D

I I wasn't advocating suing Mr. B (to the contrary, I think any such lawsuit would be doomed to failure, bad for the world, and liable to good counter-claims for abuse of process), but I don't think that your attempt to distinguish him from Google are entirely persuasive. First, although it may be true, for now, that his site is not a money-making enterprise, that is a distinction without a difference. We all know that for the purposes of first amendment law, its speech not speakers. We also all know that making money off of speech does not make it more or less protected (unless the speech is "commercial speech"; I don't think Google's speech is "commercial speech"; at least the Judge didn't think so.

Second, I was positing a counterfactual world, where, a Judge hasexpectations that Bashman would post his opinion (say, because it was an published opinion about the constitutionality of unpublished opinions, containing a bunch of video clips, and a long discussion of the Judicial nominating process). Bashman doesn' t link to the opinion. The Judge sues, saying: "How will I ever make money now" (remember: in this world we suggest that Judge's jobs are linked to how many people read their opinions). Ok, so, in this world, can the Judge sue?

As I said, of course not. But the reason is most emphatically not because Bashman's recognition algorithim is the "tickle my fancy" algorithm and Google's is mathematical. Mathematical algorithims, like any kind of computer software, is speech. [If we were thinking of this in the intellectual property context, arguably, you could have a point. That is, I'm not sure that you can get intellectual property protection for a system of organization like Google's, and I really am sure you can't copyright the product of the system. Bashman's speech, because it is infused with the spark of creativity, be more likely to have protection, even though, some have argued to the contrary.] But as speech, both Google's linking algorithm and Bashman's fancy algorithm are equally protected.

No, the reason that neither can be sued is that we don't own someone else's speech. While we may be able to sue for defamatory speech (and even then, the defamation and libel torts are quite limited in the States as compared, to, say Britain), we can't sue because someone else hasn't praised us as much as they should have. To do so would, as Google argued, allow any business to sue arguing that they should be praised (i.e. rated) the most. This would violate the First Amendment.

So, if mega-critic Robert Parker (and I'd read, and loved, that Atlantic article before) said to himself: this wine is fantastic, but I'm going to rate it low, because I can, that wine maker still could not sue. No one has the right to be given an A. [This, incidentally, reminds me of the Simpsons episode where the teachers go on strike and Lisa, missing the joy of evaluation, says to Marge: "Grade me...look at me...evaluate and rank me! Oh, I'm good, good, good, and oh so smart! Grade me!" *courtesy of this site.]

More later on super-analogy. I need to file a brief now.

PLAINSMAN: Incidentally, I retrieved from my stack of books in the corner Barnett's The Structure of Liberty, which I mentioned a couple of days ago. I'll take a longer look at it soon and then post something. But not for at least a week. Indeed, I'm going to bed now.

How Appealing meets Robert Parker; A First Amendment analogy that has been curtailed

PLAINSMAN: I. The big difference is that unlike Google, Mr. Bashman's site is not a money-making enterprise. It doesn't compete with anyone. Yes, I know, running it hasn't exactly hurt him either. But in that attenuated sense, all noteworthy public activity is a form of advertising for its performers, so the concept becomes nonuseful. [All except for pseudonymous public activity, of course, which plainly reflects a rare and remarkable altruism. :)]

And Google actually went in and tinkered with the normal operation of its recognition algorithm with respect to SearchKing. Expectations -- whether justifiable or not -- were stymied. By contrast, as far as we can tell, any effect of How Appealing on the opinion "market" is simply the result of the normal functioning of Mr. Bashman's recognition algorithm.

His effect on opinions will be somewhat like the effect many think mega-critic Robert Parker has had on the taste of contemporary wines. [Few cultural topics are so abstruse that they can't be related to good food or oenophilia.] The standard story goes that Parker's palate favors big, splashy, hedonistic wines, which gets reflected in the scores he assigns in his bimonthly Wine Advocate, and gives manufacturers all over the world incentives to adopt a particular style -- the so-called low-tannin "fruit bomb." Parker protests, with justice, that he is just expressing his opinions, offering pointers. Similarly, two weeks ago we mused that the rise of an Internet full of jacked-in law nerds like us might foretell a growth in splashy (though that is a stretch, and to say "hedonistic" would be downright silly) opinions. Anyway, whatever characteristics prestige Web commentators select for will appear in more and more opinions. Yet all people are doing is expressing their opinions, offering pointers.

II. Let me switch gears back to our master topic this week -- clinching analogies. A fundamental one that occurred to me is the notion that non-linguistic conduct can be speech; that there is "expressive activity" entitled to intermediate scrutiny under the First Amendment. I think it is fair to decribe this as an analogy. Non-linguistic activity (things like AMESLAN are, of course, linguistic) is not, in a simple or literal sense, speech. Yet we choose to treat it as like speech, or as demi-speech that partakes of some of the protection we give speech.

I know this is a broad topic to bring up. But I have one rather concrete point to offer -- a place where there seems to be an arbitrary refusal to extend this plausible analogy. If we extend intermediate 1st Am. protection to "speech-linked" conduct under the Amendment's Free Speech Clause, then why has no Justice ever suggested applying the same standard of scrutiny to claims of "conduct exemptions" from neutral laws under the Amendment's Free Exercise Clause?

Everyone knows the legal story here. For a while there in the 1960s and 1970s the Court's official policy was strict scrutiny for Free Exercise claims, but this proved unamanageable, and so the Court swung way over in the other direction in Employment Div. v. Smith (1990) and held that mere rational basis scrutiny applies unless the law is really fishy -- motivated by evident animus against a religious practice. On this point Smith was hotly divided five to four -- the concurring/dissenting opinion from Justice O'Connor is a good one, urging the retention of strict scrutiny for laws that burden religious conduct.

Yet O'Connor herself was willing to approve the actual result in Smith: upholding a prohibition of peyote use even against Native Americans who used it sacramentally. So why not admit that this is really intermediate scrutiny, just like we apply to the other category of semantically-fraught conduct that the First Amendment regulates? It's all the same Amendment. That suggestive structural feature of the text ought to have pointed the Court in the right direction. As a matter of fact, the Free Exercise guarantee comes before the speech guarantee.

This reasoning seems convincing to me, even obvious; is that a quirk of perspective? Once you have Ward v. Rock Against Racism it just seems to follow that Smith should have adopted intermediate scrutiny.

It is true that sometimes religious freedoms can be shielded using the plain old Free Speech Clause; particularly when the religious activity involved is (in fact) verbal. But not always. At a practical level, it is sometimes important to be able to do certain nonlinguistic things in order to reach a listener. At a practical level, it is sometimes important to be able to do certain nonlinguistic things in order to perhaps reach God.

