Could There Be a Policy Rationale for Prosecuting Underlings But Not Policymakers?

The criticism of the decision by AG Holder to open an investigation into possible criminal wrongdoing by CIA agents (and contractors) who went beyond the advice of the Justice Dep't in their use of allegedly illegal methods of interrogation has thus far come in two main forms: 1) There has already been a thorough investigation that led to discipline, and so this further investigation is akin to double jeopardy; 2) Distracting the CIA from its mission by "looking back" rather than forward will undermine national security and is, in any event, inconsistent with the Obama Administration's stated desire to turn the page on these matters. This second point is typically accompanied by the claim that Holder cannot be acting truly on his own.

Here I'll raise another point that has gotten some play, but not nearly as much as it probably deserves: The possibly illegal acts--mock executions, threatening detainees families, running a power drill next to a detainee's head, blowing smoke in the face of a detainee--are not clearly worse infringements on human dignity than the acts that were authorized by Justice, including waterboarding, "walling" (i.e., slamming a detainee against the wall), and stress positions. In fact, some of the acts that have newly come to light are pretty clearly not as bad as the ones that were authorized.

That comparison could be used to let the power driller or the smoke blower off the hook. He might have reasoned: "I'd like to threaten to kill this terrorism suspect. Can I do it? I don't know, but it says here I can waterboard him, and merely threatening to kill is not as bad as waterboarding, so it's probably okay." At least it would be probably be open to a jury to consider this sort of argument in a trial.

But for now I'm not primarily interested in the effect of the authorization of worse treatment on the prosecution of the people who engaged in the not-as-bad activities. I'm interested instead in the route by which the Administration came to decide that policy-makers and high-ranking attorneys who decided to authorize waterboarding, walling, and the like should be left alone, while front-line officers who exceeded their authorization in scope but not severity should be subject to possible prosecution. That decision, after all, was made by the President, rather than AG Holder, when the former announced that he would not pursue line officers who conducted their interrogations within the letter of the Justice Dep't authorization.

There is, of course, a political explanation for investigating unknown CIA officers and contractors while leaving the high-ranking Bush Administration architects and legal authorizers of the interrogation policy unmolested. An investigation of former VP Cheney, former Defense Sec'y Rumsfeld, Judge Bybee, et al would be widely perceived as "looking back," and could derail the President's domestic agenda. Or, even more cynically, just as only the likes of Lynndie England and Charles Graner were made to pay for Abu Ghraib, so we might be tempted to view the Obama/Holder policy as continuous with a Bush policy of scapegoating. I'm inclined to the former, political explanation, but the latter could have an element of truth as well.

Might there nonetheless be a principled policy (as opposed to nakedly political) basis for possibly prosecuting the smoke-blower but not the guys that ordered waterboarding? Maybe. One could take the view, I suppose, that all of the nation's legal obligations are merely presumptive obligations, defeasible by a sufficiently compelling justification. If so, one would only want the decision to violate a legal obligation to be made at the very highest level, by policy makers who have access to a wide range of information and at least a bit of time to think through the consequences of their decisions. Front-line officers would then be permitted to carry out the instructions of such policy makers--even if those instructions appear to authorize illegal activity (such as waterboarding)--but would otherwise be held to obey the letter of the law.

The chief difficulty with this Nixonian view (if the President does it, it's not illegal) is that it would entail that Cheney, Rumsfeld, Addington, Bybee, Yoo, Bradbury, et al were actually acting within their authority when they concluded that waterboarding etc was permissible. The Obama Administration has not said that, and I doubt it will. However, absent such an account (or a substitute one) we are left with ONLY the political explanation for the disparity. That likely explains why the Holder decision has not been especially well-received. The right thinks it's unfair to the CIA agents and contractors, as well as possibly contrary to national security interests; the left thinks it's a peculiar decision to go after the small fish while the big fish are at large, and indeed heckling on Fox News.

Posted by Mike Dorf

The Dignity of one Particular Legislator

In his 1999 book, The Dignity of Legislation, Jeremy Waldron offered a deliberately idealized picture of the process of legislation to compete with the idealized pictures of judging that one typically encounters in academic jurisprudence, and to serve as an antidote to the cynical view of legislatures as nothing but places in which log-rolling, deal-making, and the pursuit of special interest prevail. As the title suggests, Waldron aims to develop an account of legislation that explains its dignity, that is, that says why this form of lawmaking commands respect.

I am not wholly sold on Waldron's affirmative project (and I am not at all sold on his negative project, i.e., his spirited critique of judicial review), but I do think that his view serves as a useful counterpoint to the "public choice" view of legislation. To his theoretical exegesis we might add that particular, public-spirited legislators serve as counter-examples to the public-choice model. I would venture that most elected officials spend at least some of their energy pursuing the public good as they understand it. (Not all, I admit.) And some legislators are primarily interested in serving the public good.

It is, of course, natural for politicians to praise a fallen colleague, even one with whom they disagreed on matters of policy. But I regard the nearly universal esteem in which Senator Kennedy was held by the end of his long Senate career as something more: The other Senators had genuine affection for him. Now such affection might have nothing to do with public-spiritedness. A politician concerned only about holding and exercising power, or worse, about rewarding his friends and punishing his enemies, could, nonetheless, be personally popular if he were friendly, jovial, and charming at a personal level. Kennedy may well have been all of those things, but there can be little doubt that he was more. He served those many years in the Senate because he genuinely believed in the causes he championed.

None of this is to deny that there is a certain undemocratic character to the relation between the Kennedy family and political power. Noblesse oblige assumes noblesse, an uncomfortable concept given our national commitment to democracy. At the same time, however, society benefits when the well-off use their money, energy, and influence to advance the causes of the less fortunate. The charge of limousine liberalism has thus always struck me as misdirection. It directs anger at those who advance humane policies that work to their own financial disadvantage, rather than at those who can avoid the charge of hypocrisy only by pursuing their narrowly defined self-interest to the detriment of the greater good.

Posted by Mike Dorf

Podcast of My Discussion of Troy Davis Case

It's now available here. I come on just before halfway into the show. The first half of the show is quite interesting too.

Posted by Mike Dorf

Rationing and Rhetoric

In my FindLaw column this week (posted here), I step away from the public vs. private insurance debate and analyze critics' claims that the Democrats' plans for health care reform will result in "rationing" of medical care. The answer is that there will indeed be rationing, but it will not result from any reform that might be enacted this year. Rationing is a fact of life in every economy, capitalist or otherwise, and it is certainly a part of the health care system that we have today. If by rationing people mean that they might find themselves wanting care and being told that they cannot get it, then that is surely a possibility in any system of medical care that we might adopt -- but it is a cold reality for tens of millions of people today.

Whenever a political debate begins to focus on the definition of a single word, there is always the danger that the word will be defined into oblivion. Thus, years ago during the Carter administration, Andrew Young, an African-American who was U.S. ambassador to the United Nations, created a controversy when he said that former presidents Nixon and Ford were "racists." He then extended that description to all Republicans, including Abraham Lincoln. Even in a pre-cable-news era, this led to loud denunciations and pressure on President Carter to ask for Young's resignation. Within days, Young announced that all he had intended to say was that these men "took race into account" or something like that. In a classic move, he tried to define his gaffe away by draining the word of all meaning.

Is there an analogy to the debate over rationing? While it is true that all health care systems have to ration medical care in one way or another, is there some more narrow definition of rationing that has more bite than merely "some people don't get all they would like"? It is certainly possible to set up rationing systems in ways that do not feel as much like rationing. For those of us who are old enough to remember course registration prior to on-line catalogues, memories of lining up in front of folding tables in gymnasia and lecture halls might not count as nostalgia but certainly defined this time of year for our younger selves. College students today are not being turned away from their desired courses (victims of rationing) any less frequently than before -- in fact, they are probably having a harder time getting into the classes they want, given budget cuts and reduced teaching loads -- but they probably have a better experience in signing up for courses than we had.

In health care, one of the most common attacks on universal plans elsewhere is that people "end up on waiting lists" or "wait in line." That, however, is true today in the American system. We have to wait to have procedures approved for coverage, and many people are required to see a "gatekeeper" before seeing the actual provider who might be able to help them. Moreover, nothing in the current legislation would impose requirements that would make such waiting in line any more literal than is currently the case. Under any proposed reform, being told whether we will receive coverage is no more likely to require sitting in line than before. There will continue to be virtual lines in which we wait, but there is nothing under discussion that would turn our system into more of a big waiting room than it already is.

As I point out in my column, the closest thing that the current proposals have to a "rationing board" -- and this is a pretty long rhetorical stretch -- is the panels of experts that would attempt to determine the effectiveness of various medical procedures. In the nightmare scenario, these panels would decide that some procedure is too expensive or insufficiently effective for large numbers of people, resulting in decisions to deny coverage to individuals who might be helped but who are deemed expendable by the faceless, soulless bureaucrats.

Again, however, that nightmare is already our reality. Those boards exist today, run internally by every health insure company, and they regularly deny coverage to individuals and disapprove coverage of "experimental" medical procedures, etc. Because health care must be rationed, this is inevitable. The worry, backed by substantial evidence, is that these decisions are not being made on the basis of medical effectiveness or even cost-effectiveness in the broader sense but on the basis of short-term profits for the insurer. The proposals to impose scientific review on certain medical procedures and drugs are intended to move health care resources away from the profitable but ineffective interventions that are favored by the current system.

