Some thoughts on your latest post

It has been slow on the blog! Some excuses: (1) work; (2) attempts at scholarship; (3) summer associate events.

You ask "why should we structure society around an unreviewable appointed oligarchy of lawyers . . . with a mandate to pursue generalized 'high politics'?" Easy answer: we shouldn't. You are just setting up a straw man. The real question is which fundamental rights the judiciary should protect against majoritarian rule, and which it should not.

What I find dispiriting about this discussion is its circular, degenerative logic. You argue for a narrow construction of certain rights (like reproductive rights), and a broader sphere of other rights (like property rights). You deny that your constitutional line drawing is connected, in any way, to how you would vote on these issues as a legislator, while arguing that my constitutional line drawing (and those of judges I agree with) makes me into a believer in judges as super-legislators. You deny that my constitutional arguments are principled or moral, stating that cases I would agree with (like Stenberg) are like cases that only evil people agree with (Dred). You believe that because women have the right to vote, they theoretically have the ability to control distribution of political goods, despite practical evidence to the contrary. When confronted with an argument that your position represents a self-contained, ideological, reaction to a perceived (or actual) sense of victimhood, you protest that you are not mentally imbalanced, or that if you were, so was the Civil Rights movement. This was not the point. Not even close. [Fn*]

Sigh. I'm not going to continue to engage in this particular debate. I'd rather turn to a more profitable discussion of the latest cases, including, as you mention, the one paragraph "holding" in Chavez. Now that could be a fun case note topic for a young law student with time on her hands.

[Fn*] I urge you to actually read the original fantasty ideology article .

More on Formalism and the Rule of Law; Notes From a Slightly Big Week on the Supreme Court

PLAINSMAN: It's been slow on this blog, hasn't it? I am going to pick up the neoformalism thread briefly, offering a rejoinder to D.'s last post. Then I want to talk about the recently decided Martinez and Hibbs cases.

I. Neoformalism.
(1) I'm not too daunted by the argument from history, even on its own terms. Lots of the good 20th century social developments that courts have blessed using free-form jurisprudence would have happened anyway. Take Balkin's own example of sex discrimination law. Women are the majority of the electorate, for heaven's sake! And the Nineteenth Amendment, which conferred that status on them, got passed without the need of any extratextual pronouncements from the Supreme Court. (This was back in the days when we used to amend the Constitution when it needed changing.) Lots of other developments produced by free-form jurisprudence are dreadful (Lochner; Dred Scott; Stenberg v. Carhart), and the argument from history either has to take up responsibility for them or forfeit its explanatory power.

(2) Such an argument, I insist, also misallocates the burden of justification. Folks on my side of the jurisprudential aisle can offer a persuasive normative justification, in terms of our theory, for the existence of an independent federal judiciary today. See, e.g., Prof. Solum's comments about ensuring the rule of law. We are still waiting for antiformalists to face up to the bar and provide the same for their view of the judiciary. Why should we structure society around an unreviewable appointed oligarchy of lawyers with a mandate to pursue generalized "high politics"? I can see why we lawyers like that view, but I should have a hard time defending it in plain terms to a popular audience. (I'd feel much less at sea arguing for a constitutional monarchy a la Hanoverian England, for example.) So, even if, hypothetically, yours is an accurate account of our history, the sensible response to it would be "let's change our ways!" Especially since we turn out to have a certain elegantly written document before us ... thoughtfully amended over the years (except for that Prohibition nonsense ;)... that might serve us as a workable formal charter.

I must also note that I am dismayed by the argument, which you've touched on a couple of times, that conservative legal reformers are pursuing a "fantasy ideology" and are gripped by a "fantasy view of the world." This leaves a bad taste in the mouth. I express doubt about the vast expansion of federal criminal law, and suggest that it should be mostly up to the states to criminalize conduct. I argue that the First Amendment protects traditionalist organizations like the Boy Scouts of America and the Good News Club from certain kinds of harassment and interference by legislatures. There are precedents and arguments for these positions. Why does this prompt a run to the DSM-IV to diagnose "fantasies"?

In the political realm, one could have said the same thing to civil rights reformers in the 1950s. A great distance separated the point where they started from the point where they wanted to end up. Were their goals and moral arguments therefore to be characterized as "fantasy"? The possible is broader than the actual. And a principled restoration of the Commerce Clause -- "tempering" our jurisprudence, as Justice Thomas puts it -- would involve far less upheaval than that.

I think there is a temptation among contemporary liberals to resort to the "fantasy" response. It ought to be strongly resisted. Not to get all Allan Bloom here, but it seems to me to be part of the discreditable cultural legacy of thinkers like Freud, Marx, and the Frankfurt School. Conservative views are pathologized, not engaged on the merits.

II. The Supreme Court's Recent Doings.
(1) I thought I might have to do a big post on Chavez v. Martinez, but the Supreme Court got me off the hook by not holding much of anything in the case, even though the nine Justices punched out half a dozen opinions between them.

OK, that's not entirely true, but the Court signally failed to issue a unified majority opinion. As those who've read Howard Bashman's summary will know, the Court did agree to remand the case to the Ninth Circuit, which will now decide whether Martinez has a damages claim under the Due Process Clause against officers who interrogated him without a lawyer after shooting Martinez for (perhaps) resisting arrest.

The Court also rejected Martinez's claim for damages under the Fifth Amendment. However, there was disagreement on how to analyze this claim. Justice Thomas (with three other votes) would have simply held that there's no violation of the Fifth Amendment's self-incrimination clause unless an illegally procured statement is introduced at trial against the speaker, which Martinez's statements were not. Justice Souter (with Breyer) was more guarded. He too rejected Martinez's Fifth Amendment claim, but viewed it as implicating a possible "prophylactic" rule that Justice Thomas's opinion did not consider.

(2) Also this week we got Nevada v. Hibbs, the Term's big Eleventh Amendment case. The Court held, 6 to 3, that Congress, using its 14th Amendment enforcement power, had validly abrogated the states' 11th Amendment immunity to private suits brought by employees under the Family and Medical Leave Act of 1993. Some think Hibbs is big news because the Court had previously issued a series of opinions holding that various federal benefit or antidiscrimination statutes did not validly overcome the states' immunity from suit.

I was not surprised by Hibbs. The Court viewed the FMLA as a sex discrimination statute. It's pretty clear, in turn, that the Court views the prohibition of improper race and sex discrimination as a central part of the meaning of the Equal Protection Clause, in a way that protecting the aged or disabled, for example, is not. Professor Balkin makes the same point in his interesting discussion of various factors that might have made the difference in Hibbs.

Prof. Balkin devotes more effort in coming up with Realpolitik explanations for the case than I think is merited. Chief Justice Rehnquist's vote in Hibbs should not surprise anyone who remembers that Rehnquist himself authored Fitzpatrick v. Bitzer (1976), the very case which recognized Congress's Fourteenth Amendment power to override Eleventh Amendment immunity with respect to ... federal sex discrimination statutes! As Prof. Balkin concedes, you can't easily explain Hibbs on "pure prudentialism" grounds. "[Why would] the hostile reaction [from holding FMLA inapplicable to state governments] be importantly different from that produced by the decisions in Bush v. Gore, which decided a presidential election [sic], or United States v. Morrison, which struck down the Violence Against Women Act?," he reflects.

I do agree with Prof. Balkin, though, that Chief Justice Rehnquist's majority opinion in Hibbs is notable for the tolerant attitude it takes toward the factual record of state discrimination that Congress compiled to support extending FMLA to the states. Rehnquist exhibited a more skeptical attitude toward the Congressional factfinding in Garrett (11th Am. disability case).