The vision thing

PLAINSMAN: While I had hoped to put up a substantive post at lunch today, it will have to await this evening. This morning was absurd. I woke at cock-crow with big plans for arriving at the office way early and dynamoing (not dynamiting, though that's also possible) masses of work off my desk. I fumbled around, turned on the Weather Channel ... and realized I couldn't find my glasses. Not in their usual place next to the bed; not in their backup spot on the kitchen counter.

I then spent an hour and a half combing and re-combing my little apartment like a UN weapons inspector (a squinting one). No luck. Finally I arrived at resignation: slouched in my old blue chair, phoned my ophthalmologist (back in the ancestral home), and asked her to fax my prescription, so I could get some lenses made to fill the gap.

Then, of course, my specs appeared. They were wedged with origami-like ingenuity in the inner workings of the blue lounger I sat on. I'd been reading there the night before. Mind you, I had already rifled this lounger three times this morning on a similar hunch, but whatever. I can see.

Sank my plans for an early start, though.

PS: The eye doc's fax arrived. I reckon I should use it anyway to have a spare pair of frames made, for such contingencies. Before today I had tended to view that idea as mere optical-industry propaganda, similar to "Lather. Rinse. Repeat." I mean, how do you lose your glasses?

D I have a thought, in connection with these analyses of the lawsuit against Google's over page rankings. According to some commentators, although Google is right on the law, it is wrong on policy grounds: Internet gatekeepers should be held to a higher standard (which looks, to me, like the state actor standard). In the great common informational matrix of the Net, do trustworthy and networked people assume duties to the commons? (I personally find the argument a huge stretch).

This is related to our discussion of two weeks ago regarding commonodification. [Why, oh why, is our archive linking system broken?] There, I argued the Bashman's How Appealing is the uniquely valuable, and uniquely dangerous, gatekeeper of a market in entertaining judicial opinions. Now, assume a world where, say, Judges got paid, in part, based on how many people read the latest copy of their opinions. [Not farfetched, I'd say]. In that world, would a suit against Bashman for refusing to link to an opinion be conceivable? Of course not! Why? Because: (1) of Bashman's first amendment rights; and (2) because we don't (yet) see opinions or legal content as property (but we will!).

So, Mr. B., you can breathe a sigh of relief for now.

D: Off-Topic I am sure you will want to respond to a reader who engaged you about Barnett's The Structure of Liberty. As I am unlikely to be able to add much to that conversation, I thought I'd drop a note about last night's state of the Union. I tried, I really did, to watch with an open mind. But, it turns out, that ship has sailed. It was a stump speech, with little information about the State of the Union, and a foreign policy without ethical or practical limits. And I find myself, inanely, quoting Yeats: "the worst are full of passionate intensity."

But it was still shameful to watch Gilmore Girls and Smallville instead; I should have tried to read Gibbon's description of Zorastrians. (note, by the way, that this is still a living religion!).

D: You know, I was once having a meal with Professor X, a well known conservative (if mildly heterodox) professor at the law school we attended. He or she said that textualist Justices were falling into a liberal trap when resorting to historical analysis in interpreting the Fourth Amendment. The argument was that such historical analogies (particular the ones in the car context), are so silly that they cast a bad light on textualist arguments in general. I'm not sure if I agree, but I am fairly convinced that decisions like Wyoming v. Houghton are ugly when parsed.

However, it is of no moment, because the super-analogy in such cases isn't like the pirate-property analogy (the two are related) which so clearly won the day in the Copyright context. The test for such an analogy should be this: a lawyer creates an image which defines how the courts (and the public) views a certain kind of conduct, that, absent such an image, could have been legally defensible. One such image, you could argue, is the idea of the Standard Oil monopolist, defined (in large part) by the idea of the Octopus, with tentacles reaching everywhere, strangling business. Notice, here, I'm thinking of visual images, and not a clever lawyerly argument.

Right now, I'm trying for the upteenth time to read Gibbon's Decline and Fall. Every time I open it up, I find myself really interested in each individual sentence, but completely unable to read more than twenty or so pages at a time. So maybe a heady theory book is beyond me.

PLAINSMAN: A follow-up. Just wanted to acknowledge that in a previous post you've already touched on the Court's rejection of the "cars = dwellings" analogy.

On January 21, in response to my praise of Kyllo, you wrote: "[Scalia and Thomas]'s refusal to see the Fourth Amendment outside of the home kind of makes the Amendment a refuge for the propertied." You added that "[d]istinguishing homes from, say, cars, isn't 'sensible,' its a value judgment."

PLAINSMAN: Indeed, Howard Bashman casually disclosed his membership in The Federalist Society a while back. He remarked that he joined chiefly for the accompanying subscription to the Harvard Journal of Law and Public Policy. I too look forward to the arrival of the next issue of that journal.

I might have told you before that I was a card-carrying ACLU member about a decade ago. (Cf. Ecclesiastes/The Byrds: To everything, turn, turn, etc.) I too got tons of solicitations and related junk mail. Nowadays, when I sift my ideological junk mail, I don't sense that the Feddies are selling my name around much. More mail -- the total amount is moderate -- seems to come by way of my subscription to First Things.

My teenaged self probably doesn't count. I'd say that Fed Soc members with a libertarian outlook are more likely to look to the Cato Institute than to the ACLU. But there is a good deal of libertarian sentiment within the Fed Soc's membership, especially on issues like the Fourth Amendment, the drug laws, and economic rights. Libertarian intellectuals like Professor Randy Barnett of Boston U. find receptive audiences at Fed Soc chapters.

Speaking of which, I recently picked up Prof. Barnett's book The Structure of Liberty(Oxford 2000). It is a theoretical attempt to build up the argument for a minimal state from a libertarian natural-rights starting point, a la Nozick. Not my usual philosophical cup of tea. I wish I could report that I'd made more progress in the book; the first few dozen pages struck me as serious and impressive. But as you know, I'm trying to get some other law-related stuff done in spare time; there is not much spare time; there are a few important television programs; yada yada.

We need to get back to discussing examples of clinching "super analogies." Here is one; feel free to pass it over if you like another better. Professor Lessig is persuaded that one reason the five federalist Justices voted to uphold the CTEA copyright statute in Eldred v. Ashcroft was because they bought the story "copyright = property," rather than the story Lessig and his allies were urging, namely "copyright = bargain between individual and state." I had a similar inutition, which I expressed somewhat less crisply in this blog, below, after Eldred was handed down. (Links to our archived posts do not seem to be working.)

There are also interesting examples of clinching analogies in Fourth Amendment jurisprudence. For example, how exactly did one's car come to be as relatively unprotected against search and seizure as, many would argue, it now is? Perhaps one may say that the Justices, in a process spanning a generation, have gradually but firmly rejected the analogy "a car = a little dwelling." Was some other, more plausible counter-story offered?

