over an inconsistent reg.

I say "just about any" rather than "any" reg, because some regulations create property interests in private owners, such that a statute repealing them would amount to a taking of property requiring the federal government to pay just compensation, per the Fifth Amendment. But outside that small category, the obstacles to repeal of a lame-duck Administration's midnight rules are political and practical: a strip-mining company that gets permission to chop off the top of a mountain may do just that before Congress has a chance to repeal the permission. A disturbing number of last-minute Bush regulatory initiatives may have that character, but those that are reversible could be reversed. Perhaps that should be the second bill the new Congress passes, right after the omnibus $800 billion stimulus/green-energy-incentive/health-care-reform/middle-class-tax-cut bill that President Obama signs in the first 10 minutes after he takes the oath of office.

Posted by Mike Dorf

Monday, November 24, 2008

How Quickly Can Social Norms Change?

I have always believed that people are extraordinarily stubborn, that far too often they do not change their attitudes in response to reasoned arguments, and that efforts to get people to become more enlightened are doomed to fail. On the other hand, evidence of progress in social attitudes is all around us. (Bear baiting, anyone?) Upon reflection, therefore, I realize that I have a similarly deep intuitive sense that people's attitudes can be changed both by reasoned arguments and -- perhaps more powerfully -- by social pressure, as changes in attitudes take on a certain momentum.

In an exchange last week, Jamison Colburn (here) and Michael Dorf (here) disagreed strongly about the likelihood of changes in social attitudes regarding veganism, a disagreement which was ultimately revealed to be a difference of opinion about when and how social attitudes can change. In this post, I'll offer a few examples to suggest that Prof. Colburn's hypothesis is only weakly supported by a broad range of evidence.

One of the key questions about veganism is whether it is difficult or easy to be a vegan. In one of my posts over the summer discussing my conversion to veganism, I suggested that it was too difficult to be a vegan in the U.S. today. ("[T]he U.S. economy makes it difficult -- but by no means prohibitive -- to be a vegan.") Four months on, I am happy to report that the learning curve does not take long to climb. The biggest issue for me was simply changing certain mental defaults: not buying M&M's or buttered popcorn at the movies, ordering soy lattes instead of skim lattes, etc. There are still some rather basic policies that could make it easier to be a vegan and that would have the effect of making people less intimidated by the prospect of checking the ingredients in prepared foods, but the good news is that there is now rarely a day when I need to think consciously about these decisions.

The question, however, is not whether people can change their minds, but whether there are identifiable types of ingrained attitudes that are easier to change than others. In a comment on Mike's post, Jamie clarified his "actual point: the closer you get to practical certainty on suffering, the more likely people are to hear you out and decide afresh." Part of the difficulty in assessing this argument lies in whether "practical certainty" means that suffering is "statitistically certain" or rather "certain in the minds of real people" (i.e., salient). Let's think through a few examples of extremely rapid changes in social attitudes that might shed light on this question.

- Domestic Violence: I recently watched a rerun of the 60's sitcom "The Dick Van Dyke Show." The story revolved around a woman who was drawn to a man because he was a mean drunk, bringing out her "maternal" side. The final line of the episode had one character saying to another: "You know what we should do? Go home and hit our wives." Raucous laughter, upbeat theme music, roll credits. It goes without saying that this is shocking to us today. In fact, it would have been shocking only 10-15 years after the show was aired, because of a rapid and widespread public acceptance of a new norm condemning violence against women, changing laws about marital rape, etc. (This fight is still depressingly not yet won, but the changes in attitudes are nothing short of amazing across much of our society.) Is this change in attitudes because of "practical certainty on suffering"? There is no question that the victims of domestic violence are identifiable and that the suffering is certain, but I find it hard to believe that this is the key to the change. The key seems to lie in one's attitudes about whose suffering counts at all as a matter of public concern. Still, this example offers at least some support for Jamie's thesis.

-- Alcohol Use and Drunk Driving: In the late 1980's, I tried to order an iced tea at a bar near Boston. The bartender literally berated me for wasting his time; then he dropped a tea bag in a class of iced water and charged me a dollar. Today, that kind of attitude would cost the guy his job. It took only a few years after that before social attitudes about drinking -- and especially drinking and driving -- changed. Before then, drunk driving was a matter of bravado and joking. ("I was so drunk last night that I was driving home 'by Braille.'") Today, bars and liquor companies sponsor designated driver programs, etc. Is this explained by "practical certainty on suffering"? Again, there is no doubt that people suffer when a drunk driver causes an accident. We are now, however, one step removed, because the now-displaced attitudes about drunk driving were that "I can drive drunk without hurting anyone." Driving drunk may have a statistical certainty of causing suffering, but one cannot explain changes in public attitudes about the harms of drunk driving by reference to this certainty. It might now seem obvious that people equate drunk driving with certain death, but that was definitely not true at the time that the attitudes were changing.

- Smoking: Perhaps the most astonishing change in social attitudes in the last 25 years or so has to do with smoking. When I quit smoking in 1985, smoking was so widely accepted that a non-smoking host was affirmatively expected to have ashtrays in her home to accommodate smokers. Asking a non-smoker not to smoke in one's car elicited a sarcastic retort. Within only a few years, it was a given among the large majority of the American population that smoking is a sign of bad manners at best. Every airport and airplane is smoke-free. More and more cities are adopting laws banning smoking in bars, restaurants, etc.

The change in social attitudes about smoking has been, pardon the pun, breath-taking. Is this because of "practical certainty of suffering"? Again, there is something to this, but this story seems to fit best ex post. There was a lot of resistance to the very idea of second-hand smoke being a health hazard. The driving force in this social change seems to have been more a matter of deciding who had the right to force other people to do what they wanted. This may have been caused by concerns about suffering, but from my perspective it seemed to be more about attitudes toward public cleanliness. Smoking came to be seen as ugly, not dangerous (which people had known even before the surgeon general's report in the 60's).

-- The Environment: Is there a better example of a changed social attitude than the environmental movement? In the late 60's and 70's, it was a big deal to convince people that littering was harmful. Now, widespread recycling is the norm in many areas of the country, people buy and lease hybrid cars that cost more than non-hybrids, and politicians run on green platforms. Even conglomerates regularly run green campaigns. Is this because of the practical certainty of suffering? It's hard to see how. Even those of us who strongly support stronger environmental policies admit that we do not know whether and how much these policies will help. There is at least some possibility that it's already too late, yet people seem willing -- surprisingly so, from a narrow utility-maximizing perspective -- to sacrifice in the name of environmental responsibility. The most impressive change in social attitudes in the last few decades, therefore, is the one that is least directly tied to certain suffering.

Which brings us back to veganism. (I am leaving out other large but less than complete sea changes in social attitudes about homosexuality, gay marriage, etc.) It is true that the step from vegetarianism to veganism involves a recognition of suffering that is not obvious (the necessary connection to torture and killing in the production of veal, the "beaking" of chickens, etc.) The suffering from meat-eating itself, however, is deliberately hidden from our view. The difference is not between the practical certainty that suffering is connected to meat eating and less practical certainty that suffering is connected to dairy products. If, on the other hand, one were to say that practical certainty means "salient certainty," then we're back to the would-be drunk drivers who feel absolutely certain that they will not cause suffering. The step from vegetarianism to veganism, therefore, is not about practical certainty of suffering but of knowledge of that literal certainty.

The big issue is, as Mike characterized it, whether the following statement is true: "That it’s hard to persuade people to change their behavior because they have different perspectives and different life experiences." Change is always difficult. The evidence of the largest changes in social attitudes over the last few decades, however, strongly suggests that social persuasion is a lot more possible than we think. I look forward to the day when meat (and dairy) eating joins bear baiting as a cynical aside -- something so obviously grotesque that we can no longer believe that people ever did it.