These reforms, if adopted, would surely be imperfect. They would not, however, be any more like rationing -- in either the broadest or the narrowest sense -- than today's system. The debate is not over whether we will do something that will lead to rationing. It is over whether we can ration health care more effectively and humanely.

-- Posted by Neil H. Buchanan

Innocence and Death Penalty on the Radio

Later tonight, I'll be talking about the Davis case on the San Francisco-based call-in show, Live from the Left Coast with Angie Coiro, roughly at 6:30 pm Pacific/9:30 pm East coast this evening. You can listen live at 960 am in SF or over the web.

Update: That was interesting, at least for me. The podcast will be available tomorrow. I'll post a link then.

Meanwhile, the column got picked up by Mark Cuban on his blog. Now the question is how I can cash that in for courtside tickets to the Knicks-Mavs game in Madison Square Garden on Jan. 24!


Posted by Mike Dorf

What if the Evidence of Actual Innocence isn’t New?

In my latest FindLaw column (here), I ask whether the Supreme Court’s order in the Troy Davis case recognizes a constitutional right of an innocent person---whose trial was not infected by a constitutional error---not to be executed. My conclusion: Maybe, depending on what the Court does if and when the case comes back. Here I’ll address an issue I don’t cover in the column: Why, exactly, does the Supreme Court’s order of an evidentiary hearing focus on “whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence?”

First, we need to understand what even counts as new evidence. In Davis, the core argument is that the government’s case relied on witnesses who, under pressure from the police and prosecutors, said that they saw Davis commit the murder but in fact did not. Now, in some sense that evidence could have been obtained at the time of Davis’s trial: The witnesses could have said at that time that they were lying. But presumably the fact that the witnesses were lying about what they saw (or didn’t see) was not the sort of fact that Davis or his lawyers could have reasonably uncovered at the time of trial. Justice Scalia says in dissent that the evidence Davis is proffering is not in fact new, but even he doesn’t appear to think that it was available at TRIAL. He means it’s not new in the sense that it was previously offered as a ground for post-conviction relief. (It was not, however, evaluated by a judge hearing live testimony.) And Justice Stevens, and presumably the Court as a whole, reject even the narrower characterization of the evidence as nothing new.

Second, there is a peculiarity in the wording of the Supreme Court’s order. It says that the district judge should conduct a hearing to determine whether the new evidence itself establishes Davis’s innocence. The most straightforward reading of that language would suggest that the new evidence, STANDING ALONE, must establish innocence. That can’t be what the Court means, or at least I HOPE that’s not what the Court means. After all, in a typical case, the new evidence will need to be weighed along with the evidence that was produced at trial.

Here's a somewhat silly example: Suppose that at trial, defendant says he couldn't have committed the murder because he has an alibi placing him thousands of miles away. However, eyewitnesses and DNA evidence place the defendant at the crime scene, and the alibi is the defendant's girlfriend, who could be disbelieved as biased. Years later, it is discovered that the defendant has an identical twin (from whom he was separated at birth and whose existence was unknown to him). The twin, it turns out, has a long rap sheet. Does the new evidence--of the twin's existence--by itself establish the defendant's innocence? No, but in combination with the defendant's alibi evidence, it should. Accordingly, I think the order in Davis is best read to permit this sort of combination of the new evidence with the trial evidence.

Third, and finally, suppose that the evidence of innocence COULD have been obtained at the time of the trial, but simply WASN'T obtained then. Can the state execute an innocent person then? Once again, I sure hope not, but I think it will depend on whether the failure to obtain the evidence of innocence for trial was due to ineffective assistance of counsel. If such neglect was ineffective assistance, then the prisoner has a valid constitutional claim. Prima facie, he may be barred by AEDPA from presenting that evidence because his petition is successive or the claim has been procedurally defaulted, but a showing of "actual innocence" lifts those bars. So, if the evidence COULD have been obtained at trial but wasn't, the prisoner can use his innocence evidence to get his ineffectiveness claim heard; while if the evidence COULD NOT have been obtained at trial, then the innocence evidence can be presented as a freestanding innocence claim under Herrera and now Davis.

At least that's how it ought to work. There remains the macabre possibility that evidence COULD have been obtained at trial, and so there is no Davis/Herrera claim, but that the failure to obtain the evidence at trial was not so egregious as to rise to the level of ineffective assistance of counsel. If there is any room between the two standards, then the law would allow the execution of a certainly innocent person. I very much doubt that there are 5 votes for THAT proposition, at least once Justice Sotomayor starts participating. Stay tuned!

Posted by Mike Dorf

When Does an AUMF Expire?

With recent polls showing Americans beginning to turn against the war in Afghanistan, and U.S. military leaders saying that the Taliban is gaining, rather than losing strength, the Obama Administration has reason to worry about the possibility of a substantial gap between the troop levels the public will support and the troop levels needed to defeat the insurgency (assuming it can be defeated). These issues of politics and military tactics go beyond my expertise as a constitutional lawyer, although I have views about them as a citizen.

Here I want to raise what is at least partly a legal question: At what point, if any, will the war cease to be legally authorized? There is an international dimension and a domestic dimension to that question. As a matter of international law, the U.S. (joined by NATO allies) justified its attack on the Taliban government of Afghanistan in late 2001 as self-defense in response to 9/11 and the Taliban's refusal to turn over its Al Q'aeda perpetrators. At the time that rationale probably satisfied U.N. Charter Article 51's recognition of the inherent right of individual and collective self-defense.

Even if that justification eventually expires simply via the passage of time, we are still close enough to the original events, and the Taliban and Al Q'aeda still pose a sufficient threat, to warrant a continued troop presence, although this is complicated by at least two factors. First, the continued presence of Western troops in Afghanistan may well be fueling the Taliban insurgency, at least over the long run. Second, from some point after the Taliban was overthrown (shortly after the invasion), Afghanistan has had a friendly government. The original warrant for war does not run against the current government (regardless of which non-Taliban candidate ends up winning the election). But because the current Afghan government welcomes NATO troops, we need not worry too much about whether those troops would be in violation of international law were they to remain against the will of the current government.

So let us turn to domestic law. Here it may be instructive to note that more time has elapsed since Congress enacted the Authorization for Use of Military Force (AUMF) of Sep. 18, 2001, than elapsed between the passage and repeal of the Tonkin Gulf Resolution. President Nixon did not end the war in Vietnam in response to that repeal, but he had at least the fig leaf of an argument: Because the U.S. was slowly drawing down troops, Nixon said that as Commander in Chief, he had the inherent power to ensure their safety in the process. By contrast, if Congress were to repeal the AUMF, President Obama, who is maintaining or increasing troop levels, could not make the same claim.

Of course, Congress is not likely to repeal the AUMF, at least not yet. But the AUMF could eventually expire on its own. Here the considerations are slightly different than in the international sphere. The cause that justified force under UN Charter Article 51 might persist for decades, thus justifying--as a matter of international law--continued troop presence for that long. But domestically, the issue is less a matter of whether military force is justifiable than it is whether the use of military force has received democratic consent. The Constitution places the power to declare War in Congress, the usual account goes, because Congress will not lightly take the country to war. Extrapolating, we might well conclude that at some point the mere passage of time DOES count as vitiating the public consent to war.

Have we reached that point? I don't think so. I also acknowledge that no court is likely to rule on these matters. And while I think it would be best if Congress itself took the initiative to revisit declarations of war (or their equivalents) every few years, there are structural reasons why that won't happen until long after public opinion has turned decisively against a war. (I discussed some of these in 2002 here.)

Finally, and to be clear, I want to reiterate that I do not have a strong view about what the most sensible long-term strategy is with respect to Afghanistan (or Iraq for that matter). I do think that domestic public opinion--and thus our system of checks and balances--could eventually constrain the available options quite severely.

Posted by Mike Dorf

Less Buchanan on Dorf on Law, More Dorf on Dorf on Law

During 2009, the pattern on Dorf on Law has been for Mike Dorf to post five or six times in each two week period, for me to post four times every two weeks, for Sherry Colb to post once every two weeks, and for the other co-bloggers to post on an ad hoc basis. As of this week, I am joining Professors Colb and Dorf as a regular columnist on FindLaw. After some discussion, we have decided that I will henceforth post once each week (usually Thursdays) on Dorf on Law, with Mike and other co-bloggers picking up the extra slot each week. This can change, of course, if I happen upon any examples of people mischaracterizing the estate tax, or saying good things about 3-D movies, requiring an immediate post on Dorf on Law.

-- Posted by Neil H. Buchanan

Welcome 1Ls

This week 1Ls at Cornell and other law schools begin their legal studies. Still other schools may have started already or will soon. Here I'd like to dispense a bit of advice to the entering 1Ls about how to understand the adventure on which they are embarking.

First, let me plug some of my older work. Here you can find a 2001 essay on the Socratic method and thinking like a lawyer, in which I argue that there is nothing especially distinctive about legal thinking. Here you can find a mostly tongue-in-cheek summary of the first-year curriculumn. And here you can find a 2005 essay, written on the occasion of the Harriet Miers nomination to the Supreme Court, summarizing my own subject, constitutional law, in a bit more detail.