D: So, Bashman is a member of the Federalist society after all. Not a huge surprise (have you noticed, incidentally, that his posts have started to editorialize a bit more?). As you are a member, I wonder if you have a sense of what proportion of the Federal Society membership are also card-carrying members of the ACLU? Probably really small, but I'd love to meet those iconoclastic (libertarian) swingers. I myself was an ACLU guy for a while, before their constant rounds of solicitation letters became too annoying. Plus, they sold my name to Amnesty International, which I thought was both ironic and incredibly annoying.

PLAINSMAN: We really need to figure out how to put some permanent links up on this blog. Better a cloverleaf than a cul-de-sac. I am strengthened in this view by my discovery today that Dave Barry has a blog. What's not to like?

I discovered this through the Brothers Judd blog, which also offers much to like.

D The odd thing about Zelman is that, having accepted the market analogy in part (your "Constitutional" analogy), the Court really doesn't seriously consider the counter-argument that religious schools have a monopoly in Cleveland, and therefore, allowing a market is like endorsing religious education. That is, its a bit like the California energy crisis of 2000-2001, which, according to some, was the result of a creation of market that monopolistic firms (like, for example, Enron) could manipulate. When the state creates a market in which only a few players can participate, it looks much more like endorsement than, say, opening up a public square to all comers.

Second, although I also found Thomas's opinion interesting (as I always do), I thought his hostility toward public schools was naked and off-base. I agree that the problem is "not just funding," but I would change your emphasis from not to just; that is, funding is not a sufficient condition for a successful school, but it sure is necessary.

Vouchers are related to the affirmative action debate, and it is not surprising that we are on different sides of both issues. One of the values of a public school education is that one is forced to be exposed to the views of entirely different individuals, while being taught a curriculum that has been agreed to be the widest section of the (local) community. A private school education is directed at more traditional "academic" learning.

For parents in Cleveland, the choice is easy: put your child in the school that offfers them the best choices later in life. The same choice, offered to white parents following de-segregation, created the de facto racism that put us in the pickle we're in. Thomas' appeal to parental choice is nothing more than an appeal to create the tragedy of the commons. It would be better to find a way - whether its money, or integrating schools through housing programs, or paying teachers more money - to give everyone in society a chance to learn together.

The problem with market based solutions is that they hold that its better to cut the pie than grow it.

Now, lets pick another super-analogy. Thoughts?

School Vouchers and Market Analogies

PLAINSMAN: Let me do this in two parts.

1. I've Got a Voucher to Sell You. Let me distinguish between two senses in which one can buy the analogy offered by voucher proponents, in which voucher-backed private schools stand alongside tax-backed public schools as equal choices in a market for primary and secondary education.

The first sense, the sense in which I "largely accept" the analogy, is the one that's relevant to the Establishment Clause question in Zelman. Resources from neutral government benefit programs may flow to religiously-affiliated institutions just as well as non-religious institutions, without raising Establishment Clause worries, when the resources are directed by the beneficiaries. Secular, state-run institutions are not presumptively more legitimate than other American institutions. Religious principles and motives are the wellsprings of a large portion of human activity, and the public square ought to reflect this diversity, without special government obstacles.

This broad principle -- call it "neutrality" -- seems to underpin the decision in Zelman. I think it is correct both generally, and as applied to schooling. For example, it seems to me to be fully consistent with the "no endorsement" theory of the Establishment Clause, associated with Justice O'Connor. I regard that as one of the more plausible contenders in the convoluted area of Religion Clause jurisprudence. (Hmm, wasn't someone on this blog dissing O'Connor last week?) One way to get people to embrace the neutrality principle in the schools context is to coax them to view public schools as just one contender among many, not as the assumed backdrop against which decisions are made.

Now, the second sense in which one can "buy" the picture we're discussing is at the level of policy. You can think that it is not only constitutional but prudent to structure primary and secondary education as a field of direct public/private competition.

For one, you could take the view that private schooling is just superior to public education. This oversimplified view crept into Justice Thomas's concurrence in Zelman, which I otherwise found one of the most interesting and provocative opinions of the last Term. "Religious schools, like other private schools, achieve far better educational results than their public counterparts." Maybe in Cleveland, but everywhere? Now, in some times and places, I think this is true. To the extent that I think school vouchers are good policy, it is largely on this ground, as I'll explain more below. But my view is not as categorical as the one Justice Thomas (himself a product of Catholic schools) expressed.

You could also take the view that "market" competition for students among public and private schools will spur all schools to improve. Here is where the skepticism you've expressed about market arguments comes into play. In the context of schools, I share some of that skepticism. Like all market arguments, the competition-lifts-all-schools argument for vouchers assumes various things. It assumes that parents have sufficient information and incentives to move from worse schools to better (probably true in a city like Cleveland, where the public schools had apparently melted down, but true everywhere?) It assumes unionized public schools have sufficient incentives to improve rather than letting their motivated students be plucked away by harder-working private schools. It assumes private schools want to take on lots of new kids coming from the public schools. Etc. I suspect these assumptions are true in some cases and not in others, which simply means vouchers are not a panacea.

Having said all that, let me answer your question re: how my sympathy for school vouchers sorts with my broadly communitarian sympathies. Simply giving everyone the same educational widget, whatever it is, doesn't guarantee that everyone will get the kind of grounding that enables them to participate in a moral and political community. A particular kind of education is needed. (Alasdair MacIntyre has a lot to say here.) It can take a myriad of different forms, but those forms will have common some characteristics like a living tradition, discipline (including the vital power to expel the bad apples), technical mastery, inquiry, and flexibility coupled with certain "thick," or substantive normative commitments. And my sense is that in a lot of big cities, the sort of communitarian education I described above is just not possible in the public schools. There are a number of reasons, I think, which space forbids me from canvassing.

I speak with some hesitation here. I am myself a loyal product of private school: I was a scholarship kid who got pulled out of a mediocre public school at a young age. But I also read the papers and pay attention. I know of more than a few bad urban school districts that are swimming in money, to no avail. The problem is not just that the suburbs have higher property tax bases.

I wouldn't vote for a voucher program everywhere. But if I lived in Cleveland, and my choice were between (1) partially privatizing the educational sphere, but pulling some badly deprived kids into a decent urban Catholic school that gives them a shot at empowered citizenship; or (2) keeping them in failed public schools as a gesture of abstract communitarian principle, I'm going for (1). And I think other prudent communitarians should do the same.

"While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society." Notwithstanding the class-warfare note to Justice Thomas's statement, I think that strikes close to the heart of the matter.

Post vs. Times; A Random Digression on Nigella Lawson

PLAINSMAN: Second part.