The practical upshot of Hibbs seems clear. Article I powers can't override the Eleventh Amendment immunity. The Fourteenth Amendment's enforcement power can override state immunity, but only as to legislation that addresses race or sex discrimination. (Though cf. Morrison.) Despite the continuing controversy about the legitimacy of the Rehnquist Court's state sovereign immunity jurisprudence (and notice how Justice Souter et al. concurred separately in Hibbs to point that they still don't buy any of this Seminole Tribe business), it must at least be said that Rehnquist et al. have carved out a fairly clear body of sovereign immunity law. It displays the virtues of clarity and internal rationality to a tolerable degree.

So have I become a Seminole Tribe convert? Nope. The text is too clear. It won't bear the weight. I think Justice Stevens's Hibbs concurrence gets it right:

"The plain language of the Eleventh Amendment poses no barrier to the adjudication of this case [...]. The sovereign immunity defense asserted by Nevada is based on what I regard as the second Eleventh Amendment, which has its source in judge-made common law, rather than constitutional text. Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (Stevens, J., concurring). As long as it clearly expresses its intent, Congress may abrogate that common-law defense pursuant to its power to regulate commerce “among the several States.” U.S. Const., Art. I, §8. The family-care provision of the Family and Medical Leave Act of 1993 is unquestionably a valid exercise of a power that is “broad enough to support federal legislation regulating the terms and conditions of state employment.” [...] Accordingly, Nevada’s sovereign immunity defense is without merit."

* * *

[testing. never mind.]

D:
Time's Arrow

First: More judicial restraint from the Hon. J. M. Kelly in Bizarre Foods v. Premium Foods (E.D.Pa. 2003). Ruling on a motion for sanctions under 28 U.S.C. Sec. 1927, he once again refrained from saying anything about the parties' great names, despite ample opportunity to do so. Read the short opinion here.

Something mildly more substantive: It is too early for me to dive right into neoformalism. For in depth discussion, go here and here. I am interested in responding, however, to P's interesting point regarding the burden of proof. P writes: is the argument about past cases an attempt to change the topic from whether it is now normatively desirable for federal judges to govern their work with the new formalism? Can one simply apply to the new formalism Justice Scalia's remark about originalism: that it "will make a difference ... not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones"?

Good point, P! Balkin is (in this part of his argument) shifting the burden to Solum to justify the past in order to rule the future. This is a predictable move, and it makes some sense. For, as you know, Solum's theory must satisfy two conditions to be normatively satisfactory. It must be morally defensible, and it must be capable of implementation. The critique that neoformalism would not have led to the civil rights revolution is powerful on both of these fronts. First, it takes something that most people think is a great social good (i.e. the civil rights revolution) and says that your theory would not produce it. Solum's response (that the revolution might have been happened anyway, but it would have been political - e.g. through the ERA) is weak in the way that all counterfactual history is weak. Sure, the ERA might have passed, but on a going forward basis, isn't it better a system that we know has a track tested record of producing moral results?

Solum's counterfactual response also highlights a practical problem with neoformalism - the stare decisis issue. Solum says, I think, that stare decisis could compel neoformalist judges to adhere to these past precedents (morally just, but methodologically indefensible). However as I have previously pointed out, Judges in the States would have a very hard time using stare decisis in this way over any extended length of time. Which means that inevitably, neoformalism means rolling back the civil rights revolution. In addition, putting such weight on stare decisis in constitutional cases tends to reinforce the unelected judiciary's power (which is ironic, as Balkin points out, because the point of neoformalism is superficially to do just the opposite).

The point is that Scalia's (and you) attempt to escape history, but can not. It reminds me of a S.J. Gould Book called Time's Arrow/Time's Cycle, arguing that people are confused when they equate forward progress through time as suggesting inevitable evolutionary progress. If you ran evolution again, the result would not be the same - it might not even be close. [Sort of] similarly here, Solum suggests that we can progress forward into a new branch of legal theory without the encumbrance of past events; we can start anew after burning out the brush of past bad theories. But in my view, past (bad?) theories produced great results, and you can't clear out the brush without chopping down the trees. And so the burden should be on the neoformalists to justify themselves to the past, the present and the future.

Whew, too many mixed metaphors. See, I told you that it was too early in the morning for substantive conversation!

Explosion at Yale Law School

PLAINSMAN: Good Lord. Witness on the ground floor reported seeing a fireball leap halfway down a hall.

No injuries reported so far. I pray that will stay true. To the Yale Law bloggers out there: post when you can; we'll all be relieved.

UPDATE (5/22): No one was hurt; not too much damage. It's said it was a pipe bomb.

* * *

PLAINSMAN: Excellent. Over to you, then, D. I'm going to lay low until Thursday night at least. (Here it's all editing, all the time.)

* * *

D:

No substance from me either today. It is all discovery, all the time. Tommorow I promise to write something about P's excellent post. Note, I don't link to P's post. That's because this blog's infrastructure is clearly on its last legs. However, we can still produce some good substantive discussions despite our technical shortcomings. I am particularly interested in discussion the P/Solum counter-attack regarding the burden of proof in normative scholarship.

Two Paths Diverged in a Wood, etc.

PLAINSMAN: Argh. Expect no substance from me today. But I sure do like reading Jim Lileks on certain mornings:

"I would like a nap now. ... Or I could make some coffee. Each option has its own benefits and drawbacks. The drawback of a nap: it does not taste like coffee. The drawback of coffee: lacks the soft surcease of one’s cares. But both go well with whiskey. Call it a draw."

* * *

More Dots and Dashes on Neoformalism

PLAINSMAN: Very good stuff. I have to be quite brief, but I recognize that this is inadequate to the issues raised.

Re: Prof. Balkin -- Without prejudice to Balkin's other examples, it's not true that neoformalism excludes the Civil Rights Acts and the New Deal. Remember, "neoformalism" is far, very far, from being some kind of synonym for "the olden days." Decisions like Lochner v. New York and Hammer v. Dagenhart belong to the anti-formalist hall of fame. The Civil Rights Acts regulate commerce, in a plain-meaning sense of the word (renting, employment contracts, public accomodations, etc.). So do the labor and securities laws, et al. The text of the Commerce Clause plus the Necessary and Proper Clause arguably gets you that much; see Gibbons v. Ogden. Certainly it is an account of the text that a neoformalist can accept. The point where neoformalism begins to bite is not at NLRB v. Jones & Laughlin; it's at Wickard. I challenge anyone to read the argumentation in the Wickard opinion and tell me how this is a disqualifying problem with neoformalism.

It's also untrue that a neoformalist couldn't arrive at Griswold v. Connecticut; I think she might. Griswold can draw justification from Anglo-American tradition, which I believe would come in as part of Solum's Principles Four or Five.

Re: D on stare decisis -- These are the right issues to ask about. This is why I think it's both important and tricky for formalists to fit stare decisis properly into their theory. Sometimes when you have a wrongly decided precedent X on the books, different formalist commitments can pull the judge in different ways. On one hand, the lack of textual warrant for X counsels against following or expanding it. On the other hand, if X seems to reflect a more general, underlying principle P, the commitment to rule of law and to avoiding politicized ad hoc decisions may counsel in favor of broadening X in future cases until it encompasses the full principle P. This is just the old "neutral principles" point from Wechsler's era; Prof. Solum has mentioned it in recent posts. Ceteris paribus, a real rule is better than judicial ad hocery.

I've opined before on this blog that the right of privacy furnishes an example of this. As a matter of jurisprudence a formalist may look askance at the later privacy cases after Griswold. Nevertheless, as long as a holding like Eisenstadt v. Baird is on the books, it is arguably most consistent with the rule-of-law virtues to extract a general principle -- here, something like "no criminalizing consensual sex acts" -- and thus to find for the petitioners in Lawrence v. Texas, the 14th Am. sodomy case. D. is right that formalism does not supply an algorithm that tells the judge which way she must go in this situation, but at least it provides her with a level of guidance more concrete than "do I believe the right asserted is fundamental?" or "Is an affirmance consistent with 'equal respect and concern for all persons'?" or some such.