-- Posted by Neil H. Buchanan

Saturday, November 22, 2008

Render Unto Caesar

An article in last Wednesday's NY Times highlighted a clash between Islamic courts---which under British law have some authority in matters of divorce, inheritance, etc.---and secular sensibilities of liberal and conservative Brits alike. The worry, a constant theme in debates over multiculturalism, is that in devolving power to minority religious communities, the larger society authorizes sexist and otherwise objectionable practices. Here I want to put that concern in a larger frame, partly by way of putting down a marker for a future more ambitious and scholarly treatment of the issue.

My claim is that in a number of contexts generally thought to be unrelated, there exists the following phenomenon: A and B are interacting legal regimes, each claiming some authority to make binding norms for some of the same people; A claims that in cases of clear conflict with B, A prevails; B claims that in cases of clear conflict, B prevails; although this looks like a recipe for eventual all-out conflict, A and B can co-exist indefinitely through a variety of mediating mechanisms. Here are a few examples:

1) A is the state; B is religion. The state gives people freedom of religion, but only up to the point of not violating either any laws or its most important laws. (The difference depends on whether the state has a rule, like that of the U.S. Supreme Court's interpretation of the free exercise clause, that denies religion-based exemptions to generally applicable secular laws. But even if the state has an exemption regime, it will not grant all possible exemptions. For example, parents will typically be forbidden from denying their children life-saving transfusions, even if transfusions are deemed terribly sinful.) Meanwhile, as in the old Hebrew National hot dog ads, religion will conceive of itself as a "higher authority," and may command disobedience with secular law in cases of conflict over fundamental matters.

2) A is international law; B is the United States. Most international lawyers conceive of international law as "higher" than the domestic law of nation-states. In the U.S., however, to the extent that international law is operative, that is because it is incorporated either through treaty or through the Paquete Habana's principle that "International law is part of our law," but in either case, international law only operates to the extent that it is consistent with the U.S. Constitution and is not superseded by subsequently enacted legislation.

3) A is the European Union; B is a member state of the EU. The EU treats its own norms as supreme over those of its member states. Those member states treat fundamental constitutional rights (and arguably all national constitutional provisions) as supreme over the EU obligations, which only have the status of a treaty.

I believe that in these and other contexts, A and B typically find a modus vivendi or else come to blows. For the extended academic treatment of this topic (to which I won't be able to turn for a number of months, alas), I am interested in cataloguing the mechanisms of accommodation. I am also interested in asking whether there are hidden mutual advantages to this form of seemingly unstable legal pluralism. For now, though, I'd like to collect examples. Thus I call upon readers to send me, preferably by comments (so others can consider and refine) further examples.

Posted by Mike Dorf

Friday, November 21, 2008

The Gentle Art of Persuasion

I disagree with nearly everything Jamie said in yesterday's post on persuasion. Let's begin with the main point: That it’s hard to persuade people to change their behavior because they have different perspectives and different life experiences. Hard, yes, but hardly impossible. Persuading people is what successful movements for social justice accomplish. We are in the midst of a pretty dramatic one in the way people think about sexual orientation, which is markedly different from how people thought just 20 years ago and certainly 50 years ago.

So perhaps what Jamie means is that it’s hard to persuade people to make sacrifices for others, especially others with whom they feel no particular kinship. After all, despite the rhetoric of “protecting” marriage, according fully equal rights to members of the LGBT community doesn’t really cost straight people anything. By contrast, getting people to give up steak and even pizza? Now that’s a sacrifice!

Well, yes and no. If we assume that people only act out of self-interest, then veganism or something like it can be sold based on its health benefits. And I certainly agree, indeed I’ve said on this blog, that organizations like Farm Sanctuary ought to be devoting much of their budget to marketing attractive vegan alternatives to meat and dairy products.

But Jamie apparently goes further to suggest that one will encounter moral opposition to pleas about suffering, and here he simply errs. To wit:

1) Jamie wonders whether demand for soy as food might accelerate the conversion of Brazilian rain forest to agriculture. He cannot be serious. To produce feed for beef or dairy cattle requires orders of magnitude more land for cultivation than is required to produce vegetable products for direct human consumption. And that is simply a matter of calories per acre under cultivation. Raising beef and dairy cattle also produces vast quantities of methane gas, which, pound for pound, is much worse for global warming than CO2. Other animal-based food industries (such as pig farming and the raising of chickens for eggs or meat) produce their own environmental problems, to say nothing of the potential for breeding lethal strains of influenza. Even if one had no regard whatsoever for the welfare of non-human animals, the environmental case for a plant-based human diet would be compelling.

2) Jamie asks how we measure the suffering of calves against the suffering of the families of dairy farmers who would lose their livelihood if everyone went vegan. I’ll answer this question momentarily but first let me point out that he has improperly framed it. Am I morally responsible for the suffering of the families of laid off GM auto workers if I decide that instead of buying a new Buick I’m going to ride the bus? If one is a thoroughgoing utilitarian, sure, because thoroughgoing utilitarians do not respect the act/omission distinction. But this is no way to lead your life. It makes you morally complicit in all suffering that you could alleviate by reducing your standard of living to subsistence levels and donating every other penny you have to benefit others. A much more common and sensible way to understand the moral consequences of one’s actions is to ask what are the direct effects of the small number of things you choose to do, not the infinite number of things you choose not to do. By choosing to consume dairy products, you participate in the veal industry.

3) Perhaps I have misread Jamie and what he means to say is only that I’ll have a hard time persuading the marginal dairy farmer that he should become a vegan or that my veganism is, all things considered, morally appropriate. But then we are simply back to the claim that it is hard to persuade people of things that are not in their interest. I don’t doubt that dairy farmers would like there to be a dairy industry, just as I don’t doubt that corn farmers like government subsidies for growing corn. The vast majority of my fellow citizens are not farmers, however, and I thought the point Jamie was making had to do with the effectiveness of moral arguments.

4) Now back to the philosophical question. Jamie says that “Donald Griffin never argued that animal suffering is just like human suffering.” Well, why not? Is there any evidence that the animals with whom we share the same basic biology and neurochemistry have qualitatively different experiences of physical pain and (at least in the case of most vertebrates) emotional distress that we do? Is Jamie appealing to Creationism? Undoubtedly, we humans think we have reason to prefer our own wellbeing, just as parents have actor-relative reasons to prefer the wellbeing of their children to those of other children. I would even concede that this should count for quite a bit on the positive side. Thus, I don’t think we have a moral obligation to provide the sort of education for gorillas and chimps that would enable them to obtain gainful employment; but that hardly means we can prefer our welfare to theirs to the point of affirmatively harming them by, for example, injecting them with H.I.V. I learned yesterday that it may be possible to create a mammoth from preserved DNA. Suppose that 2 million years from now our super-advanced descendants use such a technology to re-create 21st Century humans: Would our suffering count for less than the future beings because they are so much smarter than we are/were?

5) Jamie also asserts: “Every ounce of effort you put into veganism is effort you can’t put into ending the bushmeat trade—unless you’ve somehow found a way to eliminate the opportunity costs that every meaningful action entails.” This is absurd. Veganism is simply eating, an activity we all do every day. Yes, I probably spend a few more minutes in the supermarket than most omnivores because I need to read ingredients lists, and true, I have to buy my belts and shoes online to get good looking synthetic leather. But are these added minutes per month going to interfere in any way with my ability to make an annual donation to the International Primate Protection League? In fact, the sort of person who thinks about the moral consequences of her diet and clothing is likely to be more, not less, concerned with such practices as the hideous bushmeat trade.

One final point about persuasion: With the exception of Jains, very few current vegans were raised that way. I came to this view because I was persuaded by appeals to reason and emotion, which is pretty much how all human decisions are made. (The emotional centers of the brain are essential to decision making.) I do not consider myself an especially moral person. In fact, I can be sort of a jerk. So if persuasion worked on me, it can work on others.