Now onto a new observation. (New to my writing, that is. I have made these points in welcoming sessions to 1Ls before, and it's quite possible others have said similar things). I want to address the question of what it is, exactly, that you're doing in law school. I don't mean WHY are you here. That's easy. The job market stinks, and you figure that if you hide out in law school then in three years things will have turned around and you'll have a valuable credential. I mean instead to ask what you should aim to get out of a legal education.

Law schools are professional schools. As such, their primary educational mission is to begin to train you in the practice of law. I say "begin" because much of the nitty-gritty of legal practice can only be learned through doing. Various experiential law school courses--simulations, externships, and clinics--give some hands-on experience, but the bar continues to complain that students graduate from law school with only a bare inkling of what they're supposed to do as lawyers. There is some merit to this complaint, but I also think it is overstated. In my experience with my former students (many of them by now partners at top firms, or well established in government or public interest law), as well as my ongoing experience as a lawyer--I moonlight for pro bono as well as paying clients--people who excelled in legal reasoning while law students become excellent lawyers, almost regardless of the courses they took.

Nor are top grades or a degree from a high-prestige law school essential to becoming a good lawyer. Anyone who pays attention in law school can become a first-rate lawyer (though not everyone will.) Moreover, there are lots of different ways to be a successful lawyer. For example, I knew a trial lawyer who was outstanding before a jury but was a poor writer. He succeeded by teaming up with an excellent writer who was shy.

Although teaching reasoning and other legal skills is part of the primary mission of legal education, I have long regarded it as having an important secondary mission: Most law schools are located within universities because the study of law is an important part of a full liberal education. (This is also true of stand-alone law schools.) Law students who regard their legal education as a continuation of their undergraduate (or in some cases, graduate) studies will be doubly rewarded. First, they will end up enjoying their three years in law school, seeing in those years the opportunity to engage fundamental questions about the organization and regulation of virtually all aspects of life. And second, as a result, they will likely do better strictly along the practical dimension. Those who find the study of law interesting in the way that they previously found literature, biology, or history interesting will pay closer attention, work harder, and learn more than those who see their legal education simply as a matter of punching the clock for three years until they earn their credential.

Welcome aboard. Now work hard and have fun!

Posted by Mike Dorf

Suffering in Animal Agriculture is Inevitable

[Note from Mike Dorf: The following post by Sherry Colb went up virtually simultaneously with Neil Buchanan's post yesterday morning due to a scheduling mix-up on my part. In case it was missed, I'm moving it up the page for a bit. Please note also that this means that the reference in Paul Scott's post to Sherry's post "below" now refers to this post, which is above. So many bloggers; so little room . . . .]

In recent posts, there has been much discussion about whether it might be morally acceptable to consume animal products if their production involved death but not suffering. The realities of agriculture, of course, have nothing to do with painless or cruelty-free death, whether one is consuming "cage free" or "organic" animal products or factory-farmed versions of such products. (For a useful antidote to "cage-free" and other such claims about humanely raised animals, read this). But some argue that due to (hypothesized) limitations in animals' ability to conceive of themselves in the future, inflicting a painless death could somehow represent a morally neutral act. Here is a thought for believers that farmed animals' (hypothetical) painless death would represent no harm. It is important to say, if only because those who consume animal products may think that the possibility of painless death represents an argument for human omnivorousness, even if that possibility is not realized in fact.

Nonhuman animals -- including those routinely "raised" and slaughtered -- require proximity to other nonhuman animals for their wellbeing (not unlike human animals, incidentally, whose insanity in response to solitary confinement is well known). Therefore, when an animal is slaughtered, then even if death were not itself a harm to the slaughtered animal, either it will cause great distress to other nonhuman animals (the ones who have become attached to the one who is slaughtered) or, if there are no nearby nonhuman animals -- if the one animal is completely isolated -- then the life of isolation in which the "farmer" has kept this animal will have been one of extreme cruelty.

Thus, in order to slaughter an animal for food, one must either deprive the animal of bonding and relationship with other animals (and thereby "harm" the animal by causing him or her to suffer terribly) or must, in taking the animal away to slaughter, cause the animals with whom the one has bonded to suffer terribly in the face of the loss.

Indeed, cows bellow loudly when their cage-mates are trucked away for slaughter. They do the same when their babies are taken away for veal (to allow the milk to be diverted to human rather than calf consumption) -- they mourn and bellow, and other cows try to comfort them. And this is no less true for birds such as chickens. Hens are very attached to their chicks, enjoy snuggling with them, and do not want them taken and killed. Interestingly, our language recognizes this reality (even as so many of us have forgotten it) by referring to "mother hens."

It is thus impossible to raise animals for food and food products and avoid causing them intense suffering, and it is impossible to kill an animal without causing other animals intense suffering. It would seem to follow from this that one ought to aspire to be a vegan (and in fact be a vegan) and thus withdraw support from the inherently cruel institution of animal agriculture. To do otherwise is to communicate a vote -- far more effectively than by voting on election day -- for the cruelty to continue. There is no painless slaughter, and one cannot disclaim responsibility for demanding that suffering simply by assuming that there is.

Posted by Sherry Colb

What Counts as an Original Habeas Petition in the Supreme Court?

On Monday, the Supreme Court took the highly unusual step of (sort of) granting an "original" habeas corpus petition, i.e., a petition filed directly with the SCOTUS rather than coming up through the lower federal courts. The Court sent the case of Troy Davis to a federal district court in Georgia for an evidentiary hearing into whether Davis, who is on death row, is innocent of the murder for which he was convicted. (Most of the key witnesses have recanted.) The Court's terse order produced a sharp disagreement between Justices Scalia and Thomas, who dissented from it (here), and Justices Stevens, Ginsburg and Breyer, who endorsed it (here). I'll have a FindLaw column up on the case next week, but for now I want to flag one special peculiarity of the case. (The case is described ably here.)

In the course of responding to Justice Scalia's claim that one of the limitations of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") would bar any legal relief for Davis, Justice Stevens says that AEDPA might not even apply to original petitions in the Supreme Court. In my column, I'll analyze this hypothesis, but here I want to note the oddity of even characterizing what the district court will be doing as considering a case falling within the Supreme Court's original habeas jurisdiction.

To see the problem and Justice Stevens's potential circumvention of it, we need to understand where the Court normally gets the authority to issue writs of habeas corpus in the first place. After all, Marbury v. Madison says that Congress cannot expand the original jurisdiction of the Supreme Court, and issuing habeas petitions is not one of the categories of original jurisdiction listed in Article III. One solution favored by some academics is to say that individual Supreme Court Justices could grant habeas petitions without offending Marbury. That's not as much of a gimmick as it sounds, given that in the early Republic, individual Justices frequently acted in a non-S Ct capacity when riding Circuit. The problem is that the current habeas statute has a separate provision conferring jurisdiction on individual Justices in addition to the provision conferring jurisdiction on the Court as a whole. So we must revert to the classical answer, which was given by CJ John Marshall in 1807 in Ex Parte Bollman: When the Supreme Court grants a habeas petition, it is exercising appellate jurisdiction, not original jurisdiction, at least as far as Article III is concerned.

Now we have to ask what the relationship is between the S Ct and the district court in Davis. In order for the evidentiary hearing that will be conducted within the district court to count as part of an original petition case in the Supreme Court, we need to say that for Article III purposes the SCOTUS is exercising appellate jurisdiction over the district court (or perhaps over the Georgia state courts, but that would fly in the face of numerous S Ct statements denying that federal habeas is an "appeal" from the state courts), while for statutory purposes, the district court is a kind of adjunct of the Supreme Court, much in the way that district courts utilize magistrates and the Supreme Court itself utilizes special masters in the boundary dispute cases that fall within its (Article III) original jurisdiction. I suppose that the Supremes have sufficient supervisory power over district judges to enlist them as special masters or their equivalents. But if so, the Davis order is still odd in that it nowhere states that the district court is being used as anything other than a district court.

Posted by Mike Dorf

Appropriate burdens when dicussing policy for Animal Rights and Animal Welfare

Over the last week there has been much talk on this blog regarding the moral obligations we, as human animals, have to non-human animals. One line of argument against an obligation not to kill non-humans has rested on the factual assumption that nearly all non-human animals do not and cannot experience the world as we do. I share the view (expressed by Mike in a post and in the comments) that even if this were true, there would still be other, morally sufficient grounds for not consuming animals and animal products, but here I want to explore a question about this and other factual assumptions, and where the burden of proof should rest.

Science, historically, has to take some of the blame for the tendency to assume important distinctions between humans and non-humans. In its early, but still modern, days there was a strong rejection of any anthropomorphism. This principle was reasonable in its day. As a field, modern biology and behavior were in their infancy and genetics did not exist at all. Assumptions (partially based in religion and partially based on observation) that Man was very different from the rest of Nature were pervasive and - again - reasonable, given the knowledge available at the time.

Today, however, there is no serious disagreement among biologists, geneticists and behaviorists that non-human animals, for the most part, do experience the world in much the same way as us human animals. The extent and precise contours of that experience - in a creature by creature approach - are slowly being learned. Almost invariably, when a study is published on the matter, the animal and behavior under study is revealed to, in fact, work much like us humans.