2. What Does "Paper of Record" Mean Anyway? Respectfully, I have to stick by my judgment about the Post having taken the place usually assigned to the Times. There is a lot of common sense in the blogosphere (along with nonsense), and in this case I think its judgment is on the mark. Ever since the Raines era began, with the "News Analyses," the Bush hatred, the spiked columns, the spun polls, etc., I just can't read the NYT with pleasure anymore. It's too much effort to try to figure out what's going on.

I don't propose to go on at length about this; I know you find the subject tiresome. It's not that the Times doesn't have extraordinary human and organizational capital. It does. They're smart, driven people with lots of clout.

I myself buy the Times once a week on Wednesdays, for its peerless Dining and Wine section. That sounds flippant, but it's not. The distinctive thing about food journalism -- the reason it's so relaxing, after a day of writing briefs and blogging about Apprendi -- is that it forms a space where imagination and humanistic literary skill have free play, yet ideology is excluded. No one's interest group or worldview can be bolstered by the fact that William Grimes says Wallse's cooking is more polished than Tuscan Steak's. Success there is simply a matter of discernment, urbanity, wordsmithing, all of which the Times' writers display.

[Digression: I will now forfeit whatever cred the previous paragraph gained me with the fooderati by giving extra props to the Times dining section for donating a weekly column to witty, haphazard, and ridiculously attractive Oxonian food goddess Nigella Lawson. Her UK-import cooking show Nigella Bites is, in my view, an adequate reason to equip your television with the Style Network.
Resuming:]

News and editorial coverage is different. You need more than a cosmopolitan upbringing and high verbal SATs (assuming those are needed); you need a breadth of sympathy and a spirit of fair-mindedness. However, in the past couple of years the Times' editors, and a lot of their writers, have come to strike me as deeply insulated and tone-deaf on lots of "red state" issues that are important to millions of Americans. Once this trait started to seep heavily into the news pages, it was over for me.

By contrast, I trust the Post to report the news, though I don't agree with it on everything. When it speaks in its own voice it displays an awareness of the complexity of issues. I think that is a necessary trait of the "paper of record." I'm willing to let the Post tell me about the world, even though its raw newsgathering resources are less extensive than the Times'. Richard John Neuhaus said it well: the difference is that the Post "is a liberal paper that knows it must engage opposing arguments."

D: I know that it is now fashionable among bloggers to bash the Times, but you should try harder to resist the the blogherd. In no way is the Post the paper of record. There are good critiques of the Times out there, especially of Raines' recent gaffes, but it is still essential reading. The Post simply isn't (and, as evidence, I'm not going to even link to it).

I'm happy you chose the market analogy with respect to school choice. That example is the other one I had in mind when picking the topic. And I really, really wish the opponents of school choice had read the following two articles: Donald McCloskey's "The Rhetoric of Law and Economics", 86 Mich. L. Rev. 752 (1987-1988), and Wayne Eastman's "Telling Alternative Stories: Heterodox Versions of the Coase Theorom, The Prisoner's Dilemna, and Supply-Demand Equilibrium", 29 Conn. L. Rev. 727 (1997). Both offer particularly useful techniques for turning market analogies against their makers.

I think you are right on that in Zelman, the Court bought the "state offering a product" on the "market of education" story, instead of the "state funding religious schools story." Reading the case, however, I was struck at how much the Court thought that the State's product was (to borrow a concept from torts) subject to a design flaw that made it basically unworthy.

I'm kind of shocked that you buy this analogy. Aren't you usually for communitarian mechanisms that give us all a (generally) similar background? Treating primary education as a market, and the state as a producer of a content, is right out of Polinsky's Intro. to L&E.

PLAINSMAN: By funny coincidence, I am also due to receive, for the first time, my opponents' response to a merits brief that I wrote in substantial part. In fact I stopped by work this evening to see if the response had materialized in my mailbox. Not yet. I'm very curious. I think we've got 'em nailed, but I expect when I get their brief my clerking reflexes will give me the same flash of angst you report.

I see your point with respect to that NY Times article on the shari'a court. My reaction is twofold. I am sure glad I do not live under northern Nigerian shari'a (not least because I dislike the notion of members of my family being criminally punished for proselytizing), and it is good reporting for the Times to cover such things. This prosecution and penalty are horribly harsh, and the evidentiary protections described in the article seem very thin. It would be instructive to compare them to canon law procedures, which do not have criminal application. If I were better educated, I'd do that. (Notice I've not even touched on the prudential doubts as to whether governments ought to be prosecuting offenses against sexual morality.)

On the other hand, as you suggest, it is hard to trust the NY Times' coverage of religion. The nation's paper of record is much more perceptive in these matters. They had a nuanced critique today of the President's attempt to revamp HUD rules that currently prohibit religious institutions from applying for grants.

Next week's topic: A tough choice; you've offered some tempting options. I am going to forgo topic (1), the Commerce Clause and environmental law, because I am trying to piece it out on paper right now. Man, what a vexed topic. Perhaps we can come back to it in a few weeks. I will also skip over (2), the attorney disclosure aspects of the Sarbanes-Oxley Act. While it's as relevant as can be, I don't feel lucid enough on all the policy issues (legal ethics, attorney-client trust, optimal functioning of the capital markets, etc.) to pontificate.

So that leaves topic (3), superstar analogies. I like it, and I'll let you kick it off tomorrow (pun intended).

Here's a suggestion. Do you think that the school voucher folks won Zelman v. Simmons-Harris, and many of their other battles before courts and legislatures, by selling a novel analogy? If so, what was the content of the analogy? Was it to liken the sending of one's child to school to the choice of a consumer product?

People in America buy religious books or non-religious books, as their choices dictate. It's routine, it's their own business. Likewise, you can choose to listen to religious music stations (like a remarkable number of cabbies in this city, I find) or other music stations. Etc. So, while one might view government schools as part of the neutral backdrop against which we make private choices about resources, the voucher folks have sought to re-jigger those intuitions. Instead, the state is just offering one product among many. If you don't like what it's offering, you should be able to choose another, different widget for your children. (OK, that last one is a stretch, since successful voucher programs are means-tested.) Since we all pay for the state schools (though heavily weighted by locality), tuition vouchers attempt to position private educational "products" in something closer to a fair competitive position in the market. I have to admit, I largely buy this analogy.

D Brief writing is going slowly (despite the fire of righteous indignation I've got glowing). Surfing is going well. So, you should read this article about a woman sentenced to death-by-stoning in Nigeria for fornication. I found it troubling. On one hand, I, like most post-Enlightenment Westerners, am against imposing the death penalty for crimes of moral turpitude. But the Times article contains an incredibly patronizing description of the head of the Shariah (Islamic religious) court, who is depicted to be a bit of an unthinking boob, relying on divine revelation instead of legal reasoning. The suggestion in the article is that: (1) Nigeria is in trouble; because (2) it's Southern (Christian) legal system is under assault; by (3) an amateurish imposition of reactionary Shariah law.