Posted by Mike Dorf

Thursday, November 20, 2008

Quantum of Solace

If we have the power, we ought to alleviate suffering. This is a proposition that unites talk about bailouts, abortion, veganism, whales and sonar, and, indeed, virtually everything on which people disagree and then claim their opponents are in the wrong. Over the years, Dorf on Law has produced compelling arguments about all of the aforementioned (OK—maybe not the whales, but I gave it a shot). But it remains, in my mind, beyond our power to convince people of very much at all about suffering in politics—at least if they aren’t already predisposed to hear you out and decide afresh. Many minds means many disparate calculations about how much suffering, how much power, and the value of action in the uncertain and imperfect world we actually inhabit. Seems trite to say out loud—but the devil is in the details (of persuasion).

Take veganism. It is one step beyond “vegetarianism” properly understood because it also rules dairy products like milk out of one’s diet (among other things). As Neil pointed out in his excellent post on the subject, vegans won’t drink milk at least in part because of the way in which dairy cows are treated: they are kept perpetually pregnant and the calves that result become the very same victims that eating veal creates. The increment of suffering that is caused, at least in an attenuated fashion, by one’s purchasing milk is reason enough not to do so for vegans. But now imagine trying to persuade someone else with that increment. What about the dairy farmers your practice will put out of business, assuming it catches on? What kind of suffering will that cause? Are humans capable of deeper, more affectual suffering than the calves milk-drinkers are torturing? If so, how many farmers out of business would it take to cancel out the small contribution to calf-suffering your drinking milk is causing? A high ratio? A low ratio? Even the pioneers in comparative ethology like Donald Griffin never argued that animal suffering is just like human suffering. Grow up in farm country and watch farmers’ kids live in poverty if you think this isn’t real or causal.

Another objector might calculate that what we really need is a synthetic bovine hormone which induces lactation in non-pregnant cows. Not buying milk will do little on that score. You might better work for stem cell research funding; go to work on Tom Daschle this person concludes. Others would expect that that improved system would still generate some cruelty and question the strategy for that reason.

Still others would (rightly, in my view) worry about the greenhouse gas spikes and other environmental costs of switching lots of rich consumers to an exclusively plant diet. Brazil’s loss of rainforest sped up incredibly as soy and other agricultural commodity prices jumped (deflation does has some advantages, although I haven’t heard anyone predict serious drops in bushel prices yet). Would greater demand for soy-as-food extend such trends? It’s hard to say. Want to alleviate a lot of primate suffering? Stop the bushmeat trade . . . somehow. Every ounce of effort you put into veganism is effort you can’t put into ending the bushmeat trade—unless you’ve somehow found a way to eliminate the opportunity costs that every meaningful action entails.

These kinds of practical conundrums are probably what give us milquetoast (forgive the pun) measures like Proposition 2—which pass by wide margins I might add.

In my experience, the closer you get to practical certainty on suffering averted, the quicker people are to hear you out and decide afresh. Hence the ease with which you can convince someone to go buy something that will make them happier (hence, advertising). Certainty about one’s own person is much easier to come by than certainty about systemic questions and the value of actions in dynamic systems. The suffering people imagine in their own lives from giving up every single animal-based product stunts the ranks of veganism for sure. This makes a lot of arguments about consumer activism into ultimately unsatisfying affairs.

And it is what makes me think that politicking on climate change won’t get us very far as long as it’s consequentialist in nature. There are too many points at which parts of any coalition will predictably peel off (even in good faith) because of the likely suffering of lives in being from making changes with short-term economic consequences. As others have argued at length lately, the future will almost certainly be richer than us, right? (Incidentally, if we can’t quantify so much of what makes Earth Earth, why do we really think this? We are almost certainly leaving the future a biotically impoverished Earth.) Arguments about meaningful action on climate change are too easily bogged down not to think seriously about shifting the political focus to aesthetics, poetics, and other, similar sorts of reasons for action. Our problem going forward on climate change is as much or more about communications and calculations as it is about greed and selfishness. If you’re going to talk about suffering, though, I say be prepared for a fight.

Posted by Jamie Colburn

My First Major Disagreement with President-Elect Obama

As I discussed in a recent post, I have been grimly anticipating the inevitable disappointment that comes after a political victory. Those of us who supported Barack Obama willfully accentuated the positive and eliminated the negative in our minds, and reality will surely come crashing down when the new president becomes post-partisan on an issue that is fundamental to us. The possible nomination of Hillary Clinton to be Secretary of State was, one might argue, Obama's first such mis-step. His call not to punish Joe Lieberman is also a worthy candidate for "first big disappointment."

I am clearly on record on this blog as a severe critic of both Clinton (here and here) and Lieberman (here and here), yet I remain serene. Although I do not understand why people are saying that Hillary Clinton is "overwhelmingly qualified" to be Secretary of State (or anything along those superlative lines), I can at least see the arguments for putting her in that post. Similarly, as much as I was hoping to see Lieberman punished, I completely understand why it makes sense not to do so under the current circumstances.

No, my disagreement with our next president concerns something much more important: a college football playoff. In a recent interview, Obama reportedly said that he favors an eight-team playoff to determine a national champion in the top division of college football. He added: "I don't know any serious fan of college football who has disagreed with me on this." Well, I'm a pretty serious college football fan; and I completely disagree with him on this.

I am not going to argue that this is an issue that the president should leave to others. It is clear that he is not going to make this a high priority item, because he was obviously just having fun spouting off about a subject that comes up regularly in the life of any sports fan. My disagreement is thus not with his sense of priorities, since he seems to have his priorities in order. No, I disagree on the merits. There should not be a playoff system.

Although Obama said that he would balance his proposed three-round playoff by "trim[ming] back on the regular season," that will not happen. Any playoff system will increase the number of games that the best teams play. Every game, especially every high stakes game, brings with it a non-trivial number of serious injuries -- injuries to players who (as a matter of probability) will almost certainly not make a lot of money as professional athletes. Adopting a playoff system thus comes with the certain cost of serious injury each year to a non-trivial number of players. Injuries also become more numerous and more serious as the number of games increases, because the players' bodies are weakened by repeated punishment. Looking at the list of players who are "out of the season" or "out for 6-8 weeks" after each week's games is no less worrisome merely because we've become coarsened to it.

For the same reason, I opposed the addition of a 12th regular season game last season -- on top of the championship games that end the season for the ACC, the SEC, and the Big 12. Add an eight-team playoff, and you'll have two college teams playing 16 games in most years. There is no way that colleges are going to agree not to play regular season games to reduce the number of games that a handful of teams must play. The number of games ratchets upward, not downward.

That is the cost. What of the benefit? We'll know who is the best college football team! So what? As it stands, one team (and sometimes two) can say plausibly that they are the best in the country at the end of the season. We have a very imperfect system that designates a mythical winner. Changing that system so that we have a "winner" in a sense that gives people more of a sense of consensus ("It was decided on the field") is a benefit, I suppose, but it is difficult for me to take that as a serious reason to lengthen the season in an extremely violent sport.

Moreover, this supposed benefit itself comes with its own related cost. One of the most fun aspects of being a sports fan is arguing about things. To this day, I become red-faced when I rant about the 1984 national championship that was awarded to BYU. Miami's championship in the early 90's after they lost to Notre Dame, undefeated Penn State's snub in 1995, and Michigan's shared championship in 1997 all stick in my craw. Total rip-offs. No excuse for the stupidity of those voters!! But hey, that's part of the fun of it. The current system is silly and ad hoc, but so is football (and all sports). Let's yell at each other about it and at least agree not to sacrifice the health of still more young men to satisfy our need for closure.

So, President-Elect Obama, you're wrong. We should not have a college football playoff. You're right to focus on the less interesting stuff, like whether we're going to have an economy next month.

[Note: I held all of the above opinions before my Michigan Wolverines began this terrible season.]

-- Posted by Neil H. Buchanan

Wednesday, November 19, 2008

The Virtue of Previous Generations

In a recent post Neil Buchanan raises the following puzzle:

"We always talk about fiscal policy as being good if it makes future generations better off and bad if it leaves them worse off. . . . [nevertheless] we have very good reason to believe that future generations of Americans (and some others) will enjoy much higher material living standards than we do. Advocating policies that require us to sacrifice today for the benefit of 'our children and grandchildren,' therefore, actually means (on average) advocating a transfer from the relatively poor to the relatively rich."