This, of course, should not be at all surprising. Human and non-human animals share an enormous amount of genetic code with one another. Our physiology is similar. The physics and chemistry in which our sensory organs and central nervous systems work are nearly identical. Why then should the assumption be that even though physically and chemically two systems are identical those systems act in a completely different manner when found in human animals as opposed to non-human animals?

It shouldn't. The assumption should be the opposite - there and available to be disproved if untrue. That is the way things work in almost every other field, so why should it be different here? If one picks up a piece of granite and tosses it into a still pool of water, observing concentric rings forming and spreading from the point of impact, does one expect something completely different to happen if instead of granite one throws basalt? If instead of into water, one tosses the same rock into a vat of alcohol? Of course not. One may (and should) accept that someone could come along and prove that, in fact, there are different behaviors, but one would not start with the assumption that these events will be entirely different until proven otherwise.

Sherry used exactly this reasoning in her reply to Caleb in her post below: "Because they are so much like us in their neural pathways and brain chemistry, I infer that when they are subjected to human acts that would cause excruciating pain in humans and then react in the same sorts of ways in which humans react to torture, that they are experiencing the same sort of thing that human beings are." That is the appropriate, logical and reasonable response.

If resting their claims on an "other animals are different from us" argument, it should be the burden of those wishing to torture and kill non-human animals - of those asserting that veganism is a "moral error" - to provide evidence that this reasonable conclusion regarding similarity is, in fact, not true.

-posted by Paul Scott

Why Are (Most) Tax Cuts Less Stimulative Than Spending?

Earlier this week, in "Where Are Those New Ideas?" I looked at some tax policy proposals from Newt Gingrich's advocacy group, Freedom for American Progress in the Future of Liberty and Apple Pie (or something like that). In part, the point of the post (as indicated by its title) was to say that nothing from the man whom even liberal pundits call "the idea guy" could plausibly be called a new or innovative idea. It is all just more attempts to cut taxes on capital and, more broadly, on high income people. At the end of the post, I also pointed out that even the aspect of Gingrich's proposal that seemed to be "populist" -- cutting payroll taxes (Social Security and Medicare) in half for two years -- was actually just a way to rewrite ex post the stimulus bill (which, we must recall, was re-drafted to include large elements of tax cuts in a vain attempt to get broad bipartisan support) to turn spending into yet more tax cuts.

A comment on that post raised a number of very good questions about my working assumptions regarding the relative effectiveness of tax cuts versus spending in dealing with an economic downturn. Here, I will take the opportunity to offer some answers.

"Question 1: Even if the payroll-tax cuts would not go entirely to employees, surely the employers would not stick it under their mattresses. Even if they passively invested some of the money, would that not stimulate employment?"

Following money as it flows through people, businesses, and governments is extremely tricky. It is misleadingly true that since money is never actually destroyed, it is always available to be spent later. The real question, however, is whether it will be spent currently on new goods and services (which is what puts people to work).

True, businesses will generally not systematically pull cash out of the financial system entirely -- although this will happen more often during a crisis than in good times. A business that has received a tax cut can use the money essentially for one of three purposes: (1) Give employees a raise, (2) Expand the business, (3) Put the money into a financial asset (e.g., savings account). During a crisis, options 1 and 2 are especially unlikely. What happens to the money that is put into banks? In good times, the banks will lend the money to businesses or individuals who want to spend it to buy new goods and services. Today, banks have been sitting on the cash. They, in essence, have been sticking it in a mattress called a vault. What little demand there has been for loans has been largely ignored by banks because they are hoarding cash.

"Question 2: Why wouldn't cutting taxes and getting the money directly into consumer's hands be more of a stimulus than what the government is doing now? Isn't it one of the problems of the stimulus plan that it takes too long for the money to get through the system?"

Actually, the government's stimulus spending is working surprisingly well. The slowness in getting some money out the door was partly by (poor) design, as the attempts to mollify critics led to decisions not to spend money on immediately available projects that would have put people to work. What has been done, however, is indeed putting people to work. (Try driving anywhere in the country today without hitting a backup for road repairs.)

Still, why would it not be true that putting money in the hands of non-rich people (through a cut in payroll taxes) would also be immediately stimulative? As I pointed out in the post, it is not at all obvious that the payroll tax cut would actually affect the bottom lines of workers, if businesses are able to capture the tax cut by adjusting gross pay. If the tax cuts do make it into the hands of non-rich people, however, they will be more likely to spend it if they are not worried about losing their jobs. That is why the spending is more effective if it comes directly from the entity that will surely spend and not save the money -- the government.

That is not to say that tax cuts for the middle class are ineffective but that they are less effective than direct stimulus spending. When stimulus spending improves the economic climate, that has the added benefit of encouraging people to spend the tax cuts that they did receive, confident that they can do so without fear of needing that money were they to lose their jobs in a continually weakening economy.

"Question 3: This isn't that great of a point, but I think it is worth mentioning: even if the tax incidence is such that employers reap the majority of the benefits, aren't employers consumers as well? Wouldn't we need a cost/benefit analysis before concluding that one plan is better than the other?"

This is a great point, at least in that it again points out that money from tax cuts does not disappear. Since it does not, where does it go? Employers are, indeed, people who consume. They are overwhelmingly, however, people whose basic consumption needs are already well taken care of. This brings us back to the first point: People who do not need to spend will put their money into banks (or bank equivalents), which will -- in the current environment -- not lend most of it out. The money exists, but it simply sits.

The broader point, that we always need a cost/benefit analysis to determine whether one plan is better than another, is surely right on the mark. This, however, is an area where the costs and benefits are very easy to predict. Especially when the economy is weak, government spending is much more stimulative than tax cuts, and tax cuts that reach non-rich people are much more stimulative than tax cuts that only reach rich people and businesses. It is sad that political constraints have undermined the stimulus package and made it less effective than it otherwise could be, but redirecting the money to business tax cuts (which is, directly or indirectly, what Gingrich is proposing) would make matters much worse.

Thanks for reading.

-- Posted by Neil H. Buchanan

Juvenile Life Sentences and the Image of a Child

In my FindLaw column today, I write about the upcoming companion cases of Graham v. Florida and Sullivan v. Florida, which challenge the constitutionality of sentencing juvenile offenders to life imprisonment without the possibility of parole. In my column, I suggest that the case against such punishments, taken in isolation, is weak, although the broader argument against long prison sentences (for adults and juveniles alike) is far stronger.

I want here to explore the special feelings that juvenile imprisonment inspires. When we speak of sentencing a minor to life imprisonment, I think that part of what we find upsetting is the picture of a child in prison. To state it differently, when we see a picture of a 14-year-old and learn that he or she has been sentenced to life without parole, we feel a sense of sadness and empathy for the 14-year-old rather than for the adult that he or she will soon be. This poses a problem for advocates of abolishing life without parole for juveniles.

The problem with this sort of empathy is that youth passes. Interestingly, this fact forms the basis for some of the arguments against juvenile incarceration for life (including the capacity of young people to become very different sorts of adults). But it also means that the appeal of a youthful face is fleeting. Before long, the person serving the life-term is an adult with an adult face who looks very much like the other people in prison and accordingly less sympathetic.

Why does this matter? The arguments in the briefs do not rest at all on the fact that if we look at a minor's face, we likely feel some sense of loss in allowing the government to deprive that person of everything. Yet the emotional power of protecting children against an overbearing criminal justice system diminishes quickly in a way that it did not in the case of executing minors.

When opponents of the death penalty for minors argued their case, it was easy to feel a sense of outrage at the prospect of having the state kill a minor (an event that could, in theory, happen before the minor even reached adulthood). Life imprisonment, by contrast, is a sentence that is lived over time, and most of that time -- even if it begins at age 14, 15, or 16 -- will pass during the youth's adulthood.

This contrast in emotional resonance may, I think, make it more difficult to win this case, quite apart from the merits (which I discuss in my column). Though children can be attractive petitioners, their attraction -- and perhaps also, their pull on people's emotion, passes quickly into adulthood. And then, they have become adults whose violence began even earlier than the others'.

Posted by Sherry Colb

Where Are Those New Ideas?

At the end of June, I published a post in which I marveled at Newt Gingrich's reputation as a guy with a lot of ideas, even though there is precious little evidence that he has ever had an innovative idea in his life. Once a media narrative is put in motion, however, it is nearly impossible to dislodge it. We can, therefore, count on being treated to regular reminders of what a smart guy he is, even though he seems to spend most of his time on TV talking about "death panels" and peddling other outright lies and distortions.

Possible evidence to the contrary did, however, show up on the TaxProf blog recently. It seems that Gingrich's new lobbying organization (which has one of those generic names beloved on both sides of the aisle in Washington, combining -- seemingly at random -- words like "future" and "solutions" and "American," but somehow skipping over "freedom" and "liberty" and "progress") has started a petition drive in support of a plan to fight the recession and create jobs, jobs, jobs. Truly a worthy goal. The innovative, breakthrough tax planks of the plan are:

(1) Cut the payroll tax in half for two years,
(2) Abolish the capital gains tax permanently,
(3) Reduce the corporate tax rate, and
(4) Abolish the estate tax. (Not that they used the term "estate tax," of course.)