Now this all may be true, but how does it help Americans to understand, say, international terrorism by Muslims, when the newspaper of record treats the Islamic legal system as total religious bunk. This, by the way, is not an argument for relativism. There are ways to condemn sanctions like death for adulterors which do not involve commenting about the Chief Judge of the Shariah court that his "head wrap was made of gold netting, reminiscent of a Brooklyn disco dance floor, circa 1981". [But, you might say, people make fun of the Chief Justice of the nine for his Gilbert and Sullivan impressions. True. But: (1) Gilbert and Sullivan impressions are really funny; (2) who, unless they are seeking to be mean, resurrects Brooklyn disco circa 1981; and (3) there are other sources of information about the Chief, but this is the first thing I've ever read about Nigerian Islamic Courts]. If the Times did a similar piece on the Beth-Din (Rabbinical Court) of Califorinia, there would be a (justifiable) uproar.

In a better world, you wouldn't have to be a law student in a comparative law class to get unbiased information about foreign legal systems. And Judges and lawyers would get more respect, even if they do wear funny hats.

D Incidentally, I had a funny experience this week that some of you readers may relate to. For the first time, I received opposition papers to a motion I had substantially written and have a personal stake in. What an odd feeling. As law clerks, you are used to, in a sense, feeling persuadible by briefs. The goal is to remain open minded until you have finished reading the complete set of papers. So, reading the opposing papers in this case, my initial thought was: "Huh, maybe they are right, maybe our argument is deceptively simple, but totally wrong. Why are we such horrible people?" This was a terrible feeling. Then, my new lawyer-instincts set in, and I recognized how their arguments are deeply flawed.

Which is why I'm here on a weekend writing a brief instead of home watching re-runs of Buffy.

B: In that very same New Yorker issue, there is an article about George Orwell. It contains the following relevant caution:

"Big Brother" and "doublethink" and "thought police" are frequently cited as contributions to the language. They are, but they belong to the same category as "liar" and "pervert" and "madman." They are conversation-stoppers. When a court allows videotape from a hidden camera to be used in a trial, people shout "Big Brother." When a politician refers to his proposal to permit logging on national land as "environmentally friendly," he is charged with "doublethink." When a critic finds sexism in a poem, she is accused of being a member of the "thought police." The terms can be used to discredit virtually any position, which is one of the reasons that Orwell became everyone's favorite political thinker. People learned to make any deviation from their own platform seem the first step on the slippery slope to "1984.""

So, perhaps its unwise to implicitly criticize GWB's tax plan, which I view as a shameless wealth transfer to the rich at the expense of: (1) the current middle class; and (2) future generations, as "doublethink." People who already think, as I do, that GWB's proposals are wrong will either chuckle to themselves or nod sagely at the conventional wisdom, while people who think the GWB's proposals are fantastic aren't going to see doublethink but rather straight-talk. What I should have done would have been to say that its it better to be a dour liberal than a shameless seeker of kaldor-hicks efficiency

But that would have been way off our law topic.

Speaking of which, I am in charge of nominating a topic for this coming week. I'm going to offer you three, and you choose one for the first post. The proposal are:

(1) The Commerce Clause and Criminal Violations of the Environmental Laws: Analyze recent decisions and offer some theory.
(2) Sarbanes-Oxley and Attorney-Client Privilege: A hot topic among lawyers; I wonder whether there would have been a legal challenge had the SEC not "dropped" its noisy-withdrawal requirement.
(3) Superstar Analogies: Something I've been wanting to do for a while in academic context, but something about especially useful analogies that have convinced courts in the last few years. A good example would be the use of the "piracy" analogy in intellectual property, which I (and possibly others) think was enormously helpful in convincing the vast majority of judges to prohibit sharing MP3 files online, and in giving teeth to those rulings by holding hosting services responsible.

PLAINSMAN: I much enjoyed Mr. Bashman's interview with Judge Smith. I liked how the Judge cut to the chase when Bashman asked him "what's your biggest case?" and simply said "Hopwood."

I have heard some of the same scuttlebutt you report re: conservative personalities on the bench. Yet as you say, the sample size is small and it's hard to generalize. On the court I clerked for, the two friendliest Judges (besides my own) that I got to know a bit were both Reagan appointees, one of them considered quite conservative. Yet I also had a fair amount of contact with one of the court's quite liberal Judges, and found that Judge very likeable.

As for conservative judges tending to have been politicians rather than academics, I question whether that's really more true of GOP than Dem appointees. In the Reagan years there was a concerted effort to sprinkle academics on the various federal circuit benches in order to shift the intellectual tone of the courts. That brought us Judges such as Bork (2d), Winter (2d), Posner (7th), Easterbrook (7th), D. Ginsburg (D.C.), Scalia (D.C.), Bowman (8th), Noonan (9th) (admittedly a wild card), etc. Morris Arnold (now 8th) was law dean at Indiana when Reagan put him on the W.D. Ark. bench. And GWB too has already benched some high-octane academics, like Plainsman favorite Judge Michael McConnell (10th) and Judge Paul ("don't call me Miranda") Cassell (D. Utah).

Of course there are a fair number of Dem profs-turned-judges too: Breyer, R. B. Ginsburg, Calabresi (2d), Moore (6th), Wood (7th), and probably some others who slip my mind.

I will have to look in on that New Yorker article about Harvard. The mere mention of campus speech codes is a sufficient excuse for me to give a gratuitous link and shout-out to the folks at the Foundation for Individual Rights in Education (FIRE), one of the most admirable non-profits in the land.

Finally, could this be an example of the double-speak you had in mind?: "Encourage job-creating investment in America's businesses by ending the double taxation of dividends."

As the readers of this blog are no doubt a subset of How Appealing, I'm sure everyone has read this interview with Judge Smith. He seems very down to earth. This reminds me of scuttlebutt among law-clerks that conservative judges are generally easier to get along with (for clerks) than liberals (especially in the Supreme Court). Assuming this is true (which I have doubts about, even conceding the small sample size of the Judiciary), I wonder why. I have a few theories: (1) conservative judges are more likely to have been politicians than academics (probably true because academics are more often "liberal"); (2) conservative personalities are more comfortable in their own skins and more cognizant of the need for social pleasantries; (3) liberals have lost their senses of humor. This, by the way, is Tucker Carlson's argument in this week's New York Times magazine.

I have to say I find any of these three reasons persuasive. Reading another article this week (not online), about speech codes and their effect at Harvard, I can see how hard it is to remain part of the establishment as a liberal while being comfortable with a joke.

Of course, it might be better to be dour than to rely on hilarious double-speak.