Assuming this projection of the economic well-being of future generations is correct, how can we explain the strong lingering intuition that we should still try and improve the lot of future generations, even at some expense to us? Here is an initial attempt at a partial explanation.

Buchanan's puzzle is framed in terms of distributive justice (with an egalitarian component), pointing out that adopting a fiscal policy that benefits us at the expense of future generations is just, since even under such circumstances future generations will be much better off than we.

However, distributive justice is not the only framework for explaining moral duties. There are, for example, relationships and roles that generate duties that are supererogatory in terms of distributive justice; duties that do not arise outside such relationships and roles. Such roles and relationships usually involve either a relationship of great dependency or of strong ties. The virtuous mentor, parent, teacher, doctor, superpower, privileged class, employer, grandparent, friend, spouse etc. is the one that at least attempts to benefit those dependent or close to him/her. This often remains the case, even when the beneficiary will most likely do better, down the road, than the benefactor. For example, a teacher who does not help a student to fulfill his or her full potential because that student is destined to surpass the teacher is a less than virtuous teacher. Parents who do not strive to improve the future of their children, because they know that their children are destined to have a better life than they themselves have, are not virtuous parents. Similarly, future generations are often depended on us and may also be "close" to us – for example, the present American generation may have duties towards future generations of Americans; duties that they do not have towards future generations of other nations. Perhaps one partial answer to Buchanan's puzzle is found in this notion of relationship-based virtue.

Posted by Ori Herstein

Tuesday, November 18, 2008

Monkeys Typing

Last Friday's panel on Demystifying Legal Reasoning, by Larry Alexander and Emily Sherwin, about which I posted earlier, was a rollicking good time for all. While all of us commentators had lavish praise for the book, we all also took issue with, among other things, the authors' commitment to speaker's meaning (with Heidi Hurd delivering the most forceful critique on this point). Here I want to pile on.

Proponents of speaker's meaning (including Alexander and Sherwin) are fond of examples of what appear to be comprehensible statements produced mindlessly: a cloud formation that forms the letters C-A-T; the outline of Alfred Hitchcock produced accidentally by the wandering of an insect on the sand; and nearly everyone's favorite, a complete English language sentence (or all the works of Shakespeare) produced by monkeys randomly pounding the keys of typewriters. Intentionalists say that none of these occurrences has any meaning, because none was intended to communicate anything.

This seems self-evidently wrong. Suppose I am staring out the window of my office, trying to remember the name of a particular student. I look up at the sky and see clouds forming the letters T-O-M. "Eureka," I say to myself. "The student's name is Tom." One need not think that God has sent me a message to see that there was not just meaning in the cloud formation, but useful meaning in it, at least for me.

At this point, the intentionalist will typically object that I have supplied the meaning, but this too seems wrong, or at least incomplete. Suppose another student were in my office and, in answer to the question, "Who was your classmate who made that interesting point about the unitary Exeuctive in class today?", the student volunteered, "that was Tom." So far as I'm concerned, my comprehension of the phrase "that was Tom" supplies meaning in just the same way that the cloud letters "T-O-M" in the sky do. In each case, I must decode (spoken or written) English to produce meaning.

Intentionalists are undoubtedly smart enough to realize all of this, and so we are left with the puzzle of how it is that they can think, as Stanley Fish says, that "apart from intention . . . words don't mean anything." In my example, the cloud "T-O-M" obviously did mean something to me, even though I wasn't searching for anybody's intention.

At this point, one is tempted to say that what we have here is a semantic disagreement. Intentionalists want to preserve the word "meaning" for speaker's meaning, whereas people who believe in utterance meaning (and other conceptions of meaning) have a broader view. It's sometimes exasperating to argue with the intentionalists on whether we are using the concept of meaning correctly, but let's concede the point, and use the word "shmeaning" to refer to the broader category, which includes messages attributed by readers even if not intended by the actual author, and even if no message was intended by any author (or speaker).

Then, it seems, the disagreement over whether to adopt speaker's meaning (what the intentionalists would simply call "meaning") or some other account of shmeaning, can be recast as a debate over whose understandings should count in various enterprises. If the enterprise is "being reminded of people's names," then there is no good reason to prefer speaker's meaning to reader's shmeaning because reader's shmeaning can--albeit rarely--remind one of a name, even absent a speaker.

So suppose the enterprise is "figuring out what the law is." The intentionalist move now is to say something like "figuring out what the law is consists, at least in the first instance, of interpretation, and one can only interpret by retrieving speaker's meaning." But this cannot be a claim about language, for as the cloud example shows, there are reasons to prefer reader's shmeaning to speaker's meaning in some contexts. And so the intentionalist must give a reason peculiar to law why speaker's meaning should be preferred. Claims that speaker's meaning is simply the only shmeaning won't cut it.

Might the intentionalist slightly modify his account to say that it holds wherever we are looking for the meaning or shmeaning of an intentionally created text? Clearly not. Suppose that instead of seeing the cloud formation, I looked at my desk and saw a letter signed "T.O.M.," initials used by a friend named Tanya Olivia McDonald. Tanya didn't intend to convey the (sh)meaning "Tom," and I know that fact. Nonetheless, I derive a valuable shmeaning--the name of the student who made the point about the unitary Executive--from what Tanya wrote, even though it was not what she intended.

One can, of course, marshall decent reasons why there are legitimacy problems with courts inferring unintended (sh)meanings from authoritative texts. But those are reasons rooted in normative political theory, not a theory of language. And so, it appears that intentionalism is, at bottom, an attempt to disguise a (not wholly unattractive) normative political theory as an account--indeed, as the only possible account--of language.

Posted by Mike Dorf

Monday, November 17, 2008

The Coming War on Parking Tickets

In my latest FindLaw column (updated link here), I fret about the questionnaire that the Obama transition team is using to screen potential high-ranking Executive appointees. Although I sympathize with the incoming administration's effort to avoid ambushes, I worry that the questionnaire will either result in a too-cautious approach to nominations, or chill excellent potential appointees from even applying.

As one of the many lawyers and law professors to have crossed paths with the President-elect, even to the point of misspelling his first name in the acknowledgments section of my first book (well, he wasn't quite so famous then!), and as a strong supporter of his candidacy, I might be thought to be one of the very large number of people now hoping for a government job. I'm not. I love my current job(s) too much and have only just recently learned all of my new phone numbers.

Thus, my griping about the questionnaire is not a sneaky way to get a job in the Obama administration without having to fill it out. (If it were such a sneaky effort, it would be an incredibly stupid sneaky effort: By calling attention to the fact that the questionnaire looks for too many skeletons in closets, I would be read as flagging skeletons in my own closet. For what it's worth, I don't have any. My skeletons are all out in public, mostly on this blog. But I digress.)

Here I want to suggest one further reason (beyond those in the column, which you should go read now!) why the questionnaire won't even serve its main objective: Political shaming is a moving target. Douglas Ginsburg was undone by marijuana; Zoe Baird's nomination came a cropper over a nanny problem; Bob Livingston lost his shot at being Speaker of the House over marital infidelity; and so on. The point is that one never knows what issue will, all of a sudden, become politically salient. (If you're thinking that everyone knew marital infidelity might be a problem, you're wrong. Throughout the Clinton impeachment, Republicans insisted they were going after the President because of the lying, not the extra-marital sex. And then they nix a Speaker because of an extra-marital affair. Go figure). Given the right set of facts, one could imagine an otherwise highly qualified Cabinet nominee mired in scandal because of unpaid parking tickets. (And for the record, I have none of those either!).