A few things immediately leap from the screen. First, there is absolutely nothing new in #2-#4. It is always about tax cuts, and it is always about cutting or eliminating these particular taxes. We have even been told that the only proper response to the terrorist attacks of 9/11/2001 was to cut the capital gains tax. (For my critique of that bit of opportunism, see here.)

Second, the only thing that seems to vary is whether we are being told that we must reduce or completely abolish capital gains and corporate income taxes, while the estate tax must always be eliminated entirely. Why the difference? We are never told, and even within the economics literature that attempts to measure the supposed damage to the economy of these taxes, there is precious little support for the idea that the estate tax is the worst of all the taxes on capital.

Of course, the heavily-financed public relations campaign against the estate tax has been so successful that, as a political matter, the base (who, one might expect, would be the target of such a petition/fundraiser) is most revved up about eliminating that tax in paricular. What's the matter with Kansas?

Third, the only mildly unusual (but hardly new) proposal is #1, which at least appears to be a cut in taxes on labor rather than capital. Of course, after describing this tax proposal as a "take home pay raise" for all workers -- yet inexplicably and arbitrarily limiting the cut in this tax to two years, rather than a permanent reduction or outright repeal -- Gingrich's group then describes the proposal as a business tax cut: "This would also immediately increase the liquidity of every small business, because there would be more money available to put back into the business and create more jobs."

It is especially interesting that this argument is coming from the people who also tell us that the tax rate that workers pay includes the the employer's half of the Social Security and Medicare taxes. (This is part of, for example, those high combined rates of taxation that we sometimes see trumpeted in the news, claiming that people are forced to pay rates of more than 50% on their additional earnings.) If businesses would use the reduced payroll taxes for something other than increasing the take-home pay of workers, that exposes as a fraud the idea that workers really pay the full amount of payroll taxes.

Moreover, if workers will not receive the full amount of the cut in payroll taxes on the business side, why should we expect that they will receive all -- or any -- of the cut in the workers' half of payroll taxes? This is, of course, just an application of the age-old question of "tax incidence." If I am an employer, and I know that my workers are currently willing to work for me at a take-home salary of, say, $30,000/year, why would I let them keep the cut in their half of the payroll tax? I can cut their gross salary and leave them no worse off than before. In an economy with no bargaining power for workers (lack of jobs, jobs, jobs), how could workers complain?

Still, this proposal might be acceptable (though dishonest marketing) if the businesses were to use the money that they keep from the tax cuts actually to create jobs. Unfortunately, the problem in today's economy is not the supply side. Businesses are failing to create jobs because they cannot sell the products that those new workers might produce. Stimulus spending that would generate demand and thus make it worthwhile to hire workers is, of course, not part of the plan.

In fact, and as a fourth and final point, the plan would directly undercut the stimulus by redirecting unspent stimulus money (and remaining TARP funds) to replace the money that the payroll tax cuts would otherwise drain from the Social Security and Medicare trust funds. Essentially, therefore, the payroll aspect of the tax plan is just a way to tilt the balance ex post between tax cuts and spending in the anti-recessionary policies that have already been adopted.

It is possible, one might suppose, to count as an "idea" a proposal to undermine despised policies by simply repackaging familiar anti-tax rhetoric. If this is the basis for a reputation as an idea man, however, the term is even more degraded and empty than we might have suspected.

-- Posted by Neil H. Buchanan

What is Harm? Guest Post

[Here's some follow-up on the exchange over what counts as harm to sentient creatures, courtesy of my colleague Bob Hockett]:

I’ve been following the recent exchange on the morality of veganism with interest, and thought I might offer my own two cents’ worth. Please pardon if the actual value of this contribution falls below stated par.

For the moment I’ve got three quick comments to offer, two of them fairly narrow in scope, the other a little bit broader. Perhaps there will be more to say later.

The first narrow comment is probably the one most worth making right now. It is that agreement appears very broad on the proposition that it is wrongful to inflict readily avoidable suffering on sentient creatures, and that this is so irrespective of the biological species that those creatures represent. Many who are vegetarian, vegan or veg-symps, in turn, observe among other things that the means by which we “produce” animal products for human (and pets’) consumption do inflict massive such suffering upon nonhuman (and for that matter even human) animals, suffering that could indeed be readily avoided. Were most of us who have tended to consume these products to know about this suffering, and the ways in which it is rendered inevitable by our principal means of “processing” animal products, these same people maintain in turn, we would many of us quickly come to constitute a very large potential market for alternatives. That market would in all likelihood be sufficiently large as to confer scale economies upon the production processes of the mentioned alternatives, and would accordingly afford means not only of ending the massive suffering being experienced even at this moment, but also of satisfying the earlier mentioned “readily avoidable” condition. We could, in other words, in the long run quite inexpensively end this suffering. Inasmuch as this is so, the current suffering is in an important sense gratuitous.

It seems to me that all of the above observations are empirical in character and readily corroborated or falsified. For my part I find many of them corroborated and none of them thus far falsified, and suspect that others who investigate them will find likewise. If that is so, then we already have here the makings of an overlapping consensus sufficient to prompt broad political action directed to bringing urgently needed change to the practices of certain very large industries (beef, poultry, fish, dairy, leather goods, you name it). People of Benthamite, Kantian, Aristotelian, and all manner of other persuasion seem to me very likely to agree that the massive and readily avoidable suffering now underway can and ought to be ended, and to vote and/or agitate accordingly, if only the fact of that suffering and its ready avoidability are brought to their attention.

My second narrow comment is in a certain sense for another day – the day that the just mentioned massive gratuitous suffering is ended and we have the luxury of arguing more precisely and at greater length the specific grounds of our objections to it. But since I have a conception both of myself as living a temporally extended life and of “us” as sharing a yet more extended such life, and since as an academic and all around loudmouth I can’t help but look forward and opine in advance, I’ll hazard a thought or two about the aforementioned more specific grounds.

There are of course multiple possible such grounds and so any reasonably full comment about them is in potential quite broad rather than narrow. I call my next comment narrow, however, because it is directed principally to the place, in the present context, of some arguments made by David Velleman (assuming I have not mangled them) in another context – arguments that certainly bear upon some though not all grounds upon which one might develop or affirm a more detailed ethic concerning the rights or interests of nonhuman creatures.

I take it that Velleman, much of whose work I should say at the outset that I generally admire, figures into the colloquy between Brian and Mike in virtue of observations he makes in the final few pages of his often illuminating article “Well-Being and Time.” (The article in full comprises about thirty pages of journal text.) The bearing of these pages on the present discussion is further drawn out by at least one other of Velleman’s articles of which I’m aware, namely his “Is Motivation Internal to Value?” So I’ll refer to both of these articles below, hoping that I have neither forgotten nor simply failed to notice the special bearing of any others of his articles and monographs on the present discussion.

Here is how Velleman as I understand him enters into the present discussion: He advances two related and, in their place, altogether plausible theses which, when conjoined to a particular proposition about certain nonhuman animals, initially appear to entail that these nonhuman animals’ lives are, qua lives, devoid of value.

The first thesis is a version of what I’ll here call, following Velleman and others, "internalism" about what is good for or valuable to a creature. (Usually the creatures in question are called "persons," and this proves to matter in a way that I’ll presently specify.) The thrust of this rendition of value internalism, as I understand it, is that what is good for or valuable to a creature must be grounded in some way in what the creature cares about or at least could care about on some plausibly idealized conception of that creature. (The importance of caring of course resonates with certain Frankfurtian themes, and the linkages between some conceptions of well-being and idealized caring is impressively explored in Griffin’s 1986 book, with which Velleman is of course thoroughly familiar.) The alternative to this rendition of value internalism, according to Velleman in “Is Motivation Internal?,” taking a cue from Peter Railton, would be an "intolerably alienated" conception of the creature's good. The putative good for the creature must accordingly be able in some way to "engage" that creature if it is to be taken to be a good "for," or valuable “to” that creature.

The second thesis, which I'll call "wholism" about the value of a life and “particularism” about the value of specific events occurring at particular moments of that life, builds and seems to me even to rest upon value internalism of the form just sketched. Succinctly stated, it is the claim that under at least one condition, which I'll presently specify, the value of a creature’s life cannot be composed of or decomposed into the values realized in particular moments of that life. (As in the case of the first thesis, Velleman speaks mainly of “persons” rather than “creatures” here. And once again, presently I’ll say why this is significant and why I generalize the thesis to the case of creatures.) There are accordingly at least two distinct and autonomous species of value associated with the living of a life: synchronic value associated with events that occur at particular moments of a life (as experienced by the liver of that life), and diachronic value (again as experienced by the liver of the life) associated with entire lives of a certain kind – the kind that meets the condition I am to specify. (The conceptual space between these two species of value might be analogized to that between lines or line segments on the one hand and points on the other in geometry. That “disconnect” is part of what brought such puzzlement to the project of “arithmetizing” analysis at the turn of the last century, via the then-seemingly requisite attempts to “build” lines out of points – puzzlement that culminated in the set-theoretic paradoxes.)