Another example is Eighth Amendment proportionality review of noncapital sentences, which I discussed yesterday. I think Justice Scalia offered good originalist arguments in Harmelin that there's no such proportionality guarantee, though Justice White also made good originalist arguments in response. But even if I concluded Scalia had the better argument, it seems to me that, since the interpretive question isn't a slam dunk, it's perfectly reasonable to bow to stare decisis and accept Eighth Amendment review of prison terms, as I do. But I realize this is more by the way of an anecdotal response to D.'s point, not a general answer to it. In particular it does not answer the question of what to do when a precedent X is clearly improper, but there would be substantial (net) reliance costs in overruling or limiting it. Perhaps the answer is just "Use judgment. How improper is X? How large are the reliance costs?", but I would hope we could come up with an account that will guide judgment better than that.

Finally, an open question: are Balkin et al. exploiting an incorrect allocation of the burden of proof? Is the argument about past cases an attempt to change the topic from whether it is now normatively desirable for federal judges to govern their work with the new formalism? Can one simply apply to the new formalism Justice Scalia's remark about originalism: that it "will make a difference ... not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones"?

* * *

Neoformalism Brings Down the House; The Catch-22 of Stare Decisis
by D

While we mere mortals post, Balkin and Solum are firing nuclear sized hunks of argument at each other. Balkin's latest, in response to Solum's Neoformalist Manifesto, is devastating.
The money shot: "A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct."

Just so. Solum's neoformalist creed would render most of the last century's jurisprudence illegitimate. In its revolutionary allusion, Solum's title is therefore quite appropriate. Like Marx, Solum calls for the destruction of the status quo. I therefore have to disagree with the title of your recent post. Neoformalism is not "in the house"; Neoformalism looks at the house, and proceeds to burn it down and rip out its foundations. Afterward, Neoformalism, smoking a still lit cigarette, looks at the smoking rubble and disclaims: "I'm pure! I'm pure! Love me!"

As Balkin demonstrates, neoformalism it is not a practical theory of judging. It is, to return to a theme I advanced a few weeks back, a fantasy ideology.

One might fairly ask: does stare decisis render neoformalism pragmatic? To be blunt, no.


Suppose Solum says yes, all of those decisions were wrongly decided by my lights in the first instance, and therefore they are illegitimate, but stare decisis compels me to adhere to them. This sounds a great deal like the reasoning of a district or appellate court judge. It does not sound like something a Supreme Court Justice does. What is the Court to do, wave their collective disdainful hands over cases like Gideon for generations? Are they to continually say: "the gender equality cases were wrongly decided, but what's in the past is in the past, and we're locked on course now". Can we really require them to reason as follows: "A was wrongly decided. But we adhere to A. A logically compels X result in B. We therefore hold X, on the rationale that wrongly decided A compels us to". Yes, I'm sure this could happen in a dream world, in the lower courts, which are used to this kind of hierarchical decision-making. But it can't possibly provide a guide that helps the Nine make decisions, can it?

Neoformalism Is in the House; A Caveat on Stare Decisis

PLAINSMAN: In case anyone reading doesn't know, the place to be right now is over at the Legal Theory Blog, where Professor Solum, following up one of his earlier posts, has presented "A Neoformalist Manifesto." In the necessarily brief compass of a blog post, he gives a valuable sketch of the contemporary school of jurisprudence to which he (and I) most strongly give assent. For the most part I think Solum is carrying the ball magnificently; as you'll see below, I have only one criticism of his formulations.

As he writes, "[n]eoformalism is an attempt to craft a normative theory of judicial practice that answers to the values that we summarize with the phrase the rule of law. ... Instrumentalism (or legal realism in its instrumentalist form) is simply not up to the task of fully realizing the very great values we associate with the rule of law. In a nutshell, instrumentalism leads to politicization and over time, the politicization of the judiciary will inevitably undermine the rule of law." These are, indeed, the key issues.

Go check out the whole discussion, including this critical post by Prof. Balkin, which spurred Prof. Solum to present his "Manifesto."

Balkin raised one question in particular that formalists should reflect on in refining their philosophy. What is the correct relation between formalist jurisprudence and stare decisis? Prof. Solum thinks a stiff doctrine of stare decisis is part and parcel of formalism. Indeed, he assigns it a commanding position in the structure. He summarizes his neoformalist philosophy of judging as a series of lexically ordered principles -- i.e., each principle must be satisfied before the judge can consider the next one. The series begins with:

"Principle One, Precedent: Judges in constitutional cases should follow an adequate and articulated doctrine of stare decisis. Among the features of such a doctrine is that even courts of last resort (i.e. the United States Supreme Court) should regard their own decisions as binding, unless there is a compelling reason to do otherwise."

After satisfying stare decisis, we bring to bear the tools of correct interpretation:

"Principle Two, Plain Meaning: When the precedents run out, judges should look to the plain meaning of the salient provisions of the constitutional text.

Principle Three, Intratextualism and Structure: [...]

Principle Four, Original Meaning: [...]."

Prof. Balkin responds to this series of principles as follows (I have added Solum's numbers for clarity):

"It's not at all clear to me why [1] precedent trumps [2] 'plain meaning', why both of these trump [3] structural considerations, and why all of them together trump [4] original understandings."

A good point. I actually think it's pretty easy to defend Solum's rank ordering of the principles of textualism ([2], [3], and [4]) with respect to one another. They correspond to the way courts approach the interpretation of contracts and other legal texts. But the critique of the lexical priority given to [1] is tougher to address. Why should stare decisis enjoy a lexical priority over basic norms of textualism?

In fact, this is a controversial issue among formalists. At one end of the spectrum, scholars like Gary Lawson have argued that the use of stare decisis in constitutional cases is downright illegitimate. See Lawson, "The Constitutional Case Against Precedent," 17 HARV. J.L. & PUB. POL'Y 23 (1994). And among the various prominent judges who seem to adhere to all or much of the formalist philosophy (think Scalia, Thomas, Easterbrook, etc.), one of the biggest differences is the amount of weight each gives to stare decisis. Justice Thomas, for example, is closest to Lawson's position: he gives far less weight to Solum's principle [1] than does Justice Scalia or Solum himself.

An example of the controversy. A striking example can be found in Justices Scalia and Thomas's separate concurrences in Ewing v. California (2003), the recent "three strikes" Eighth Amendment case. A bit of background is needed. In Solem v. Helm (1983), a majority of the Supreme Court held that the Eighth Amendment requires federal courts to review and strike down prison sentences that are grossly disproportionate to the crime. In a later case, Harmelin v. Michigan (1991), Scalia wrote a separate opinion arguing, on originalist grounds, that Solem was wrong: the Eighth Amendment contains no proportionality principle applicable to prison sentences. However, Scalia's position did not prevail in Harmelin; the proportionality guarantee was upheld (though somewhat modified).

Twelve years later, the Court heard Ewing, its next case to raise an Eighth Amendment challenge to a prison sentence. Scalia wrote a brief separate opinion stating that he still refused to recognize any noncapital proportionality guarantee. He acknowledged that it would normally be proper for him to bow to stare decisis in light of the decisions in Solem and Harmelin. However, he viewed the principle enunciated in Solem as incapable of being "intelligently appl[ied]" -- no real principle at all -- and thus did not feel bound to follow it.

But Justice Thomas went further than that. His brief opinion suggested that Solem's extraction of a noncapital proportionality guarantee was such an extreme violation of proper constitutional interpretation -- i.e., of Prof. Solum's principles [2] through [4] -- that even if it were "[c]apable of judicial application," the decision still would not be entitled to stare decisis effect.

Justice Thomas went too far in Ewing: Solem and Harmelin's interpretation of the Eighth Amendment was by no means indefensible. Stare decisis is a pragmatic doctrine of massive importance; it does a great deal to ensure the stability of the legal system. But I think a sustainable formalist jurisprudence must recognize stare decisis as only presumptively dominant among the principles Solum lists.