Posted by Mike Dorf

Sunday, November 16, 2008

Juxtaposing Props 8 and 2

Yesterday I briefly spoke at the Ithaca version of one of numerous rallies nationwide to protest California's passage of Prop 8. I began my remarks by questioning the judgment of the rally organizers in inviting an egghead law professor, rather than a firebrand, to lead off the ceremonies, and then offered a bit of encouragement and a bit of strategic advice. On the encouragement side, I noted that less than 6 years ago, there were states in the U.S. where consenting adult same-sex couples could be sent to prison for having sex. The progress made since then is very real. Many mainstream conservatives now favor domestic partnerships that afford all the legal benefits of marriage.

With respect to strategy, I made some remarks that followed up on my recent post about how to think strategically about winning recognition for full equal rights to marry for same-sex couples. In a nutshell, I said that while backlash from proceeding "too quickly" is always possible--as illustrated by Prop 8 itself--these things are hard to predict, and that because the opponents of equality tend not to worry about backlash, perhaps the right approach is to fight fire with fire. I also urged a strategy in which litigation is only a piece, one tied to a movement to pressure politicians and to win over opponents of same-sex marriage.

Here I want to say a few words about the juxtaposition of California's passage of both Prop 8 and Prop 2. The latter will require (when it finally goes into effect in 2015) that farm animals be given enough room to stand up, turn around, and stretch their limbs. Some commentators have suggested that by passing both 8 and 2, Californians sent the message that they care more about farm animals than they care about their LGBT fellow citizens. Although I strongly disagree with Prop 8, this claim is unsupportable. Any person who detained another person (gay, straight or other) under the conditions that Prop 2 allows for the confinement non-human farm animals would be guilty of violating the 13th Amendment and, if following through in the way of said farm animals, murder. Prop 8 does relegate LGBT Californians to the status of second-class citizens, and that is shameful. But farm animals, even after Prop 2, have the legal status of mere things.

There is, it seems to me, a deeper parallel between Props 8 and 2. Both underscore the need for better efforts to change hearts and minds. As I noted in an earlier post, it is possible that same-sex marriage could be restored in California by the state Supreme Court on the ground that Prop 8 was an amendment when it should have been a "revision." Although I think this result not likely, even if it does occur, and even if, as a result, same-sex marriage remains legal in California, until the federal Defense of Marriage Act is repealed and the federal government along with all states recognize same-sex marriage, second-class citizenship will remain. To bring about the change we need on this front will require a strategy aimed at winning the hearts and minds of the sorts of voters who have opposed same-sex marriage.

Likewise with Prop 2. Were I a Californian, I would have voted yes on Prop 2, though with the greatest reluctance. The measure will not go into effect for years, it makes only the most modest changes in the most horrific farming practices, and it could actually be counter-productive, as it will provide false assurance to Californians who might otherwise reduce or cease their consumption of animal products that they are not complicit in cruelty. I nonetheless would have voted yes because defeat of Prop 2 would have been read as a complete rejection of the cause of taking seriously the interests of non-human animals.

That said, I think it was a misallocation of resources for organizations like Farm Sanctuary -- which in its own educational efforts correctly points out that even so-called humane farming practices inflict great suffering on non-human animals. In the view of FS,
California’s passage of Prop 2 has monumental implications for farm animals and is likely to ignite a spark around the country. It has also helped raise the consciousness of millions of people nationwide to the plight of farm animals and helped tear down the veil of deception that the factory farming industry has used for so long to shield consumers from the truth of their cruelties.
Well, I hope that's right, but I have my doubts. I would rather have seen the money that the Humane Society, FS, and other groups spent on Prop 2 devoted to making people aware of the possibility of eating healthy and delicious vegan food (as per this cookbook, say, or this restaurant), and making common cause with environmentalists who know that the production of animal protein for human consumption is a large contributor to global warming.

Finally, one last thought about Prop 8 and Prop 2. I haven't seen any comprehensive data on the subject, but my own experience as a vegan suggests that members of the LGBT community are over-represented in the animal rights movement. Although the demographics of Prop 8 supporters belie any easy assumption that oppressed groups inevitably feel solidarity for one another, to be an out lesbian, gay, bi, or transsexual American is to be willing to stand up to social pressure, and there are few social pressures greater than the ones that say that it is perfectly natural to exploit non-human animals, that eating and wearing animal products is not even a choice, much less a moral choice.

Posted by Mike Dorf

Friday, November 14, 2008

Every One is Sacred

In "Hannah and Her Sisters," Woody Allen's character tells his best friend that, after unsuccessfully attempting to conceive the conventional way, he and his wife "need some sperm." Allen, who has filmed several recent movies in England, was apparently prescient about his neighbors. It appears that England too, needs some sperm. According to this story in Wednesday's NY Times, in 2006, England managed only 307 sperm donors, short of the needed 500.

The problem, it appears, is that since passage of a 2005 law, people born from sperm donors have a right, upon turning 18, to learn the identity of their biological fathers. This has deterred potential donors who no doubt worry about dozens of potential offspring tracking them down years later and each demanding a few quid for a movie. Indeed, they might even worry that the law could change and place some legal responsibility on them for the welfare of the fruit of their loins.

Of course, viewed from the perspective of the offspring, things look different. At the very least, one would want to be apprised of genetically transmittable health problems that the sperm donor encounters after he has made his donation. But presumably that information could be made available to the offspring while maintaining the anonymity of sperm donors, through an intermediary. In a country with a National Health system, sperm donors could be flagged and their health status, but not their identity, could be sent to the mothers of their biological offspring.

Still, a sperm donor's biological child might want more. Most adopted children at some point express curiosity about their biological parents. (In so-called "open" adoptions, that curiosity is satisfied early on.) Upon reaching adulthood, shouldn't the offspring of sperm donors be entitled to try to make contact with their biological fathers if they want to?

One answer to this question might rely on the non-identity problem: As we see, a law granting sperm donors' offspring the right to track down their biological fathers deters their creation in the first place, so it is in the interest of potential offspring of sperm donors not to have a right to learn their biological fathers' identity, as such a right could prevent their very existence!

I am not generally persuaded by invocations of the non-identity problem to defeat legal rights. For example, it is sometimes argued that current societies owe nothing to the descendants of American slaves because, without slavery, current descendants of slaves would not exist. It strikes me that wrongdoers (or those who have benefited from wrongdoing by others) should be estopped from making this sort of argument. But there may be more to the non-identity point in the sperm donation context. (For a somewhat related solution to the non-identity problem in the context of historic injustices, see this paper by Ori Herstein. The GW Law Review Symposium on Intergenerational Justices, about which I blogged about last month and which Neil reprised yesterday, included presentations by Herstein and Sherry Colb that considered the non-identity problem as well.)

Posted by Mike Dorf

Thursday, November 13, 2008

Habeas Porpoise: The Future of NEPA in a Bottle

The lone commenter on my ‘future of NEPA’ posts on Winter v. NRDC suggested that I call the case by this title. So be it. The Court at least had the good graces yesterday not to actively belittle NRDC’s concerns (the effects of very powerful sonar on marine mammals, especially beaked whales). But it did place them squarely behind the urgencies of preparing for war. To quote the first line of the majority opinion (and George Washington): “To be prepared for war is one of the most effectual means of preserving peace.”

And the Court provided a sort of answer to the questions I raised in my posts this summer (and underscored the pith of the commenter’s suggestion). My principal question was this: can we expect nothing more of NEPA in the future than more mudplay from the usual NEPA suspects? If so, shouldn’t that be distressing to all of us? In my view, this icon of conservation in the US is heading in that direction. It is becoming, in cases like Winter, little more than an instrument of delay and obstructionism.

The Court’s answer to my question? Pretty much, at least as long as the usual suspects bring us cases like Winter. The majority (Roberts, Scalia, Thomas, Kennedy, Alito and for most of the way, Breyer & Stevens) resolved Winter by vacating the district court’s preliminary injunction on the traditional three factor test for a PI. Of course, that allowed the majority to reiterate several times that it was not dealing with the underlying merits of the NEPA claims -- a protest that I find disingenuous at best given the fact that the first two factors are obviously about the merits of the underlying claim.