Now to that “condition” to which I have alluded: It is that the creature in question possess a conception – or, I suppose one could say in a more venerable idiom, a “representation” – of itself as living a temporally extended “life.” A creature’s meeting this condition not only figures into Velleman’s argument for wholism about the value of a life, but also seems to be at least part of what renders a creature a “person” in the first place for purposes both of the arguments that figure in “Is Motivation Internal?” and “Well-Being and Time.” So I’ll call this the “self-consciously life-living person” condition.

The reason that meeting this condition supports wholism about the value of a person’s life (at least to the liver of that life), I think I am correct in taking Velleman to argue, is that a person’s conception of her own life bears a particular kind of structure – a narratival, or "dramatic" structure. The structured character of a narratival life brings it under a distinct category of value, the wholist one. For in a narratival life it is not the constituent moments, but the “story” that various episodes as interrelated come ultimately to constitute, that yields the value associated with that life by the liver of that life. Within such structures it is not only the benefits and burdens accrued at particular moments, but, among other things, also the orders in which they accrue that bring success, failure, meaning, value, and so on to one’s life. This not unfamiliar take on value in human lives has struck me as plausible and indeed compelling for as long as I’ve been aware of it. But now what about cows?

The reason that wholism about the value of a certain kind of life – that of a person as philosophically understood – undercuts the value of a cow’s life, I take Velleman to argue, is that a cow (as Velleman admits to assuming) simply does not meet the self-consciously life-living person condition. It does not seem to be what Velleman would call a “person” at all. It “cannot conceive of itself as a persisting individual and consequently cannot conceive of itself as enjoying different benefits at different moments during its life,” as he puts it. In consequence, there is no narratival life or, therefore, “whole-life” value for a cow. There is at most only “particular-moment” value. (Those last two are my terms, so please don’t blame Velleman.)

Now, how to assess this argument as an argument to the effect that a cow’s life lacks value qua life? I’ve three reactions, the first of which is merely a reminder: The argument of course does not touch, nor is it meant to touch, the question of whether readily avoided animal suffering matters. So please bear in mind the remarks made above: We are presently discussing only the more particular grounds for deploring and seeking to end massive gratuitous animal suffering, in order that we might begin to work out views as to what more to do or avoid once we have ended the mentioned massive gratuitous suffering. Back, then, to the argument as seen in that light.

Now if I have accurately abbreviated the argument, then it of course depends partly upon the “no self-conscious life-living for cows” assumption. It also depends pretty clearly upon the first thesis that I mentioned – Velleman’s rendition of value internalism (as the second thesis itself – life-value wholism / moment-value particularism – looks to do). And Velleman is explicit about hewing to this rendition of value-internalism in considering the possible value of a cow’s life. “What the cow cannot conceive, it cannot care about,” he observes, “and so a cow cannot care about which sequences of momentary goods it enjoys.” The cow’s caring in this way will of course be relevant to the value of its life only insofar as Velleman’s rendition of value internalism is – forgive me – internal to the conception of value at stake. Is it internal to the conception of value we ought to be employing?

To his credit, Velleman considers several – including weaker – forms of value internalism, with a view to determining whether there might be any rendition that could authorize us to say that a cow might care about its life as distinguished from moments of its life. But in the end no such rendition of value internalism that Velleman considers proves stable. (As it happens I think he’s too quick about one of them, but I don’t want to rely on that so I’ll skip this large question for now.) So Velleman ultimately concludes that “we should refuse to combine” momentary benefits and burdens accruing to cows. Instead we should conclude that “a cow can fare well or ill only at particular moments.”

I believe it is open to us to contest the particular conception of faring well, tied to the species of value internalism at work in Velleman’s argument, upon which Velleman’s conclusion follows; and so I shall do in a moment. But first I want to say a couple of things about the no self-conscious life-living for cows assumption upon which the conclusion also (perhaps less problematically) rests.

I confess to not yet having arrived, or for that matter even having tried to arrive, at any firmly decided view on what manner of self-consciousness or life-consciousness a cow – or many other creatures – might have. And this is partly because the conception of value that I find apt in the present context – a conception quite distinct from Velleman’s – moots the question. I will say however that I am often quite struck by how blithe we sometimes can be in matter-of-factly attributing or denying this or that mental capacity to this or that nonhuman animal. I know that the attribution of this or that kind of mental representation or concept-possession to this or that creature is partly (though I think not wholly) a means of interpreting various movements in which we find the creature – including the human creature – engaged. And I know that there is therefore presumably less reason to attribute some forms of concept-possession, including self-concept-possession, to some creatures than to others. (I have of course assumed that the onus of proof is on the attributor in acknowledging this.) But this is only one of what I’ve a strong suspicion should be many considerations that would properly enter into more fully considered concept- and other capacity-attributions to human and nonhuman creatures alike. And it would be good to see much more reference to such considerations by claimants on all sides of these discussions, at least when they are relying on these attributions or denials. Sherry Colb, incidentally, has accumulated a wealth of information on these matters.

I should add that I have also heard and read sufficiently many denials of various forms of consciousness and other mental capacity to, for example, dogs, the attributions of which forms subsequently turn out to afford the apparently best means of explaining things that my own dog does, to have developed a certain skepticism about these glib denials. I have little doubt, for example, that Atticus, the dog in question, carries something like representations of self and other, and of temporal patterns and continuity, even though I cannot at the moment imagine what would tend to corroborate or falsify a proposition to the effect that he has a narratival sense of his own life in its temporal entirety. But enough of that for now, since again it is first a very large subject to which I cannot do justice in short (or perhaps even long) order, and second, not what I think to be the most decisively contestable feature of Velleman’s reflections as brought to bear on the case of nonhuman creatures. For that feature is, I think, the aptness of value internalism as described by Velleman to the case in question.

Now the kind of “internality” to which one alludes in speaking of the forms of value internalism at work in Velleman’s argument is, I take it, that suggested by such locutions as “the internal point of view.” Value internalism is, if so, a view pursuant to which something is valuable “to” something else only if that something else is itself able, as a creature with affect, to value that thing. But there is of course nothing that requires us to restrict our conception of value to any rendition of internalism as thus understood – or, therefore, to elide without comment from a cow’s life’s not being valued qua temporally extended narratival life by the cow, to the cow’s life’s being devoid of value, simplicitur.

I think that “Well-Being and Time” is perhaps insufficiently attentive for present purposes, in its last few pages – which after all appear to figure as a sort of afterthought to the principal concerns that occupy the first twenty-six pages – to questions of appropriate scope in connection with that to which value is expected to be internal (or is it that which is expected to be internal to value?). It is perfectly intelligible, for example, to say that certain viral infections are bad “for” lizards or wasps, or that vaccinations are good “for” a dog, and that they are in that sense disvaluable or valuable “to” those creatures – by being thus to their natural lives – even when those creatures are not themselves capable from their internal points of view of “disvaluing” or “valuing” the burdens or benefits in question. If there is a conception of a well-formed, properly functioning, healthy or flourishing instance of a particular life form or other type, then there is a conception of what is good for or valuable to the things of that type – a conception that is internal to the type even if not to the consciousness of the instances of that type.

Now the capacity to carry a representation of one’s own narrativally lived life, and the possession of some form of autonomy in conceiving one’s own articulated conception of the good life, and finally, a consequent capacity to “care” about things with a view in particular to their contributions to or detractions from one’s well-lived narratival life, seem pretty clearly to be internal to that form of life known as (philosophical) “personhood.” And for that reason it is hardly surprising – it is altogether fitting – that Velleman’s articles referenced above, which as noted before concern themselves from their outsets with “persons” and frame themselves accordingly, would make use of a species of value internalism to which Frankfurtian care or Railtonian engageability is itself internal – a species of value bound up with the “internal point of view” of a conscious individual. And so those of us who are respectful of persons qua persons will tend to view the value simplicitur or objective value of a life, and the subjective valuation of that life by its liver, as somewhere near full overlap in this, personal, case. At least that will be so insofar as we eschew, as most liberal political philosophers nowadays do, perfectionism of Hurka’s variety. But where the ambit of a creature’s self-awareness or self-representation (if any) falls shorter of the ambit of its full natural life than we find in the case of the (philosophical) person, it seems to me that we cannot legitimately restrict the value of the creature’s life to its own capacity to value that life – at least not without further argument. For the internality involved in value’s being internal can in these cases be plausibly characterized as internality to the species or life form itself about whose instances we are speaking.

Now for my own part, I am inclined to say that value inheres in lives qua lives, narrativally self-represented or otherwise, and that the tendency of most living things to struggle to hold onto their lives is simply one indicator of this. I recognize that there is perhaps something vaguely Platonist (not to say Aristotelian, more on which in a moment) about thinking this way. But I’m not convinced that I’m ultimately any more Plationistic than is, in effect, Velleman. For, after all, even if a person’s fully articulated, internally and autonomously projected lifeplan were cut short by his death in his sleep, and he was not in any sense any longer capable of being aware of the fact, there would be no loss of value, to the now unknowing former-liver, occasioned by the failure of his lifeplan to be realized, it seems to me, unless the conception of value at work in a claim to the contrary was independent of ongoing actual valuation by the life-planner. (I’m of course bracketing third-party valuing both here and in the case of nonhuman creatures.)