D I know I need to fulfill a promise to give the libs. their iconoclast dues, but: (1) I'm suddenly very busy; and (2) I wanted to take a moment to note for you, and our readers, this article from the Times, about the movement to make male circumcision illegal. There is a test case pending where the parents of a child are suing for a procedure that went perfectly well, without complications, and with the mother's consent, on the theory that consent was not fully informed because of the potential "diminished sexual sensation injury".

Both sides in the case, and several advocates, say the next stage of the battle will ask whether a parent should be allowed consent to circumcision at all, in light of the practice's alleged non-existant medical benefits.

I find this outrageous, although one has to take such articles and such advocates with a grain of salt (although hopefully not on any wounded areas). It got me to thinking. Would a federal statute (the "Slice and Dice Act") that immunized doctors who performed non-negligent circumcisions be Constitutional under Lopez? Given that the administration has proposed a medical malpractice reform bill, the answer must be probably. But, why? Although the conduct (operations) cost money, the transactions are local and fall pretty clearly within the State's police/welfare powers. That is, how does medical malpractice reform on the federal level fit into the Commerce Clause. Is there a way to distinguish the proposed Slice and Dice Act from a "big" medical malpractice bill? The Times says that the bill for circumcisions annually is between 150 to 270 million, but we know from Morrison that this kind of aggregation will hold little water with the nine.

Tommorow I promise I start posting something more about your ends-meet analysis. On our lovely new format.

PLAINSMAN: I'll post more tonight, but here's a tentative try at jump-starting your search for decisions in which the liberal Justices cast votes that reflect their judging philosophies, rather than the "substantive" orientations often assigned to them as individuals.

I suppose one example would be Souter and Ginsburg's votes in Eldred v. Ashcroft, the just-decided copyright case upholding the CTEA. True, I don't know whether either Justice was actively offended by the outcome that they voted for. But it's hard to imagine either of them was thrilled about stretching out Disney's intellectual property revenues for another generation. Nevertheless, these two Justices think any limits on Congress's enumerated powers are generally confined to the ordinary political process. Their votes in Eldred can be seen as reflecting that.

On the other hand, what do you make of New York v. United States (1992) -- the Tenth Amendment "legislative commandeering" case? Justice Souter joined with the majority in striking down the "take title" provision of a federal statute that sought to coerce states into enacting regulatory programs for disposing of their internally generated radioactive waste. The truth is, I don't know exactly how to describe Souter's judging philosophy (or "super-ideology" as you put it), so I don't know how to make the pitch that his New York vote (as opposed to his Eldred vote) served that philosophy.

I'm not being derogatory. Souter just doesn't seem to be explicitly concerned with method in the way Scalia and Thomas are (or aspire to be). I don't suppose Justice Jackson, for example, had much of a "super-ideology" in this sense.

I'll think more about this challenge when I get the chance.

Eugene Volokh had an entertaining contest last week -- he observed that each sitting Justice has, at one time or another, voted to strike down federal legislation on the grounds that it exceeds Congress's enumerated powers, and he challenged readers to come up with the cases. Prof. Volokh's answer list is here. While it includes Justice Souter's vote in New York, none of the other answers seems to fit your description.

I like this new template.

THE MANAGEMENT: Behold another template change. How's that? I think it's as readable as our previous template (Simple). Plus we've got the blurb back, and our e-mail address.

D
Reverse Order
First, I'm not going to wade into a debate about Article II, for three good reasons: (1) it has been well explored by people with free Westlaw connections elsewhere; (2) my point wasn't on the merits of the decision, but rather that in the final analysis your "ends meet" cases aren't politically relevant; and (3) we lack a common perspective from which to reach a reasoned consensus on this case [it's still too hot to handle].

Second, On Apprendi and Kyllo, you misunderstand me. In both cases, I had thought you were using sensible in a descriptive sense - the opinions are well reasoned, they recognize and balance the needs of society against the force of the Constitution's text, they "exhibit good sense [meaning they are sound and reasonable]" (Am. Heritage Dic.) But you clearly mean something entirely else. You mean that they are logical extensions of a textualist understanding of how the Constitution is intended to operate, divorced from any sense that societal needs should determine the document's meaning. This is surely a defensible world view, but "sensible" it is not. The norm you are really using is "textual fidelity;" while the practical proceedure you praise is "analogical reasoning." If Apprendi had been applied retroactively (as not one of the Courts of Appeal considering this issue has been willing to do) thousands of sentences would be overturned. It isn't the "Guidelines" that are in danger; its the machinery of the system, which can only accept so many errors and do-overs. [Look at how the criminal justice system in Ohio has ground to a halt because of a few dozen dealth sentences and a handful of known errors). I agree with you that Apprendi is a new rule under Teague, and I agree it should be retroactively applied. But that holding wouldn't be sensible, it would be revolutionary.

Third On "pragmatism" and "mushiness". Judge Easterbrook, god bless his brilliant mind, makes a powerful argument. But, it strikes me that it is well refuted by Duncan Kennedy's observation that legislators never, ever, react to common law decisions in the direct way that Professors would like them to. Let's spend a whole week on this: decisions of Justice O'Connor that "people" say create "mushy" rules, and legislative reaction thereto. I'm going to place a bet: either there will be no reaction, or the signal received by the legislature will be so entirely different from the signal sent by the Court that we will have reasons to doubt whether every crystal clear rules would have made a difference. But lets not have this discussion this week. I'm still busy ripping into your idea that ends-meet cases are relevant to how we should understand the Court's role in society. Rather they fulfill, as I have argued, the sweet dreams of Professors desperate for reasoned argument by a Court governed by power.

Fourth Lots of love from the readers on this blog's style, no love on my request for help for examples of liberal Justices writing against form in the name of their "super-ideology" (examples of such super ideologies could be J. Ginsburg's civil procedure, J. Breyer's cost-benefit analysis. The first person who responds, in the case that you, the readers, are in need of the celebrity that we have renounced, will receive a shout out by name.

THE MANAGEMENT: Don't worry! You've come to the right place. We're playing around with the template for this blog.

We concluded that the old template's narrow text column and blue background were too hard to read. Time for it to go. This template is better, but with it we've lost the blurb at the top describing the blog.

If we had a year of high school HTML, this would not be a problem. As it is, we'll have to keep tinkering. But things will settle down soon.

Plainsman: Excellent, excellent. Let me reply to your responses in order.

1. Apprendi redux. It may be that few people actually know about the Apprendi decision. Nevertheless, it makes a difference. I suspect that before Apprendi more than a few criminal defendants were shocked when they learned that their maximum sentence was being hiked up in a post-trial hearing, based on a bunch of stuff written in a PSR, never presented to the jury, because some judge believed that stuff by a preponderance of the evidence. Thus, I view the case as an important vindication of a common-sense understanding of the jury trial right.