What it came down to for the majority was this: NRDC’s most serious possible injury without a PI enjoining the Navy from its exercises absent a full environmental impact statement would be “harm to an unknown number of marine mammals,” while the Navy’s would be having to “deploy an inadequately trained anti-submarine force[,] thereby jeopardize[ing] the safety of the fleet.” And when that view of your case is backed up by an explicit declaration of the President himself—as this one was—I put your chances of actually protecting whales (or porpoises) at or around the bottom of the ocean.

This summer, I described NEPA as having settled into the following rut:

one of our marquee environmental statutes, NEPA, has made our perennial tension [between minimizing environmental risks and minimizing the costs of doing so to everyday life] harder and harder to resolve because the statute’s normative core—that the federal government should take a hard look at the possible environmental consequences of its “major actions” before taking them—is all too often being muddled up in a tangled web of Executive Branch maneuvering and posturing. It is almost impossible to say whether NEPA analysis in any given case is going to improve a decision or just delay it and make it more costly for the Treasury to fund. NEPA today has arguably become a very different statute because of how our society has evolved since 1970. But it has also (arguably) become the single best form of leverage against a lame duck President who has shown absolutely no leadership on the environmental challenges of our time and who, instead, seems intent on leaving all of these problems to his unfortunate successor.

I argued that what we really need to start hashing out are, for lack of a better word, the meta-ethics of NEPA. I think we have lost our way on what even constitutes a good outcome under NEPA. What is NEPA’s normative point today? In Winter, the Navy had made a deliberate decision not to complete an EIS before its training exercises. It chose instead to complete an “environmental assessment” and a “finding of no significant impact” (FONSI) that included a detailed plan to control the excess risks to marine mammals created in the exercises. The CEQ NEPA guidelines make room for this (increasingly common) approach to the NEPA process. The Navy clearly “stopped” and “thought” about its effects on the marine environment. And, strategically speaking, agencies usually find a path to shortcut out of NEPA when they want to, whether they’re sued or not. The Navy was clearly intent on not completing a full EIS. If NRDC truly had no better pressure point with which to protect the marine mammals, I fear that their lawyers are running out of good ideas.

It’s probably no secret that, in my view, groups like NRDC need to rethink bringing cases like Winter. Winter is now part of a tradition of SCOTUS precedents that has eviscerated NEPA. What’s worse, the damage that’s being done is so incremental that the public won’t grasp its gravity. If an Obama CEQ wishes to improve NEPA (the Obama campaign said it did not), it’s task is being made all the harder in the hyper-litigious environment that is swallowing the statute. Indeed, under general principles of administrative law, the more precedents there are construing NEPA’s legislative text “authoritatively,” the less maneuvering room CEQ will have to rework its guidelines and update NEPA for the 21st century.

Posted by Jamie Colburn

Future Generations, Taxes, and Spending

A few weeks ago, I posted a blog entry describing the symposium hosted on Oct. 23-24 by The George Washington Law Review: "What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century." Now that a few minor events like a presidential election have passed, I wanted to return to the subject matter of the symposium. I'll begin with a description of the panel on fiscal policy, on which I presented my article, "What Do We Owe Future Generations?" In one or more future posts, I hope to do some justice to a number of the other papers presented at the symposium.

My interest in the fundamental question of intergenerational justice arose from being a macroeconomist who studies fiscal policy (deficits, debt, taxes, spending, etc.). We always talk about fiscal policy as being good if it makes future generations better off and bad if it leaves them worse off. A few economists, especially the late (great) Robert Eisner, raised but did not aggressively pursue the question of whether this is a sensible normative baseline, given that we have very good reason to believe that future generations of Americans (and some others) will enjoy much higher material living standards than we do. Advocating policies that require us to sacrifice today for the benefit of "our children and grandchildren," therefore, actually means (on average) advocating a transfer from the relatively poor to the relatively rich.

My paper explores this and many related issues, concluding that concerns about generational justice do NOT support a general policy of fiscal restraint (raising taxes and cutting spending) in the pursuit of raising the incomes of future generations above the levels that they would otherwise be likely to enjoy. I leave open, of course, the possibility -- indeed, the likelihood -- that there are other good reasons to change our policies based on concerns for future generations. The most obvious of these concerns, but by no means the only one, is the environment. Still, it was rather surprising even to me when I found myself concluding that we don't owe future generations a fiscal policy that is less present-oriented. (I should add that my larger normative argument in the article is that the proper analytical framework is not generational at all but rather is a matter of vertical equity. Whenever they live, people at the extremes of wealth and poverty deserve special attention from policymakers.)

Dan Shaviro offered a paper that was partly a response to mine but was mostly devoted to articulating his own interesting related argument. He argued that the problem with current fiscal policy (specifically the large budget deficits forecast into the long-term future) is that they can cause, at worst, a "doomsday scenario" (his words) in which the financial markets melt down and U.S. government debt becomes non-marketable, a la Argentina not too long ago. If those long-term budgetary forecasts are correct, we will need to run fiscal surpluses at some point (requiring tax increases and/or benefit and spending cuts); and Shaviro argued that the time to begin doing so is now.

Nancy Altman offered a comment on my paper that (gently) took me to task for not also asking, "What Do We Owe Previous Generations?" Drawing on her expertise in social insurance, especially the U.S. Social Security program, Altman pointed out that the specter of "greedy seniors" voting in droves to steal their grandchildren's birthrights by inflating retirement benefits is a dangerous myth. She demonstrated that too little is currently being provided to retirees, and she argued that we can afford to do much better by our parents and grandparents. She also pointed out that any long-term fiscal challenge that we face is not a problem with Social Security but a consequence of chronic health care inflation. She noted further that the health care problem is not really about Medicare but about the entire health care system, because even if Medicare were fully funded, the economy cannot survive if health care costs continue to rise at the rates that have been forecast.

Finally, Larry Zelenak responded to my paper by one-upping me a bit. First, he pointed out quite correctly that I had identified another area in which there is no uncontroversial baseline, i.e., that we do not even know whether we owe future generations a standard of living that is higher than ours, equal to ours, or lower than ours. He then raised the possibility that we should affirmatively attempt to decrease future living standards so that they will be equal to our own. This would actually be quite tricky, he said, given that technological progress would otherwise raise living standards over time. (Zelenak also noted that my article undersold the possibility that my normative conclusions about vertical equity could be supported by a standard Rawlsian analysis, which I took to be a very friendly amendment.)

Perhaps the most interesting aspect of this panel was that Shaviro and I at long last found common ground. He and I have been at odds
for many years over questions of fiscal policy. He looks at the forecasts of large "fiscal gaps" and concludes that we should adopt a policy of fiscal restraint as soon as we can. I am skeptical of those forecasts, as I have argued here, and I focus on the good that deficits can do (e.g., here). At this symposium, both Shaviro and I agreed that concerns about future living standards are not relevant to our continuing debate. Scholarly agreement between long-term combatants is a rare thing, and it is worth noting/celebrating such agreement when it happens -- even if, as here, we continue to disagree on other grounds about the best policies going forward. Shaviro still sincerely believes the our fiscal policy must become more contractionary, and I disagree (or, at least, I am profoundly skeptical of the case for such a policy change); but we both agree that "we must do it for the kids and grandkids" is simply not an argument that those who favor fiscal contraction can continue to rely upon.

There is obviously much more to be said about this panel. I am writing a short response piece for the symposium volume (due out next summer). In addition, the symposium included four other panels. Sherry Colb and Mike Dorf wrote the principal papers for two of those panels, so they might want to write here about their experiences at the symposium and the responses that they received. I will offer at least one more post in which I'll discuss issues raised in the other panels.