Why formalists should think hard about the lexical privileging of stare decisis over textualism. The strongest argument for the view that principle [1] should be subject to override by simple textualism in extreme cases is that otherwise there are few sanctions against judges who want to issue politicized decisions. Under Solum's position, if disobedient judges think they can cobble together a majority in a particular case for a desired result that is inconsistent with Solum's rule-of-law principles, they have no reason not to try to do so; after all, once they succeed, the bad decision is on the books, and the lexical application of principle [1] will insulate it from ever being overturned unless some "compelling reason" (like a change in social facts, I suppose?) happens to intervene. By contrast, if gross failure to "follow the rules laid down" is itself a possible ground for denying respect to a precedent, then would-be defecting judges may be deterred by the unpleasant prospect of witnessing the public overruling of their prize handiwork, at some point down the road, as not merely obsolete, but actually "illegitimate when decided." (Think of Justice Blackmun's intensely proprietary attitude toward Roe v. Wade in later life. I know many will strenuously dispute whether Roe was a gross failure of the kind I'm describing, but I do believe Blackmun's fear and defensiveness were partly of this nature.)

Put it another way. Solum's formulation of stare decisis states that precedent may be subject to overruling when there is "a compelling reason to do otherwise." I agree, but I think we must acknowledge that the fact that a previous decision is truly unfounded -- i.e., it flagrantly violates the norms of constitutional interpretation represented by Solum's principles [2] through [4] -- could by itself be a sufficiently "compelling reason" to override principle [1] on infrequent occasions.

Maybe this is exactly what Prof. Solum means. As he pointed out, the best he can do in a blog post is to provide an overview of his position. I hardly like to trump up a dispute where none exists, especially since I agree with Prof. Solum in so many other respects. But if Solum agrees with me, then what he offers isn't a true lexical ordering of principles, because the lower-ranked principles can trump the highest-ranked one on some occasions.

PS: I think Justice Scalia recognizes the tension I'm describing here. He has written: "Stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it."

* * *

This Post is Called "Benjamin Cardozo"
(Parental Advisory: Some Explicit Lyrics)

PLAINSMAN: So, as I noted before, the Sixth Circuit handed down its opinion this week in Parks v. LaFace Records, No. 99-2495, holding that Rosa Parks stated triable claims under the Lanham Act (the federal trademark statute) and the Michigan common-law right of publicity against the rap group OutKast, who put out a hit single, "Rosa Parks," that was not authorized by Ms. Parks and that has only a tenuous connection to her or her life. I want to consider the First Amendment issues raised by the case, and along the way, perhaps, to offer some thoughts about contemporary hip-hop.

But first let me observe that the Parks opinion, written by a district judge sitting by designation, was issued a full two years after oral argument. I know the Sixth Circuit has had serious manpower problems in recent years (that's why it has many judges sitting by designation), but that's an awfully long time to keep the litigants waiting. OutKast's single is now five years old. The case is a substantial and interesting one, but not of extraordinary complexity by the standards of federal litigation. Hopefully the recent addition of new personnel to that court will reduce such delays. OK, on to the issues.

I. The Song. OutKast's single "Rosa Parks" includes one verse by each of its two rappers: first, a largely unstructured series of rhyming boasts by Big Boi, then a more linear anecdote from Andre on the importance of keeping one's skills fresh. Neither verse makes any explicit or implicit reference to Rosa Parks.

I need to wheel out the old "fair use" doctrine in order to discuss the case intelligently. So here is Big Boi's verse in full:

Many a day has passed, the night has gone by
But still I find the time to put that bump off in your eye
Total chaos, for these playas thought we was absent
We takin another route to represent the Dungeon Family
Like Great Day, me and my n***a decide to take the back way
We stabbing every city then we headed to that bat cave
A-T-L, Georgia, what we do for ya
Bull doggin hoes like them Georgetown Hoyas
Boy you sounding silly, think my Brougham aint sittin pretty
Doing doughnuts round you suckas like then circles around titties
Damn we the committee gone burn it down
But us gone bust you in the mouth with the chorus now

And here is Andre's verse:

I met a gypsy and she hipped me to some life game
To stimulate then activate the left and right brain
Said "baby boy you only funky as your last cut
You focus on the past your ass'll be a has what
Thats one to live by or either that one to die to
I try to just throw it at you determine your own adventure,
Andre," got to her station "here's my destination"
She got off the bus, the conversation lingered in my head for hours
Took a shower, kinda sour cause my favorite group ain't comin with it [i.e., made a bad record]
But I'm witcha you cause you probably goin through it anyway
But anyhow when in doubt went on out and bought it
Cause I thought it would be jammin but examine all the flawsky-wawsky [flaws]
Awfully, it's sad and it's costly, but that's all she wrote
And I hope I never have to float in that boat
Up s**t creek; "it's weak" is the last quote
That I want to hear when I'm goin down, when all's said and done
And we got a new joe in town
When the record player get to skippin and slowin down
All y'all can say is "them n***as earned that crown," but until then . . .

And preceding and following each verse is the hook or chorus, which makes the ostensible connection to Rosa Parks:

Ah ha, hush that fuss
Everybody move to the back of the bus
Do you wanna bump and slump with us
We the type of people make the club get crunk [i.e., hyped up, excited]

(emphasis added).

The single, which apparently features some interesting instrumentation (such as the harmonica), was a big hit. In interviews, OutKast stated that they "never intended for the song to be about Rosa Parks or the civil rights movement." But they added that the title was "symbolic, meaning that we comin' back out [with new material], so all you other MCs move to the back of the bus."

II. The Litigation. Rosa Parks objected to the title of the song and sued OutKast. Parks's complaint noted that she has used her celebrity in the past to promote books, television programs, and civil rights causes, and has lent her name to an authorized musical release -- a collection of gospel recordings presented as "A Tribute to Mrs. Rosa Parks." Parks claimed that OutKast's unauthorized use of her name threatened to mislead consumers, infringing her property rights in her identity in violation of the Lanham Act. She further claimed that OutKast made an exploitative commercial use of her identity in violation of the Michigan common-law right of publicity. (Her complaint also asserted a defamation claim and other state-law counts, but those counts were dismissed for reasons unrelated to the First Amendment, so I'll ignore them.)

The federal district court dismissed all of her claims, holding that OutKast had a dispositive defense to liability under the First Amendment. Essentially, the district court thought the "back of the bus" reference in the song's chorus was enough to confer First Amendment protection on the title. It held that "defendants' use of plaintiff's name, along with the phrase 'move to the back of the bus,' is metaphorical and symbolic." Since "the title 'Rosa Parks' is not 'wholly unrelated' to defendants' song," the First Amendment barred any right of publicity claim based on the title, in the district court's view. Moreover, the district court reasoned, "the direct artistic relevance between the title 'Rosa Parks' and the content of defendants' song [was] so obvious that the matter is not open to reasonable debate," which also gave OutKast a First Amendment defense to the Lanham Act.

However, the Sixth Circuit reversed the district court in relevant part and remanded Parks's right of publicity and Lanham Act cases for trial. The court began bt canvassing the various approaches other federal courts have taken to the First Amendment issues in play. It then stated that it was choosing to adopt the same standard that the district court had followed -- the relatively speech-protective standard developed by the Second Circuit in Rogers v. Grimaldi (2d Cir. 1989).

Under the Rogers standard, the test for both the Lanham Act claim and the right of publicity claim was basically the same: The First Amendment shields a song title against liability unless "(1) the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless (2) the title explicitly misleads as to the source or the content of the work."

Applying this standard, the Sixth Circuit acknowledged that the title "Rosa Parks" could not be viewed as "explicitly misleading" customers as to the source of the work under prong (2): OutKast didn't title their song "The True Life Story of Rosa Parks," for example. But the Sixth Circuit held that reversal was necessary because there was a triable issue of fact as to whether the title failed prong (1) of the Rogers test. In other words, it was not clear that the title "Rosa Parks" had "any artistic relevance to the content of the song."