So I am going to recommend that we work with a conception of value to which I believe even Velleman himself is at bottom committed. This conception has it that a life is valuable even independently of the capacity of its liver to value it as a life of some more or less specified temporal duration. It is a conception with which I suspect most of us work at least intuitively. And for reasons just indicated I do not believe anything Velleman says undercuts this conception; indeed quite the contrary. I hasten to add, before I proceed to my last comment, that none of this is to say that the values of particular nonhuman creatures’ lives cannot be over-ridden by other values, any more than the value of a self-consciously lived life to its (representative, unimpaired) human liver cannot be over-ridden. It is only to deny the claim that they are altogether devoid of value qua lives as distinguished from moments of lives. It is to claim that all living things are the beneficiaries of defeasible obligations, on the part of those of us who examine our lives with a view to acting upon judgments of value, not to destroy them cavalierly – and that the real question is therefore not whether there are such defeasible obligations, but the conditions under which they are legitimately defeated.

Now, I recognize that there is probably something not only Platonic, but also Aristotelian in spirit in the view I have just begun trying to articulate. Indeed, I would seem to be committing myself to the value of more lives than those even of animals, and perhaps even to the value of “nature” itself. And this takes me to my third and final comment for now.

I recall being quite struck, as a child, by the particular form of disgust – a disgust tinged with sorrow and worry – that I experienced when another child once employed the dead body of a fish as a sort of “ball” of the kind associated with a particular game. I was also quite struck by the strangely lurid, deranged sort of laughter into which he fell as he did so, as though even he was aware at the back of his consciousness that there was something deeply disordered about what he was doing, and was in a sense worried about it. The fish, as I say, was apparently already dead, and so presumably well beyond even momentary experience. Yet it somehow felt as though this creature was in a certain sense being wronged by the child who thus kicked it around, and that the child was in a certain sense wronging himself and others in thus wronging the fish. The fish and the child and perhaps others, or the world of which they were part, or perhaps all of the above, seemed to be treated with a profound disrespect in this happening – desecrated, as it were.

This particular perception of wrong I experienced also seems to me somehow continuous with that which I find myself strongly inclined to attribute to the gratuitous despoliation of anthills and natural environments, and to the cavalier killing of creatures – even hypothetically painless such killing. It seems even to be part of the ground of my disgust with gratuitously inflicted pain itself. Why? I think it has something to do with the awe, the respect, the joyful astonishment that the sheer beauty and complexity of all living things, especially conscious such things, tends to inspire. Even watching an ant colony feels like watching a kind of miracle, let alone squirrels or kittens at play. A fish is so marvelously, as it were painstakingly designed, all in a manner that suits it to flourish in the environment it inhabits, that it is disgusting and seems profoundly wrongful when someone kicks it around like a ball. You needn’t be a creationist or “intelligent design” advocate to find a life and the form it instantiates wonderful, or to find a quite poignant species of value associated with it that does not feel as though it has to have anything to do with your “needs,” y our “interests,” or even your care – even though it happen to speak to some such need, or that you understandably care about it.

It has sometimes been said that ethics and aesthetics are “one,” or that they are at any rate akin. Exceedingly good deeds are often found “beautiful” gestures, justice seems bound up with symmetry (the English word “fair” was used first, I believe, of beautiful faces), and virtues are facets of well crafted characters. I seem also to recall that it has been said, I think by Kant, that the good will is in some other manner associated with a deep sense of “Achtung” – a sort of reverent attention. (It is wonderful that the French counterpart, “attention,” can in the imperative mood mean both attention and waiting. He who says “attendez” says “wait, look!”) I am tempted to say that the value of any creature’s – including the human creature’s – life, and perhaps even part of the profound disvalue of such creatures’ needless sufferings, is deeply rooted in whatever it is that seems so often to elicit this sense of respect from us. Perhaps it is the same ground as that which elicits that “wonder” with which Aristotle said philosophy begins. The faculties of wonder, of respect, and openness to goodness, beauty, and life’s value all seem to me faces of one faculty.

I don’t know yet whether this faculty, when heeded in moments of silent attention, must prompt all to attempt to go vegan, even if it prompts me a growing number of others in that direction. Nor do I know whether it will prompt all, as it seems to be prompting me and as it seems to have prompted others, notably the Australian logician Richard Routley, to make common cause with the “Deep Green” movement. (I do know it will likely not lead me to change my name to “Sylvan,” as Routley did!) But I suspect it will prompt most who will stop for a moment and listen, to be deeply respectful of all living creatures. And I’m sure it will prompt all who take time to learn what we’re doing to millions of nonhuman creatures, to agree this is not duly respectful – just as it is not humane.

Thanks for the exchange and thanks for listening. Maybe more later.

Posted on behalf of Bob Hockett

When You've Got a Hammer

In my recent post on Brian Leiter's post on veganism, I took issue with the distinction Professor Leiter drew between "synchronic" well-being and "diachronic" well-being. In his post, Leiter had characterized the former as "constituted by pleasant and unpleasant experiences at particular moments," and said that most non-human animals (perhaps excepting elephants) were merely synchronic. I attempted to strip away the jargon by simplifying this to the two-fold assertion that: 1) non-human animals live only in the moment; and 2) that therefore we do them no harm by killing them painlessly. I contested point 1) as factually inaccurate and then went on to note that even if 1) were true, in fact the overwhelming majority of animals that are exploited and consumed for food and clothing are not killed painlessly and are badly mistreated for just about their entire lives.

In the comments on my post, Leiter contended that I simply did not understand the distinction between synchronic and diachronic. He invoked the work of philosopher David Velleman for the proposition that this is not simply an empirical but also a "conceptual" distinction. So I went to Velleman and found that Leiter was right. I had mistakenly inferred that Leiter and Velleman had been making points about actual animals (and thus actual vegans), rather than the concept of animals (and thus the concept of vegans). For Velleman and Leiter, "conceptual," it turns out, means "imaginary." In getting his argument about the difference between humans and non-human animals going, Velleman says (at page 81 of The Possibility of Practical Reason) the following: "Consider a nonhuman animal, such as a cow or a pig. I assume that a cow cannot perceive of itself as a persisting individual and consequently cannot conceive of itself as enjoying different benefits at different moments in its life." The assumption is apparently constitutive of non-human animals for Velleman (and thus for Leiter).

Having been properly informed, I am now ready to concede: 1) Imaginary cows, pigs, and other non-human animals cannot conceive of themselves as persisting individuals; and 2) On the imaginary farms where the imaginary cows, pigs, and other non-human animals are treated humanely their whole lives and then unexpectedly and painlessly zapped by a death ray, the imaginary animals do not experience any harm other than the deprivation of future pleasure (which, Velleman says, those particular animals can't experience anyway, because they cannot persist as beings).

No doubt I have missed some important subtlety here, but even if so, I think this little exercise illustrates a larger point that a number of other commentators made on my earlier post: Philosophy as a discipline limits its relevance when it bases arguments on counter-factual assumptions. Philosophy is hardly unique in this respect, however.

Consider economics. If pressed, most economists will concede that the assumption of rational actors is not intended to model human behavior perfectly, but will say that the rational actor assumption makes pretty good predictions in general and very good predictions in some contexts. But even though most economists understand the counter-factual nature of the rationality assumption at some level, they often forget it when talking about real-world issues. For example, in a recent Planet Money podcast, U Chicago B School Professor (and economist) Emily Oster engaged in the following colloquy (which I am paraphrasing for simplicity rather than quoting in full):

Q: Why are restaurant meals bigger than they used to be?

Oster: Because food got cheaper.

Q: But why didn't restaurants keep portion sizes constant and lower prices?

Oster: Because people really like to eat.

Q: But isn't all that extra eating costly because obesity is unhealthy?

Oster: Not nearly as costly as it used to be, now that people have desk jobs that don't require them to move very much and we have medical treatments that extend the lives of obese people.

Oster's first two answers make sense but the last one is an example of the phenomenon under discussion: She forgot to state (and perhaps simply forgot) the limits of the rationality assumption. Undoubtedly, there are some people who somewhat discount the cost of an unhealthy diet because they're banking on statins, liposuction and bypass surgery. But a truly rational actor would surely know that a healthy diet will lead to much better overall health than these measures--and indeed, millions of people in fact make that calculation: They consciously try to limit their intake of unhealthy foods but are unable to control themselves (because human beings developed the tastes we have under conditions of scarcity in which occasional binge eating was helpful). The feeling of having one's super-ego (urging restraint) at war with the id's appetite is so familiar, that only someone too enamored of her model could so grossly mischaracterize the fattening of Americans as simply a rational act.

Having trashed the myopia of philosophy and economics, I should add that I live in a glass house. We in the legal academy who spend some portion of our time analyzing judicial decisions know from political science and simple observation that legal reasoning as such does not account for all of what's going on in contested cases, and that in the most highly watched Supreme Court cases---about abortion, affirmative action, gay rights, gun rights, school prayer, and other hot-button issues--ideology no doubt accounts for the lion's share of results. Sometimes we make this point, at least as a caveat, but at other times we write as though judges would reach correct results simply by reading our brilliant articles, regardless of their particular ideological predilections.