-- Posted by Neil H. Buchanan

Wednesday, November 12, 2008

Canards and Petards

On Friday, I'll be one of three commentators on a Cornell Law School panel discussing the new book by Larry Alexander and my colleague Emily Sherwin, Demystifying Legal Reasoning. In addition to the authors, the other commentators will be Heidi Hurd and Fred Schauer. The book is organized around the provocative idea that there is nothing distinctive about legal reasoning as such. In common law cases, the authors say, judges either make discretionary decisions based on all-things-considered normative judgments (sometimes accompanied by the promulgation of a rule) or follow rules. In cases involving the interpretation of an authoritative text (including a precedent that has the force of law), courts simply seek the intent of the lawmakers in the same way that in ordinary discourse, people try to discern what other people intend by the words they use. Thus, say the authors, because laypeople know how to do all-things-considered normative reasoning and also know how to makes sense of the utterances of other people, there is nothing distinctive about legal reasoning. They have therefore "demystified" legal reasoning.

There is much to praise in this book, including the fact that while it tackles some quite deep issues in jurisprudence, it is written in a marvelously engaging and accessible way. (It's especially fun to enjoy the inside jokes: Most of the protagonists in the authors' hypothetical examples bear only first names but are nonetheless recognizable as law professor friends of the authors.) I should also say that I have a great deal of sympathy for the framing of the project, especially on the common law side. Indeed, I'd like to think that I scooped Alexander and Sherwin in a FindLaw column back in 2001, in which I opined: "There is no such thing as thinking like a lawyer. There is only clear thinking and confusion."

Nonetheless, I'm not fully sold.  In the common law portion of their book, Alexander and Sherwin want to deny that there is a middle ground between ordinary moral (I would say "normative" but that's a quibble) reasoning and rule following.  Their real target appears to be reasoning by analogy, which, they think, collapses into one or the other: either a court isn't following a rule laid down in prior cases, and can therefore decide what the appropriate similarities and dissimilarities are, or it is.  While I'm happy to agree with the big point that analogical reasoning isn't distinctly "legal," I do think it occupies a middle ground.  Certainly the felt experience of lawyers and judges is that reasoning by analogy constrains, even when it does not fully determine, outcomes.  That perception could be wrong, but then so could the perception that lawmakers (and other speakers) have  mental states called "intentions" that we attach to language, a key assumption of Alexander and Sherwin in their matierals on interpretation of authoritative texts.

Speaking of interpretation of authoritative texts, I'm also dubious about much of what Alexander and Sherwin have to say about this subject. They defend old-fashioned intentionalism against more current views such as textualism and dynamic interpretation. In this regard, the book can be seen as part of a growing backlash that includes, most notably, Stanley Fish.

Alexander and Sherwin (and Fish and others) don't simply say that the best method of interpreting legal texts is to retrieve the meaning intended by the speaker. They claim that this is simply what it means to interpret a legal text. They acknowledge that there may be occasions in which it would be appropriate for legal actors to seek something other than the meaning intended by the lawmaker at the time of enactment, but if so, they say, that is because some external consideration prevails over interpretation (or perhaps because a strategy of seeking something other than the lawmaker's intended meaning will actually do a better job, over the long run, of retrieving the lawmaker's intended meaning) .

In my oral presentation, I'm going to push Alexander and Sherwin on what I regard as their too-easy dismissal of the problem of finding or constructing an intent from a composite body such as a legislature with hundreds of members. To somewhat oversimplify their answer, they say that the law means whatever points of intention upon which the legislators agreed, and that where there is no agreement, there is no law. Because they give mostly hypothetical and simple examples, they do not give a sense of how frequently this will result in a failure of legislation in the real world of long complex statutes.

I'm also going to push the authors on a related point: that legislative codes and constitutions are produced over long stretches of time, with amenders making changes based on their view of what the text means, which is not necessarily what the text meant to the original authors or intervening amenders. Given this inter-temporal collaboration, there are several plausible answers to whose intent should matter, even for an intentionalist: The authors of particular surviving phrases? The most recent authors of any significant amendment? The ratifiers? Etc. Identifying the author, it seems to me, is very much dependent on one's account of legitimate political authority, not just on one's account of language.

I think Alexander and Sherwin accept this last point. (I can ask them if that's what they intended when they wrote the book!) They would say, I think, that their point is simply that if we're interpreting, we want speaker's meaning, but that this fact doesn't answer the separate question of who the speaker is. Still, there are stray passages in the book that do seem to advert to notions of legitimacy that could be read to smuggle notions of political theory into what purports to be an account of language.

But if I'm right that the better reading of Alexander and Sherwin is simply clarificatory, it's not entirely clear what the book's goal is. The clarificatory point would seem to be this: If you're going to do interpretation, you're going to be aiming at retrieving speaker's meaning; if you're retrieving something else---original public meaning, or evolving meaning, say---then you're either relying on a view that is ultimately parasitic on speaker's meaning or you're doing something other than interpretation.

Well, so what? If Justice Scalia's account of the best way to read authoritative texts (textualism) is not properly called interpretation, call it Scalinterpretation. If Judge Posner's account (pragmatism) is not properly called interpretation, call it Posninterpretation. Etc. And anyway, who are Alexander and Sherwin to say how the word "interpretation" can legitimately be used? Their central argument in the second half of the book is that speakers control how their words are used. They repeatedly use the example of "canard," which can mean either a duck or a lie, depending on what the speaker intends. Well, then, why can't "interpretation" mean what Scalia, Posner, or anyone else thinks it should mean to produce the best account of how to give effect to legal texts? We shall see whether this objection hoists Alexander and Sherwin on their own canard.

Posted by Mike Dorf

Tuesday, November 11, 2008

Certiorari Division, Take 2

Last week, I blogged about the forthcoming Cornell Law Review article by Paul Carrington and Roger Cramton, arguing that responsibility for selecting the Supreme Court docket should be reassigned from the Justices (and their law clerks) to a special division within the Supreme Court made up of rotating experienced circuit court judges. As I explained then, there may well be some merit to the proposal, although it's not clear that it would address what Carrington and Cramton believe ails our legal system, namely a too-confident Supreme Court that makes too much constitutional law (whether liberal or conservative). The live proceedings on the topic last week more or less confirmed this analysis, with the two responders making variations on this point (per their written papers).

Here I'd like to pile on with an afterthought to my post yesterday about litigating same-sex marriage issues. There I observed the difficulty that civil rights organizations have in controlling the timing of issues reaching the Supreme Court, because they do not control all the litigants. Some of the comments noted both how successful groups like the Lambda Legal Defense Fund have been at reining in rogue litigants and at getting good arguments before the courts via amicus briefs even if they're not lead counsel. I mostly agree, although I would emphasize that: a) a truly determined litigant will bring a case no matter what the movement lawyers want, and so amicus representation can't stop the case from appearing before the Supremes (or any other court) when the rogue brings it; and b) amicus presentation just isn't a full substitute for being lead counsel, especially if oral argument makes a difference.

But now I want to stress a different point by way of critique of Carrington and Cramton. My original skepticism of their proposal to reassign the Court's control of the docket was that this proposal was irrelevant to the issue that was driving it--what they see as rampant judicial activism. On reflection, I think their proposal may actually undermine their substantive goals here.

Both in their paper and at the panel, Carrington and Cramton repeatedly insisted that they want the Supreme Court to act more like an ordinary "court of law," and less like a constitutional court of the sort one sees in other countries, or as they put it less charitably, a "superlegislature." Discretionary control over the docket, they say, is more characteristic of a superlegislature/constitutional court than a law court. Yet part of what discretionary control over the docket enables is the exercise of what Alexander Bickel famously referred to as "the passive virtues," i.e., the ability to manipulate the docket to avoid deciding socially controversial issues. If you were a Justice who thought that same-sex marriage prohibitions were unconstitutional but you worried that actually holding so would inspire terrible backlash against the Court, same-sex marriage, and the Constitution, your best option might well be to deny certiorari until a clearer social consensus emerged. Under the Carrington and Cramton proposal, however, you can't do that. Applying any plausible criteria, the certiorari division (i.e., the appeals court judges) will say the Supreme Court has to decide a same-sex marriage case if a state or federal appeals court finds a federal constitutional right to same-sex marriage. And this issue is hardly unique. Thus, the Carrington and Cramton proposal will make it more, rather than less, likely that the Supreme Court will put its foot into socially divisive questions.