I am sympathetic, though, to your point about the procedural limits imposed on Apprendi. The non-retroactivity doctrine that governs collateral review of convictions is not easily squared with shared notions of fair process.

This is especially true of the possible retroactivity of the new rule in Apprendi. It is surely the strongest candidate we've had in thirty years a case that falls into the rare category of "watershed" constitutional holdings that should be applied retroactively on habeas. Alas, while the Court has not squarely decided the point, its recent opinions suggest that it is very unlikely to hold Apprendi retroactive. See, for example, the unanimous holding in U.S. v. Cotton (2002) that an Apprendi claim not raised in the trial court is subject to deferential "plain error" review -- even if the trial took place before Apprendi was handed down. But you can't gainsay the value of the "ends meet" majority's holding in Apprendi simply because they don't appear to support a further holding of retroactivity.

As a more general response to the point about the "windmill of cynicism," I think it's hard to gainsay the principled commitment in Justice Thomas's dissent in Harris v. U.S., which was a logical outgrowth of his Apprendi concurrence. Justice Thomas was ready, on constitutional grounds, to impose serious new limits on current sentencing procedure under the U.S. Sentencing Guidelines. It is an important issue, and that cannot be viewed a substantively "right-wing" outcome. To the contrary. Such a ruling would have significantly reduced the sentences of lots of future criminal defendants at the margins -- those who could be proven by a preponderance of evidence, but not beyond a reasonable doubt, to have engaged in minimum-enhacing conduct such as, e.g., brandishing a gun.

Certainly the four Apprendi dissenters (led by Justice O'Connor) thought the Guidelines were in danger from Justice Thomas's reasoning. It was one of their themes. And the Harris dissent could have easily prevailed -- Kennedy could have decided that Apprendi meant what Thomas thought it did; Breyer, who actually admitted that Thomas was right on Apprendi's consequences, could have decided to accept Apprendi.

2. Pragmatic Justices. Point taken on my attribution of "mushiness." But "pragmatic" is by no means obviously uncomplimentary. It was just a recognition of the point you made: that in some ways, Justice O'Connor's response to cases seems to reflect a perspective like a legislator's.

The problem is that when the judges balance everything like legislators, it makes it hard for the actual legislators (including the legislators who enact a Constitution) to accomplish their jobs. Whereas when legislatures know they act against a background of fixed judicial methods of interpretation and application, it's easier for them to enact laws that (if upheld) will actually have the effects the public and their representatives want them to have. This is a standard point developed by Scalia and Easterbrook. Indeed, Easterbrook goes so far as to urge that judges should apply somewhat "mechanical" and "simple-minded" techniques to statutory interpretation. That way the legislature can more easily predict the consequences of its enactments.

A final thought: if O'Connor's brand of pragmatism does raise issues of separation of powers and predictability, then isn't it fair to say that, while "the world hasn't ended," still the problems would deepen if we had more Justices like that -- a whole Court like that?

3. Kyllo. I think Kyllo is sensible under the principle I tried to express in my first post: if at the time of the Founding we had a degree of reasonable privacy such that the constable couldn't freely walk inside your house and look around for contraband, then one of the few available ways to preserve the same objective degree of privacy through changing times is to reach a holding like Kyllo's: the police cannot use 2003 technology to "walk" into homes and see stuff they could not see in 1789. Which is essentially how Justice Scalia reasons in his opinion for the Court.

The interesting question is how cleanly the courts will apply (what I view as) Kyllo's principle in future cases. Will the holding be extended to protect businesses, as well as homes? If the cops need a warrant to physically walk into your locked business (and in most cases they do), then it should. However, much of the Kyllo opinion seems to have been deliberately worded quite narrowly, so as not to invite blithe extensions of its holding. Indeed, the lower courts have made a rather reserved use of the case. We'll see.

4. Summing up. Nice try, roping me into a discussion of Bush v. Gore, D.! Next thing I'll be posting my credit card number and the embarrassing stuff that happened at summer camp when I was eight. Only thing I'll say is that to make the cynicism charge stick to the Chief, Scalia and Thomas one needs to discredit the Chief's concurrence based on the language of Article II.

Hair-splitting

D It's legal anthropology month here at Sub Judice! One week, we look at how society is corrupted by legal openness, the next, we examine a very small, insular, society of nine, reading their leavings for insight into the future. My responses to your post follow:

First, on Apprendi, you strike me as exactly right about how "ordinary folks" would, theoretically, react to the decision had they heard about it. But, I'm pretty sure that even fewer people have heard of Apprendi than have heard of Lopez et al. Whether the jurisprudence is "sensible" or not depended, of course, on the later decisions by the Courts of Appeal refusing to apply it retroactively, keeping many prisoners in jail whose incarceration violated the "bright-line, categorical" "jury-trial guarantee".

Second, it is dangerous to say that "O'Connor and Kennedy" like rules to be "mushy and pragmatic". Who goes around saying "Hey, I like mushy rules. Love 'em, because I'm so pragmatic and I think mushy rules don't encourage litigation." No one, except for people insulting the mushers. It would be much more accurate to say that O'Connor (especially) is like former Justice White: her superideology is that of a pragmatic legislator, and not, as with S&T, an ideological professor. This means her decisions end up with balancing. But she's been effectively running the Court for ten years (arguably since Casey), and the sky hasn't fallen yet.

Third Measured against what norm is Kyllo a "sensible holding?" Look, I can see how its a holding that vitalizes the Fourth Amendment, sort of (although, of course, S&T's refusal to see the Fourth Amendment outside of the home kind of makes the Amendment a refuge for the propertied). But is it really sensible? I don't know what that means. There are big differences between scanning a home with an imager (which, at least at this stage, can not do what they can in movies and instead give only very vague images) and actually entering the home. Moreover, from the perspective of law enforcement, now they're just going to go get a warrant and enter the home, instead of (a la Terry) doing the less invasive thermal search first and possibly not entering the house. The principle, for S&T, isn't that the police can't use technology to "walk" where they can't go, but rather than homes are homes are homes, and you need warrants to get into them. Distinguishing homes from, say, cars, isn't "sensible," its a value judgment. But, you are right in that it is an instance of S&T's textualism priviledged over their normal intuition (which, in this case, would be that the exclusionary rule was wrongly decided).

Ultimately, although I think these unusual splits are interesting, in that they appear to pit the ends against the "center," I think focusing on them puts the trees before the forest. Bottom line, not every one of the five would vote with Bush (or, more likely, Rove) in every case, but all five voted with him when it counted. These cases interest AFTNbecause they suggest that not every case is a mere vote counting exercise, that analogy and argument count, and that precedent counts for something. Its cases like these that law professors use to teach their students to reject cynicism ("See, Lucy, Justice Scalia will vote to protect prisoners!"; "James, Justice Thomas isn't conservative, he's an ideologue! Look at Carmell"). These opinions preserve the (partial) illusion that the nine are ruled by law, and not the five.