The Sixth Circuit stated that "[w]hile Defendants' lyrics contain profanity and a great deal of explicit language ... they contain absolutely nothing that could conceivably, by any stretch of the imagination, be considered, explicitly or implicitly, a reference to courage, to sacrifice, to the civil rights movement or to any other quality with which Rosa Parks is identified." And the court reasoned as follows:

"It is true that the phrase 'move to the back of the bus' is repeatedly used in the ... chorus of the song. When the phrase is considered in the context of the lyrics, however, the phrase has absolutely nothing to do with Rosa Parks. ... The composers did not intend it to be about Rosa Parks, and the lyrics are not about Rosa Parks. The lyrics' sole message is that OutKast's competitors are of lesser quality and, therefore, must 'move to the back of the bus,' or in other words, 'take a back seat.' We believe that reasonable persons could conclude that there is no relationship of any kind between Rosa Parks' name and the content of the song -- a song that is nothing more and nothing less than a paean announcing the triumph of superior people in the entertainment business over inferior people in that business. Back of the Bus, for example, would be a title that is obviously relevant to the content of the song, but it also would not have the marketing power of an icon of the civil rights movement. ... [T]he fact that the phrase ['move to the back of the bus'] is repeated ten times or fifty times does not affect the question of the relevancy of the title to the lyrics."

III. Some Thoughts. Set aside whether the standard in Rogers is in fact the right standard for evaluating First Amendment defenses in the Lanham Act context. Given that the Sixth Circuit expressly adopted that standard in Parks, I think it can be seriously questioned whether the court followed it correctly. The test is supposed to be whether the title has "[any] artistic relevance to the underlying work whatsoever." Clearly, OutKast's title does -- Rosa Parks once famously refused to move to the back of a bus, and that is what OutKast are telling their competition to do in the song's chorus.

I find disturbing the opinion's suggestion that OutKast failed to win summary judgment because they chose to refer to a quality of Rosa Parks -- her famous connection to the back of a bus -- that the court considered less essential than other qualities the court perceived in her, namely "courage," "sacrifice," and "the civil rights movement." The Rogers test would seem to ask simply whether some connection exists between song and content, not whether it's an apt or an insightful connection. Indeed, the whole tendency of modern First Amendment doctrine is against having courts pass judgment on the "skill or clumsiness, [the] sensitivity or coarseness" of artistic speech, to quote a New York case that the district court relied on below.

The Sixth Circuit got tangled up in asking whether OutKast's chorus included "metaphorical and symbolic" content. In truth, the title is not a metaphor or a true simile: it is an example of a different figure of speech, metonymy, "in which one word or phrase is substituted for another with which it is closely associated."

Metonymy is all over the place in rap. Lots of lines that look at first like similes ("A like B") are actually metonyms: the likeness between B and A doesn't shed a great deal of additional light on A or B, the one is just a loose way of calling to mind the other. Some random examples that come to my mind: "I rock jams like Santana" (Redman); "yo, I'm above the law like Steven Seagal" (Redman again); "watch me stab up the track as if my name was OJ Simpson" (A Tribe Called Quest).

In fact, I can think of at least one prior use of Rosa Parks herself in rap metonymy: there's a couplet by Chino XL in "Many Different Ways" which states that, if something or other hadn't happened, Chino wouldn't (pardon me) "have to send all y'all n***az to the back seat like f***in' Rosa Parks."

Nothing in particular against either Redman or Tribe (Chino I find annoying), but it has to be said that metonymy of this kind is a lot easier to devise than more detailed symbolic language, such as the following, remarkable extended metaphor from the late 1980s "Golden Age" of rap:

Follow me if you were thinking you were first
Let's travel at magnificent speeds around the universe
What could you say as the Earth gets further and further away?
Planets are small as balls of clay
Astray into the Milky Way, worlds out of sight
As far as the eye can see, not even a satellite
Now stop and turn around and look
As you stare in the darkness, your knowledge is took
But keep starin', soon, you suddenly see a star
You better follow it 'cause it's the R

(Eric B. and Rakim, "Follow the Leader"). Or this genuinely illustrative simile from the same song:

I'm everlasting, I can go on for days and days
With rhyme displays that engrave deep as X-rays.

So is the Sixth Circuit's opinion performing a balancing test of figures of speech, saying that simple metonymy is lower-valued speech than metaphor, true simile, or critique, and therefore enjoys less First Amendment protection? In other words, if your song merely includes an oblique name-check of Rosa Parks, this might not be enough of a basis to permit you to title your song after her without her permission, whereas if you wrote a song critical of Rosa Parks, such a title clearly would be protected speech?

This may or may not be the right approach to the issues; I express no opinion about that or about the result in Parks. But I think the Sixth Circuit's opinion is hard to square with the approach it said it was following.

Another issue that occurs to me: the very tenuousness of the connection between Rosa Parks herself and the content of OutKast's rhymes might be one reason they chose to title it "Rosa Parks" -- the very obliqueness of the reference makes it kind of funny, though admittedly not exquisitely tasteful. Is that kind of joke an artistic statement that is entitled to First Amendment protection? Punk rockers used to do stunts like this all the time with titles. The famous rock critic Lester Bangs once suggested that the Sex Pistols should really have titled their debut album Eric Clapton. "Think of the insult," wrote Bangs. See what I mean?

PS: I just thought of another, even purer example of name checking. Consider the lead song off A Tribe Called Quest's fine 1993 album Midnight Marauders, which is titled "Steve Biko (Stir It Up)"? It offers a remarkably close parallel to OutKast's "Rosa Parks" -- it's a good-natured boasting song that makes no reference whatsoever to the South African activist, except for the chorus, which goes "Stir it up / Steve Biko." Biko died a long time ago, of course. But in theory, would Q-Tip and Phife be in trouble under the analysis used in Parks?

* * *

Judicial Restraint

There is a great deal of what I consider to be meaningless talk about Judicial Restraint around the blogosphere. The talk is meaningless because the term lacks definition. In order to bring some order to this problem, I propose the following definition. Judicial Restraint is defined by Judge J. M. Kelly of the Eastern District of Pennsylvania, writing his recent personal jurisdiction opinion in the nicely captioned action Bizarre Foods v. Premium Foods without any puns. Not one, not even a "plaintiff's argument here is not bizarre, but it sure is wrong" that screamed to be written.

That is restraint.

Beginning To See the Light *

PLAINSMAN: Permit me a simple pointer post. Stanley Kurtz of NRO directs a fine suggestion today to the management of the Washington Post. Some have greatness thrust upon 'em...

* Velvet Underground reference in honor of Friday.

* * *

Reading List

According to a very odd webpage, if you are a reader of this blog, you should also go to these sites. One of those recommended sites is the so-called "Diamond Blog" P, little did you realize that your musings on the role of Justice Scalia's catholic neoformalism could be related to the exciting "World of Diamonds, Diamond Mining & Rockhounding". This connection reminds me of Eco's Foucault's Pendulum, in which a group of folks got together and designed a computer that, through random connections between seemingly interrelated events, explored the mystery of the Templars. Has anyone made the connection before between the blogosphere and a solution to the Templar problem? If not, I stake my claim.

And for all of your diamond rockhounds out there, I welcome you to this discussion of the law, hip hop, modes of adjudication, the commerce clause and SARS.

Federalism for me and for thee

PLAINSMAN: OK, meditations on hip-hop, Lanham Act protection of proper names, and the Sixth Circuit's Parks v. LaFace decision are still pending. But I wanted to note my basic agreement with this post today by Prof. Russell Korobkin, the newest tentacle of the deep-swimming blog kraken that is the Volokh Conspiracy. [FN *]

Professor Korobkin is rightly disdainful of Attorney General Ashcroft's current efforts to undermine the democratic choice of Oregon's voters to permit physician assisted suicide. Ashcroft aims to use his executive authority to administer the federal Controlled Substances Act to yank the certifications of Oregon physicians who participate in physician-assisted suicide -- disabling them from prescribing controlled drugs, and thus, from practicing. This follows two successful voter referendums on physician-assisted suicide in Oregon (not to mention the failure of a congressional bill to amend the Controlled Substances Act along the lines Gen. Ashcroft envisions). The Justice Department lost when it tried to convince an Oregon federal district judge of its interpretation of the CSA; now the case has just been argued to the Ninth Circuit.