Posted by Mike Dorf

Monday, November 10, 2008

Does "Actual Innocence" Mean Anything?

My column on FindLaw today discusses the case of District Attorney's Office v. Osborne, on which the United States Supreme Court recently granted certiorari. The Court is set to decide whether a man who has already been convicted of a crime (in Alaska) has the right to access physical evidence from the crime scene to perform a DNA test, at his own expense, which was not technologically available at the time of trial. In the particular case, the man was convicted of a brutal rape and kidnapping, crimes to which he later confessed at a parole hearing, indicating that he had also confessed the truth to his mother. My column addresses the question of why a prosecutor would want to prevent access to physical evidence for DNA testing, when the testing will cost the government nothing and could resolve any residual doubt. I pose a number of possibilities and conclude that it is the psychological phenomenon of "denial" that accounts for a prosecutor's resistance to DNA testing in such a case.

In this post, my goal is to focus on the distinct question of "actual innocence." In Herrera v. Collins, the U.S. Supreme Court faced the question whether executing an innocent person violates the Constitution. The Court did not ultimately reach this question but determined instead that the particular petitioner did not present a strong enough case of innocence to trigger such a right (against execution for innocent people), even if it does exist in some cases.

The right to access physical evidence for newly available DNA testing is, as I say in my column, a preliminary step toward making an "actual innocence" claim for release. In other words, if a trial was fair and an attorney's representation was competent, then the only reason to permit DNA testing is to provide support for a claim that despite the fairness of prior proceedings, an innocent person was convicted of a crime. For such a showing to matter, in turn, requires that "innocence" actually be a basis for concluding that an individual's confinement is unconstitutional.

For Justice Scalia, the notion that it is unconstitutional to execute (or, presumably, to incarcerate) an innocent person is incoherent. The Constitution provides specific procedures to minimize -- to the extent possible -- conviction of innocent people. It does not, however, prohibit the conviction of innocent people. Indeed, how could it? The only way to know whether someone is guilty or innocent is through procedures designed to expose the truth. Once those procedures are made available, according to Justice Scalia, the government has done what it must do.

To some extent, Justice Scalia is right. In any human endeavor, including the trial, conviction and punishment of criminal offenders, error is inevitable. Any system that distinguishes between guilty and innocent will, on occasion, select one of the latter as one of the former. If a system that punishes innocent people sometimes is unconstitutional, then any criminal justice system we might have would be unconstitutional.

Yet Justice Scalia is wrong in another respect. It may well be the case that we cannot entirely rule out the possibility of convicting innocent people, but when the fact of an actually innocent person becomes obvious, it can certainly be said to violate the Constitution to ignore that fact and continue the punishment as though nothing has happened. It should not be necessary to point out to Justice Scalia that the primary purpose of the proceedings to which defendants have a constitutional right is to determine guilt or innocence and that therefore, the conviction of an innocent is a gross injustice, even if no involved actor was at fault. If such an injustice is unknown, then there is little to be done. But if we learn of it, then it should be considered no less a violation of Due Process to keep the innocent person incarcerated than it would be to do so after a jury handed down an acquittal. To deny this is to suggest that there is no truth of the matter -- people who are acquitted after a fair trial are "not guilty" and people are convicted after a fair trial are "guilty."

Yet no one other than the most radical post-modernist truly believes this to be the case. If Osborne in fact was not the man who raped the victim -- if her identification was in error, if the other rapist lied in implicating him, if his confessions were expedient but false -- then he is innocent of the crimes. If he in fact was the man, then he is guilty. The trial is a process by which we attempt (imperfectly) to find out these facts; it does not itself create the truth.

For most people, a fair trial is the most for which they can hope. They cannot simply assert their innocence as a basis for a constitutional objection after a trial, because the jury has already heard that claim, along with the evidence, and rejected it. But if the convict can prove innocence, the courts should be required -- at a minimum -- to stop punishing him. That Justice Scalia would approve of executing such a person is shocking.

I argued many years ago (in an article in the B.U. Law Review) that Justice Scalia was indulging a kind of "denial" when he rejected paternity rights for men whose biological children were conceived in adultery, in Michael H. v. Gerald D.. I suggested that to call the mother's husband the father, despite the child's true origins, was to use a word -- "father" -- to impose rather than to describe reality and thus magically to make paternal uncertainty (a facet of human reproduction) disappear. If Justice Scalia continues to ignore the significance of actual innocence to the law (as I suspect he will in Osborne), he and any other Justices who go along with him will be indulging a similar kind of denial -- imposing a version of reality in which anyone who is convicted after a fair trial is guilty, by definition. Unfortunately, however, saying it does not make it so.

Posted by Sherry Colb

Litigation Strategy Post-Prop 8

Suppose you were the czar of civil rights litigation for the LGBT community in America. What should your strategy be with respect to federal equal protection clause challenges to state laws forbidding same-sex marriage? Here are a few considerations:

1) The first state high court to suggest that laws restricting same-sex marriage deny equal protection on state constitutional grounds was the Hawaii Supreme Court in 1993. The ruling was never implemented, however, because the people of Hawaii overturned the decision by state constitutional amendment, although not before it inspired the odious federal Defense of Marriage Act. Subsequent decisions recognizing either fully equal rights under domestic partnership laws or marriage itself have been coming out of the state courts since then, along with decisions and ballot initiatives going the other way.

2) Given that the issue has been in the courts for over 15 years already, it's quite remarkable that no one has yet successfully brought a federal equal protection claim in some lower court. That's not entirely an accident. The LGBT civil rights community has been assiduously avoiding bringing federal claims precisely for fear that success in a state supreme court or federal appeals court would bring a ruling from the U.S. Supreme Court that finds no right to same-sex marriage. Such a ruling could in turn delay the date when the Court might otherwise recognize a right to same-sex marriage. The theory goes like this: It's harder to overrule a decision saying no same-sex marriage right than to recognize such a right in a case presenting the case de novo.

3) Is that theory accurate? Probably at least a little bit. As a formal matter, stare decisis matters for the Justices. Still, the empirical evidence shows that stare decisis doesn't matter a whole lot. (Indeed, the leading study found that of recent Justices, only Justice Powell seemed to care about stare decisis.) A stare decisis effect could, I suppose, delay the recognition of a right to same-sex marriage by about 5 years, but it must be balanced against the possibility that a federal same-sex marriage case in the Supreme Court could succeed now---which in turn must be balanced against the small but non-trivial possibility that such a success could trigger support for a constitutional amendment specifically banning same-sex marriage.

4) If all these probabilities are giving you a czar-sized headache, consider this additional worry: You can't control who brings the cases. Even if you instruct your minions in the Lambda Legal Defense Fund, the ACLU and the Human Rights Campaign not to bring federal equal protection claims, that's not going to stop Bob the Builder ("Yes We Can") and Joe the Plumber (no, not that Joe the Plumber) from hiring Larry the Lawyer to sue claiming a federal equal protection (and while we're at it, due process) right to marry. Bob and Joe want to get married now, and while they'd prefer not to upset your strategic litigation decisions, they really must put their own future first. If there is a substantial chance that they could succeed by including a federal claim where they would fail with only state claims, they have an incentive to include it, and you have no legal right to stop them.

5) Indeed, the possibility of lousy representation by Larry for Bob and Joe keeps you up at night. If you're going to have the case end up in the Supreme Court anyway, wouldn't you rather be counsel of record than an amicus, with Larry arguing the case? Sure you would (unless you conclude that you WANT to lose in the Supreme Court to prevent the dreaded constitutional amendment). So does that mean you should get ahead of the curve and file a federal test case now, before Bob and Joe (or perhaps representing Bob and Joe yourself)?

These are very tricky questions. Tomorrow I'll follow up with some reflections on what they say about our system of constitutional litigation.

Posted by Mike Dorf