My point is not that philosophers, economists, and legal academics should always couch every sentence in their academic work with a caveat about the assumptions being made. Within disciplines, it is surely an acceptable shorthand simply to make the assumption. However, when speaking to a wider audience, the disclaimers need to be made: Leiter is talking about hypothetical animals; Oster is talking about hypothetical obesity; and we legal academics (myself included) are talking about hypothetical judges. Such hypotheticals can have relevance for the real world, but only to the extent that the models work. Leaving out that caveat can be quite misleading.

Posted by Mike Dorf

Signing Statements Redux

[Update: This is the same post as earlier but it got pushed down the page with the discussion of the Leiter poll on veganism, so I'm pushing it back up.]

Last week, Charlie Savage reported in the NY Times that the Obama Administration is using signing statements in more or less the same way that the Bush Administration did: To declare its intention not to enforce or abide by what the Administration considers to be unconstitutional provisions of Acts of Congress.

Is the charge of equivalence fair? Perhaps not. As Savage notes, Walter Dellinger, who was responsible for President Clinton's policy on signing statements, has taken the position that mostly what Bush did wrong was to invoke very bad constitutional objections. Even during the Bush years, Dellinger and others, some of whom now serve in the Obama Administration, defended the notion that the President could judiciously use signing statements to signal his intention not to enforce or to comply with truly unconstitutional legal provisions. Indeed, where a President does intend non-enforcement or non-compliance, they explained in their 2006 memo that signing statements signaling that intention promote transparency.

I have great respect for the authors of the 2006 defense-in-principle of signing statements, although I am skeptical of some of their conclusions. I ultimately agree with their claim that a President is not constitutionally obligated to veto an entire omnibus bill that is generally valid because it contains one provision that is unconstitutional--although I regard the matter as not entirely free from doubt: In the early Republic, Presidents often considered themselves obligated to veto bills they regarded as invalid but bills tended to be simpler then, so that vetoing them in their entirety was a realistic option. Does the emergence of omnibus legislation justify signing with caveats? I think so, although one could conclude that the real problem (for all sorts of reasons) is the omnibus legislation itself. And it's worth noting that the Supreme Court has squarely rejected the idea that the President has or can be given a line-item veto as a response to omnibus legislation.

I also agree with the authors of the 2006 memo that where a law is clearly unconstitutional under operative Supreme Court doctrine, Presidential non-enforcement is warranted. They also say that "the President should typically act in a way that promotes judicial resolution of the constitutional dispute between the political branches. The option of enforcement and then a refusal to defend should always be carefully considered as a default rule."

But that option will often be unavailable in the most interesting cases, because there is no serious likelihood of the constitutionality of the contested provision coming before a court. The chief example in the Savage article is illustrative: Congress passed "a bill that expanded assistance to the International Monetary Fund and the World Bank while requiring the administration to pressure the organizations to adopt certain policies. [President] Obama said he could disregard the negotiation instructions under his power to conduct foreign relations." Here we have a case of the President asserting the right not to comply with a statutory provision, rather than asserting the right or duty not to enforce a statutory provision. It is hard to see how anyone would have standing in court to argue that the President has gotten it wrong.

The 2006 memo also elides a crucial question about judicial exclusivity in constitutional interpretation. In arguing that the President ought, as a general matter, make judicial resolution of constitutional issues possible by, for example, enforcing then not defending statutes, the memo's authors appear to suggest that the President will then accept the judgment of the courts. But if so, then their repeated praise for President Jefferson's decision not to enforce the Sedition Act is puzzling. They ask rhetorically: "Should Jefferson really have permitted sedition prosecutions to continue?" Well, if Jefferson had followed what they regard as the "typical" approach--enforcement then non-defense--he would almost certainly have been told by the Federalist-dominated courts that the Sedition Act was constitutionally valid. What then? Should he have then refused to enforce the Sedition Act anyway? And if so, what was the point of submitting the issue for judicial resolution in the first place?

The most outrageous of the Bush signing statements asserted Presidential powers that would very likely have been rejected even by the Rehnquist and Roberts Courts. But does that make these propositions "false" in a non-political sense? President Clinton once asserted the power not to defend a provision of a military spending bill that required the discharge of HIV-positive service members, claiming that the provision denied equal protection. Yet it is pretty clear that given the courts' deference to the political branches in military matters and legal doctrine holding disability not to be a suspect classification, the provision was probably constitutionally valid as far as the courts were concerned.

At the time, I nonetheless thought that Clinton did the right thing, and so do the key legal actors now in the Obama Administration. But the experience of the Bush Administration showed that allowing the President to assert the unconstitutionality of legal provisions the courts would uphold can lead to serious abuse. The Obama lawyers want to say that the current situation is different because they're right about the Constitution whereas the Bush Administration was wrong. However, where the measure of correctness is not a court decision, it's not clear how they can persuasively make that claim in the court of public opinion.

I would thus conclude with two observations:

1) Here, as elsewhere, Bush Administration overreaching may have weakened the Presidency.

2) The Obama legal team still does not seem to have fully grasped how what they regard as important but subtle distinctions between Obama policies and Bush policies--e.g., "prolonged" detention versus "indefinite" detention; an independent Presidential power of constitutional interpretation to reach "correct" results but not "incorrect" results even where there is no final arbiter of correctness--are, in the public mind, and with some justification, overwhelmed by the larger similarities.

Posted by Mike Dorf

Brian Leiter's Curiosity Killed the Cow

Brian Leiter has reported the results of his poll about attitudes towards veganism (parodied by me here), along with his own view. He says, wait for it . . . wait for it . . . vegans should be tolerated but they're making a moral mistake. Why? According to Leiter, because most non-human animals "live in the moment," and so using them in ways that don't cause them to suffer pain does them no harm. Here is a brief response:

1) There is very little evidence that non-human animals with central nervous systems in fact "live in the moment," nor is it even clear what that could mean, as time as experienced by living beings is not quantized. Even so-called "momentary" pains and pleasures have extension over time. In any event, Leiter appears to concede that it is an empirical question which animals fall on the "live in the moment" side and which fall on the extended consciousness side with humans and elephants. But given the common ancestry of complex organisms on Earth (unless Leiter is endorsing creationism), and given what anybody who has ever had a dog knows about how the dog will anticipate the arrival of persons to whom the dog is attached, it would be surprising if the sorts of animals commonly consumed for food--cows, pigs, chickens, fish, etc.--"lived in the moment."

2) Even if we were to grant that most animals commonly consumed or exploited for food and other products live only in the moment, and therefore that the only interest they have is that we do not make them suffer, that concession would lead to something very much like veganism. I know quite a few vegans who say that they would not, in principle, be opposed to using animal products such as eggs and milk, or even opposed to killing and eating animals if they were used and slaughtered painlessly. That happens not to be my view (because I think it quite clear based on most of what science teaches about animal behavior that the relevant animals do not "live in the moment") but I respect and understand the view: The truth is that the vast majority of animal products offered for consumption in the United States and beyond are the result of enormous animal suffering. If you doubt that there is an enormous amount of animal suffering produced by the animal industry, you can see a tiny fraction of it documented here. And if you think that none of this applies to the animals that are treated relatively better than those on factory farms, look here.

3) Leiter makes other arguments against veganism, all of which are addressed in a vast literature (very briefly described here) with which he appears to be unfamiliar. If he were familiar with it, he couldn't possibly make the claim that vegans do not "have any arguments that can appeal to shared background attitudes." Nearly ALL of the animal rights literature appeals to shared background attitudes, especially the very one with which Leiter begins:
"Since animals are sentient, it seems there ought to be a moral obligation not to inflict gratuitous pain and suffering on them." The claim of ethical vegans, based in actual facts as opposed to speculation about hypothetical animals hypothetically used or killed by hypothetically painless methods, is that nearly all of what humans purposely do to animals for food and clothing inflicts gratuitous pain and suffering.

4) In the end, what appears to drive Leiter's annoyance with vegans is resentment: He resents what he takes to be an attitude of moral superiority by vegans. I can't speak for all vegans, but for myself, I disclaim such an attitude. Of course the facts and arguments that led me to become a vegan are facts and arguments about animal wellbeing, not about animal-wellbeing-as-it-relates-to-Michael-Dorf, and thus when I conclude that I have a moral duty to be a vegan, I think that everyone has such a moral duty. But that doesn't mean that I look down upon non-vegans or think they are evil. I used to be a non-vegan and I have enormous fondness and respect for a great many non-vegans. I can even say that most of my friends are non-vegans. It is simply an inevitable fact of living in a pluralistic society that people will hold different views about what is morally permissible, and not just about superogatory duties but about obligatory duties as well. In older language, I hate the sins, not the sinners. I also understand that the sinners believe they are not sinners and they believe that I am making a mistake. My response is to try to live my life as I believe I ought to. I've had better luck doing that as a vegan than in other respects. For example, I'd like to be able to drive less and give away to those who need it more of what I have than I do. When I'm challenged about my veganism (as vegans almost invariably are when, for example, eating with non-vegans) I try to patiently explain why I am a vegan (and, okay, to mock Leiter's poll and occasionally engage in what is likely counter-productive sarcasm, but that's just because in addition to being a vegan, I'm also a wiseguy).

Posted by Mike Dorf