I think legalizing physician assisted suicide is a bad idea. I would never vote for it, and I encourage you to vote it down if it ever comes up for a referendum in your state. But at the level of principled federalism, Professor Korobkin's point stands: it is hard not to see the Justice Department's conduct as an "attempt by conservatives to bully a state in an area of traditional state-regulatory primacy," which is not good. NRO's Prof. Jonathan Adler had a comment on the issues a while back that I think hits the right note; it is here.

I quibble, though, with Prof. Korobkin's attribution of "hypocrisy" to Gen. Ashcroft in this regard. In truth one of the most salient traits of Ashcroft's tenure as AG has been his consistent disregard for federalism. He's a big-government conservative (some would prefer "statist" or "authoritarian") if ever there was one.

[FN *] I don't think it's been pointed out before that if the Volokh Conspiracy were a real conspiracy -- i.e., a cooperation for criminal, instead of benevolent ends -- then by this point Eugene would clearly be staring at a hefty four-level sentence enhancement as the "organizer or leader of a[n] ... activity that involve[s] five or more participants or [is] otherwise extensive." U.S.S.G. sect. 3B1.1(a).

Members of humbler team blogs would get out of Leavenworth sooner.

* * *

D:

I've been thinking a bunch lately about document review, deposition prep., deposition attendance, and deposition errata sheets. Or, as I like to call these assorted horsemen of the litigation apocalypse, my "life". My thoughts about my "life" as a lawyer presently are insufficiently novel to merit blogging about, sadly, so I'll have to move on to politics and more academic law.

Explosions in Saudi Arabia today cast recent Administration claims of victory against terror in a somewhat harsher light. What can the administration do to ensure American safety in the light of this new spotlight on its failure? Hmm. They have already tried having an aircraft carrier slowly circle for hours so that the President gets to declare victory with a good backdrop. Suggested next move: have the military parade past the White House in lockstep so that the cameras can photograph GWB's resolute demeanor. Well, we know that some people would be impressed.

On academic law, there is a great new article posted on SSRN, called "Selling Mayberry: Communities and Individuals in Law and Economics". From the abstract: [W]e show how incorporating the role of community into conventional theory offers a new understanding of the likelihood of holdouts, the importance of community dynamics, the interdependency of community-wide nuisance actions, and the role of the law of takings. I'm looking forward to reading this. But I have errata sheets to take care of first. Nice.

Slim pickings

PLAINSMAN: Sorry for the light posting around here, folks. I should be able to put up some substantive text tomorrow. I particularly want to discuss the Sixth Circuit's decision today in Parks v. LaFace Records, which held that Rosa Parks (yes, the Rosa Parks, of Montgomery bus boycott fame) successfully stated claims under the Lanham Act and the Michigan common-law right of publicity against OutKast, who put out a single titled "Rosa Parks" that has no connection to Ms. Parks or her life, except for a repeated announcement that "[e]verybody" else in the hip-hop business will have to "move to the back of the bus" in light of OutKast's grandeur.

Interesting First Amendment issues are raised. The case may also give me an occasion to opine, somewhat irresponsibly, on how pedestrian OutKast's lyrics sheet seemed to me when compared with the powerful linguistic accomplishments of hip-hop's "classical" period in the late 1980's, with which I am more familiar. Yet the album in question is very well regarded (five mics in The Source, for one measure).

A Nice Article on the Commerce Clause

PLAINSMAN: Prof. Brannon Denning of Southern Illinois U. Law School and Prof. Glenn Reynolds of you know where recently published an interesting article in the Arkansas Law Review on the lower courts' handling of Commerce Clause challenges in the wake of U.S. v. Morrison. The title is Brannon P. Denning and Glenn H. Reynolds, Rulings and Resistance: The New Commerce Clause Jurisprudence Encounters the Lower Courts, 55 ARK. L. REV. 1253 (2003). It's a follow-up to a 1999 Wisconsin Law Review article by the same two gents which analyzed the lower courts' responses to U.S. v. Lopez.

Basically, Denning and Reynolds's new article concludes that not much has changed since their first article, despite Morrison's reaffirmance of the constitutional principles revived in Lopez. The lower courts still uphold a lot of questionable statutes, are inclined to treat Lopez and Morrison as limited to their facts without offering arguments to justify such treatment, and are reluctant to re-examine, in light of Morrison, earlier precedents rejecting Commerce Clause challenges under Lopez. Moreover, both professors justly decry the average quality of analysis in lower court opinions disposing of Commerce Clause challenges to federal criminal statutes. The opinions are often far too brief and perfunctory.

Denning and Reynolds now cautiously suggest that some of the foot-dragging must be chalked up to courts' ideological resistance to enforcing the enumeration of powers, but they acknowledge that there may be other factors at work as well. As I have said before, I think one reason for the slow going is that current Commerce Clause doctrine is a vague four-factor balancing test that does not provide sufficient guidance to judges. If you want clear, predictable, non-politicized enforcement, make the Commerce Clause more formal. I am glad to see that Denning and Reynolds's piece acknowledges that this is one of the options the Court may consider.

Along the way, the article also performs the useful service of collecting and organizing many recent lower court Commerce Clause cases. It is part of a symposium on the Commerce Clause presented in that issue of the Arkansas Law Review. I haven't looked at the other articles, but the contributors include Adrian Vermeule (U. Chicago) and Randy Barnett (BU), among others, so they should be quite worthwhile.

* * *

Say What?

(via John Rosenberg's comments section)

PLAINSMAN: Constitutional law is hard to boil down accurately into soundbites. The current Washingtonian magazine's wonk-gossip column "Capital Comment" contains an item that, I think, falls victim to this problem. Under the heading "Will Court Finesse Race Case?," it states:

"It is increasingly possible, insiders say, that the Supreme Court might dodge the affirmative-action issue and rule in favor of the University of Michigan -- on the limited basis of states' rights. Under a scenario being talked about at the court, Rehnquist would vote for upholding Michigan's plan, then award the writing of the opinion to himself. [...] Rehnquist then would declare that under his concept of federalism, the state of Michigan has the authority to admit anyone it wishes without federal interference."

This report deeply confuses me. What could it mean? That the Fourteenth Amendment protects against direct state-imposed racial discrimination is part of its unconstested, core meaning, and one of the truly settled aspects of national power. Nobody disputes it, though there is certainly controversy over what counts as improper discrimination -- which is the "affirmative-action issue" that the article mentions, and that is teed up now before the Court in Grutter v. Bollinger.

Even the Seminole Tribe line of cases, which uses federalism arguments to limit federal ability to authorize private suits against the states, does not purport to apply to federal race discrimination statutes enacted under the Fourteenth Amendment. See Fitzpatrick v. Bitzer (1974), a case authored by Rehnquist himself and reaffirmed by him and the other members of the Seminole Tribe majority in recent opinions.

Thus, I don't see what Rehnquist is supposedly going to hold. That the Fourteenth Amendment is a mass hallucination? That the Supremacy Clause doesn't exist? That state schools are not state actors, contrary to decades of precedent? The only "federalism" holding I can conceive of would be a holding that the no-discrimination guarantee of the Fourteenth Amendment does not apply to state-run schools when they choose the races of their students. This would, by implication, pretty much undo Brown v. Board of Education (1954). And that is, to put it with a truly massive understatement, a position unlikely to attract five votes. So why should Rehnquist possibly bother with such a gambit, assuming (as I don't) that he even wanted to?

Grutter is about a state university. The U of M is a state actor governed by the terms of the Constitution. Those terms either permit Michigan's practices or they don't. And if they don't, that conclusion controls. Unless I'm missing something big (in which case I encourage readers to e-mail and enlighten me), the Court cannot avoid this basic interpretive issue.

"Rehnquist's approach would give cover to Justice Clarence Thomas, who may be in the running to succeed Rehnquist as Chief Justice. ... [C]oming out strongly against Michigan's affirmative-action policies might risk [Thomas's] elevation, even in a Republican-controlled Senate."

How? Is Justice Thomas supposed to join Rehnquist in upholding the U of M's programs on the unknown "federalism" rationale? That will occur when pigs fly. Thomas's concurrences and asides in numerous cases make it plain that he regards racial preferences as unconstitutional and will vote to strike down Michigan's policies on the merits.

As for Thomas plotting a Chief Justice campaign, could be, though I think it somewhat unlikely. Thomas is by most accounts well liked on the Court, and I think he would make a good Chief (better than Scalia). But it would provoke a firestorm to nominate him for that position now. The pains would outweigh the potential gains: better to expend one's political capital getting a good replacement for Rehnquist's seat, not just his shoulder stripes. I think President Bush is either going to promote Justice Kennedy or bring in a new appointee as Chief.

Finally, this is a sloppy error:

"Thomas has enhanced his standing with his impassioned argument against flag burning."

The writer means cross burning, a stand taken by Justice Thomas last month in his separate opinion in Virginia v. Black (2003). The flag burning case was Texas v. Johnson (1989), decided back when Thomas was still Chairman of the EEOC.

* * *

PLAINSMAN: I must say that "Good Lord" was exactly my reaction when I read the new data on the SARS death rate this morning.

Personally, though, I am less troubled by the notion of the executive branch imposing SARS quarantines on travelers than I am by various domestic surveillance measures that have been approved in the past year or so. Securing the borders against a present threat of lethal outbreak is part of the core executive business of fighting off invaders.

* * *

Scary SARS Post

Ok, it's time to deliver the promised goods on SARS. To wit:

The big news today from the NYT is that the infection's death rate is estimated at "55 percent in people 60 and older, and up to 13.2 percent in younger people". Good lord. The overall case-fatality rate (found by dividing known infections by deaths) stands today at 7.10 %. It has gone up for 43 days in a row (I have data on the epidemic going back 49 days). This strongly suggests that SARS is an extraordinarily virulent disease, as compared to most that are transmitted through the air.

The epidemic is causing a breakdown in social order in China, as vulnerable villagers erect make-shift barricades and attempt to disinfect visitors. See also here. These kinds of stories must be taken with a grain of salt. I have serious doubts that anyone has any solid information about what is going on outside of the major Chinese cities. Meanwhile, the Times is running an enormous series on the economic effects of SARS. There are lab results, finally, that detail the virus's ability to live on exposed surfaces for hours at a time. This makes it unlikely that we'll see a cure soon - despite scientists' bests efforts.

What to make of all of this noise? A few observations.

First: I'm not going to get into a media analysis here - is the epidemic over-covered, under-covered, poorly-covered, etc. Just a week ago, I saw a bunch of "process stories" to this effect. How can this possibly be an intelligent way to spend time? There are times for meta-analysis. And there are times to devote newspaper and television stories to actually going out and, well, reporting on events. To that end, I think some people ought to think about their priorities.


Second: I would assume that the next two weeks are going to be critical ones. If the onset of summer does not dampen the disease's spread in the hinterland of China, Taiwan, India (where it has arrived), then next winter is going to be *brutal*. To be blunt: a blended mortality rate in excess of 20%, coupled with a high transmission rate, and cyclical rounds of infection over several years sounds to me like the Black Death. Is that where we are headed? If so, is there any limit on the power we will give our government to protect us?

Third: A while back, I reported spikes in the growth of the disease every 10-14 days. I hypothesized that this might have something to do with the virus's incubation period. By my calculations, we should see a spike in in the WHO's statistics this coming weekend. We'll see what happens. I hope I'm wrong. Right now, to be significant, we would have to see a daily growth rate of roughly six percent (twice that of the average daily growth rate for the preceding five days).

Bamf

PLAINSMAN: I never got around to seeing the first X-Men movie, despite being a big fan of the mutants back in the 1980s Chris Claremont / John Romita Jr. days.
On the strength of D.'s recommendation and a few others, I've decided to go see the second movie in a week or two. (I always wait a while to see blockbusters, on the hope that the crowds will thin. But in this case, we'll see: apparently it was the 4th biggest opening in history.)

On the plus side, I gather we get a lot of Nightcrawler in this movie, including the opening sequence. This is excellent. Catholic teleporters rule. Is the character presented well? I've read some troubling stuff that suggests Nightcrawler's written as kind of a nut job in this movie (those religious folks, you know), instead of his true, sensitive yet swashbuckling self. (And by the way, since the writers apparently adapted much of the 1980s graphic novel "God Loves, Man Kills" for X2's plot, did they keep the evil bigoted minister as a major villain? Or did they figure having U.S. soldiers as heavies was enough?)

On the down side, I gather Shadowcat gets only a bit part, again, in this film. Too bad. Jewish desolidifiers rule too. As a teenaged reader I was always much more interested in what Kitty was up to than, say, Rogue, who now rakes in the screen time.

* * *

D:

On of the smartest people I read on the blogosphere is spending millions of brain-cells this morning analyzing X-Men. That display frees me to briefly explore a few troubling issues about the film.

Note: the following contains spoilers about the movie.

There are several scenes were our mutant heroes are attacked, or attack, American soldiers. The soldiers are portrayed as bad guys. How do we know? (1) They are killed in large, faceless, numbers; and (2) the audience is supposed to (and, at my theatre did) cheer when they are defeated. Some of the soldiers are American special forces, who are even more evil, because they have the temerity to shoot children and kidnap them. And the weirdest thing is that our heros are referred to as "mutant terrorists" at least once in the movie.

So, is this movie a big play for moral relativism and Franco-style America bashing, gussied up as a blockbluster action flick? If so, are certain uber-Patriots going to boycott the movie? If, as everyone expects, the movie makes buckets of money, have the terrorists won? Was the scene at the whitehouse liberal wishful thinking? (It was, I'll say, an amazinging well executed action sequence). And finally, could this movie have been released last year?

Overall the movie was deeply satisfying. I'll see it again. A wonderful beginning to the year of geek-movies. But still a little odd that I haven't heard howls of protest about some of this stuff.

D:

Rick Hasen, over at the Election Law Blog, has tentatively concluded that the BCRA decision is not, as it is currently being portrayed, a big victory for the anti-campaign law forces. My reading, based on about five minutes of websurfing amid putting together deposition prep materials 'round the clock, is that he's mostly right. The decision is quite fractured, and on the major, important points, very narrow. However, I looked through the plurality opinion and can't seem to find a majority ruling on key questions of fact. Which means that pretty much the entire mess will go to the Supreme Court for de novo review. Most people, I think, would say it would be 5-4 (with the C.J. being the fifth vote) for Buckley right now; which, as Hasen points out, means that a protracted nomination fight this summer could mean a 4-4 affirmance.

I'd like to focus more on this fascinating subject. But I have plans tonight. It is lucky, all considering, that I get to come into work tommorow!

And You Thought the AT&T Antitrust Case Produced Some Long Opinions

PLAINSMAN: The special three-judge D.D.C. panel has finally handed down the big opinion (link per Bashman and SCOTUSBlog) on the constitutionality of the McCain-Feingold campaign finance reform act. Actually, it's several big opinions, totalling hundreds of pages. The court has struck down a number of provisions of McCain-Feingold as violative of the First Amendment, and upheld others (generally over the dissent of Circuit Judge Henderson, sitting by designation).

Handed down on a Friday. Sigh. That means I really should have this behemoth browsed by Monday.

Oh well, there is a handy chart near the beginning of the per curiam majority opinion summarizing the holdings and the voting breakdown.

* * *

D:

Never Give Up. Never Surrender.
In response to a motion to dismiss, a lawyer in Philadelphia representing a civil plaintiff wrote: "[h]aving reviewed the case law cited by the Defendants, Plaintiff's counsel agrees that Plaintiff has not stated a Federal cause of action." Apparently, the lawyer gave up a tad early. Read the opinion denying the motion.

D:
Self-interested Aside
I regularly browse SSRN for articles of interest, and a recent posting caught my eye. Unfortunately the article itself is not online, only the title and abstract. If any of the authors of Regulation for Conservatives: Behavioral Economics and the Case for 'Asymmetric Paternalism' are readers of this blog, please email us, because I would really love to see the paper itself, as we have congruent research interests.

The business of blogging
I've been remiss recently (although what can one do when P is breaking contracts to respond to my last substantive post left and right). However, I still have time to read blogs. I see that there is a discussion going on at the Southern Appeal Blog between my co-blogger and some other folks of good will. I also see that Feddie, over at that blog, believes that W. looks better in a military hat than former Governor Mikael Dukakis. This attractiveness is argued to be somehow relevant to the merit of political parties. Feddie, you are a smart guy, but when Andrew Sullivan can't bring himself to fawn over W, you know you are on thin ice.

Incidentally, check out this decision of the Second Circuit in Beharry v. Ashcroft, reversing Judge Jack Weinstein's ground-breaking opinion incorporating principles of international law into the Immigration and Naturalization Act. The Second Circuit, reversing on procedural grounds, wrote: "Nothing in our decision to reverse on other grounds the judgment of the district court should be seen as an endorsement of the district court’s holding that interpretation of the INA in this case is influenced or controlled by international law." Classic moment for the Judge, I am sure, being told once more that he is a generation ahead of the curve.

A great "Rules v. Standards" case

PLAINSMAN: A couple of days ago the Supreme Court handed down an intriguing pair of opinions in a case called Roell v. Withrow, No. 02-69, which dealt with the interpretation of the Federal Magistrate Act.

I don't know if I'll be able to blog Roell in full detail, but I point it out because it is a perfect illustration of one of this blog's themes -- it is a 5-4 decision in which Justices Scalia and Thomas join a liberal Justice (here, Stevens) in favor of extending a bright-line procedural protection. In this case, the two textualists find themselves in dissent, joined by Stevens and Kennedy. Justice Thomas wrote the dissent.

This was the issue. Federal district court judges ("Article III" judges, the life-tenured folks described in the Constitution) can refer their cases to a federal magistrate judge, who is an "Article I" judge lacking life tenure -- kind of like an agency administrative judge, but rather more prestigious. In a typical case, the magistrates resolve pretrial matters like discovery and motions in limine, while the district judge handles the major stuff like dispositive motions and trials. But the district court can also designate the magistrate to handle an entire case, all the way to judgment. However, litigants have a constitutional right to be heard by an Article III judge if they desire, so such designations can only be done "upon the consent of the parties." 28 U.S.C. 636(c)(1).

The issue in Roell was what that statutory language requires. Does the parties' consent need to be obtained before the litigation gets going? Does their consent need to be in words, rather than being inferred from their conduct? And is the absence of a valid consent a jurisdictional defect that, if noticed by a later reviewing court, requires that court to void an unconsented-to proceeding before a magistrate? Justice Souter's majority opinion answered the first two questions "No," and thus didn't reach the third. Justice Thomas would have answered all three questions "Yes."

I won't detail the arguments here. But it seems to me that if you were the author of a casebook on statutes and their interpretation, and you were seeking a well balanced case to illustrate the difference between, on one hand, the more "standard-based," pro-flexibility school of interpretation characteristic of Justices like O'Connor, Breyer, and Souter, and on the other hand, the more "rule-based," pro-clarity school of interpretation characteristic of Justices Scalia and Thomas, you wouldn't need to look much further than Roell. It's concise, the contrasting approaches stand out clearly, and Justices Souter and Thomas engage each other's arguments well.

Go check it out.

PS: Ideally, casebook authors, you'll want to accompany this case with an excerpt from Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989).

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PLAINSMAN: Yes, I see your point. (I'm not sure what case to cite for such an argument.) One reason the Court should take the case is to shed light on the contours of the "ceremonial deism" exception to the principles set out in its Establishment Clause case law. The scope and content of the exception are far from clear.

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D:

I'm not a fan of the "no overruling under fire" section of Casey either. But there is a flavor of that section in the argument that the very importance that political leaders have put on keeping God in the pledge suggests that having God in there is significant. I am not the first to have made this connection: I think it was blogged a bit on the Conspiracy a while back. If the Court were to accept this argument, the citation would be Casey, don't you think?

The Pledge Case, Popular Opposition, and Stare Decisis

PLAINSMAN: D. writes:

"[T]he pledge of allegiance. Is this turning out to be a Casey v. Planned Parenthood paradigm - that is, does the political pressure brought to bear on this case suggest that the Court was right?"

I think that you're on to something, but that the "no overruling under fire" bit from Casey is the wrong lens through which to look at it. To explain what I mean, I'll say a bit about Casey.

Contra the plurality opinion in Casey, It's not true (and it's elitist and ad hoc and deeply mistaken) to think that the fact that many millions of Americans passionately oppose Roe v. Wade as a matter of constitutional law and policy is somehow an affirmative reason to stick by that ruling. Yet it doesn't demonstrate that Roe was wrongly decided, either. (Not, at least, to a modern textualist, who thinks that if a decision is good law there must be some set of objectively verifiable provisions and/or traditions from which it can be derived...)

The depth and breadth of national opposition to Roe should simply have persuaded the Court in Casey to consider the legal issue one more time, from a clean slate, and not from the presumptive standpoint of stare decisis, as it did. This is true regardless of whether one thinks Roe got the legal question right or wrong. Either way, as Justice Scalia urged in one part of his dissent, adjudicating Casey, of all cases, should precisely not have been about stare decisis.

Most important judicial decisions evoke spirited grumbling. But it's very unusual for a constitutional ruling to cause the country to simply explode with dissatisfaction the way Roe and the Pledge ruling have. Under those circumstances, the usual application of stare decisis (a doctrine which rests in part, you'll remember, on social "reliance costs") could logically be waived. With such decisions, it's legitimate to let the public contribute to the conversation by asking the Justices, once, "are you sure you really meant that?".

By the way -- though now we're going kind of far afield from D.'s original query -- for a fascinating argument that Congress could use a statute to force the Supreme Court, in a future case, to do with Roe what I've said it should have done with Roe in the first place in Casey -- i.e., consider it afresh -- check out Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535 (2000). An abstract is here.

And for a critique of Paulsen's argument, check out Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. REV. 570 (2001). The full article is available here.

Nevertheless, the massive opposition to the Pledge ruling does not demonstrate that the Ninth Circuit was mistaken, and it's fair to point that out. I'll note in closing that I don't find the Ninth Circuit's opinion flagrantly wrong, like a lot of people do. I think it is incorrect, and should be reversed, but it's not badly argued. The truth is that the Supreme Court's Establishment Clause jurisprudence is a mess, and some opinions lend a degree of support to Judge Reinhardt's reasoning. Certainly the case should not be disposed of by the Supreme Court summarily, without oral argument, as Howard tells us the Solicitor General has suggested in the cert petition.

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D:

Very busy with depositions, which has made blogging impossible. Apologies all around. My next post will be a long, substantive, scary post about SARS. I had promised to back off for about ten days. I have. The news has gotten worse. So I feel a need to blog about it a little bit, specifically, on the specific topic of "Lies, Damn Lies, and SARS Statistics". Possibly tonight.

Additionally, I'd be very happy to spend some time discussing how Professor Solum would test for "judicial virtues", as he proposes in this post.

Another possible topic: the pledge of allegiance. Is this turning out to be a Casey v. Planned Parenthood paradigm - that is, does the political pressure brought to bear on this case suggest that the Court was right?