Tommorow, though, I'll endeavor to join you in tilting against the windmills of cynicism by finding three cases where supposedly "liberal" Justices abandon the "liberal" result in the favor of their super-ideology. Readers of this blog are invited to submit suggestions via email at sub_judice@hotmail.com. Keep in mind that I don't really feel it fair to use Stevens as an example, because his opinions: (1) have changed substantially over time; and (2) are not seen, by most readers, as particularly consistent.

A good point on tone

Plainsman: Professor Stuart Banner has a short, well-taken post this morning in Volokhspace about how judges should write opinions in hard cases.

Banner writes:
"It's a rare opinion that says 'This is a close case; there are good arguments on both sides; on balance we choose side #1 for the following reasons, but we acknowledge that reasonable people might disagree.' The normal style is to affect a false certitude about the result, and to disparage the arguments on the other side. Lawyers have to write this way, of course, and it's understandable that judges would find it hard to drop that tone when they become judges. But writing honestly about the hard cases isn't impossible. That's one of the things I like about Justices Souter and Ginsburg -- when a case is hard, they'll often acknowledge the strength of the arguments against their positions. I wish more judges were like that."

Indeed. I share Banner's view that this is one of the best qualities of Justices Souter and Ginsburg, one that some other accomplished Justices would do well to emulate from time to time.

Opinions don't even need to go quite as far as the conciliatory language in Banner's example. Saying "This is a close case; there are good arguments on both sides; on balance we choose side #1 for the following reasons." strikes me as right.

I also think Justice Souter's generally acknowledged tendency to write overly long opinions stems from this attitude. He recognizes that cases are tough, and he wants to be exhaustive in his analysis. Thus, while certain sharply uncharitable legal pundits love to rip on Souter's prolixity, I think he deserves some slack.

Where The Ends Meet; Or, Rules, Discretion, and Unusual 5-4 Splits on the Supreme Court

Plainsman: For nearly a decade it's been standard to conceive the Rehnquist Court (how strange it will be, for younger lawyers like us, to call the Court by a different name one day, perhaps soon) as divided into two fairly stable blocs of Justices that oppose one another on close issues. As the story goes, there's a substantively left-leaning bloc composed of Justices Stevens, Souter, Ginsburg, and Breyer, and a narrowly dominant, substantively right-leaning bloc that includes the Chief Justice and Justices O'Connor, Kennedy, Scalia, and Thomas. The wobbliest member of the dominant bloc, ready to let loose a fact-limited separate concurrence at the slightest provocation, is Justice O'Connor, the Great Pivot, the make-or-break Justice who is rarely found in dissent.

It would be dumb to deny that the standard narrative has explanatory power as a model of the Court's behavior. The list of important decisions reflecting this five-to-four split is long.

Highlights would certainly include: U.S. v. Lopez (1995) (reading the text of the Commerce Clause back into the Constitution); Seminole Tribe of Fla. v. Fla. (1996) and its various progeny (launching a new, free-floating jurisprudence of state sovereign immunity from private suits under federal law); Williams v. Taylor (2000) (interpreting the 1996 AEDPA statute as imposing a new substantive limit on the power of federal courts to grant habeas corpus relief to state prisoners); United States v. Morrison (2000) (re-affirming Lopez by striking down a private civil remedy provision of the federal Violence Against Women Act on the grounds that it exceeded Congress's authority under the Commerce Clause and 14th Amendment); Republican Party of Minnesota v. Kelly (2002) (striking down, as violative of the First Amendment, portions of Minnesota's ethics code that imposed limits on campaign speech by candidates in judicial elections); and Zelman v. Simmons-Harris (2002) (upholding Cleveland's voluntary school voucher program as consistent with the Establishment Clause).

Oh yes, there was also a little case called Bush v. Gore (2000).

Despite the importance of this split, the Justices sometimes break ranks. More than that, their votes in five-to-four cases sometimes reflect differences in judicial method that cross-cut the simple "left"/"right" taxonomy. The common thread is Justices Scalia and Thomas. Their originalism (which I have sometimes also referred here as textualism, though these are slightly different terms with different emphases; Scalia is more textualist, Thomas is more originalist) and preference for clear rules leads them to join with the liberal Justices in certain cases. The results cannot be captured by the usual division. (For a classic attempt at a cross-cutting taxonomy, see Dean Kathleen Sullivan's famous Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22 (1992).)

Why focus on five to four decisions? First, because that happens to be how most of the cases of this type come out -- one of the liberal Justices usually refuses to join the eclectic majority. Second, because in a five-four case each majority Justice's vote is outcome-determinative. There can be no suggestion that a given vote was just for show, or to add to a foregone majority in order to permit the Court to speak with a more unified voice. Commitments are sharply exposed.

Here are three examples, all significant constitutional cases, all decided within the last three years.

1. Apprendi v. New Jersey (2000). Held, Under the Sixth Amendment's criminal jury trial guarantee and Fourteenth Amendment due process, no criminal defendant can be subjected to greater punishment than the maximum set by statute, unless all facts used to increase his punishment are submitted to a jury and found beyond a reasonable doubt. (Except for prior convictions. There, after all, the underlying facts of the earlier conviction have already been found beyond a reasonable doubt.) Majority: Stevens (for the Court), Scalia, Souter, Thomas, and Ginsburg.

Apprendi seems to be one of those cases that you have to have attended law school to find difficult. Which is to say, while a number of thoughtful lawyers (such as the four dissenting Justices) question it, in my experience, laymen to whom Apprendi is explained are surprised it took the Court until 2000 to decide the issue, and can't believe that it almost came out the other way. If the law says robbing a bank will get you up to twenty years, then the jury has to find beyond a reasonable doubt that you robbed a bank before you can get sentenced to twenty years. And if robbing a bank with a gun means you can get ten more years on top of it, then the jury should have to find beyond a reasonable doubt that you used the gun. Otherwise the courts are playing fast and loose.

Using standard handicapping, Stevens, Souter and Ginsburg's votes in Apprendi could be understood as part of a commitment to read constitutional protections in criminal cases somewhat broadly. Rehnquist's opposite vote would reflect the opposite tendency. O'Connor and Kennedy like rules to be mushy and pragmatic: the jury has to find you guilty, but then the judge can clean up around the edges by finding aggravating conduct. And Breyer is generally a fan of judicial discretion and not a big fan of juries. Scalia and Thomas, however, construe the jury-trial guarantee as bright-line, categorical.

Apprendi has had important progeny. In Ring v. Arizona (2002) the same Justices held that in capital cases, Apprendi requires a jury to find all the facts necessary to impose a death sentence. Justice Kennedy joined them, since Apprendi is now the law. Justice Breyer concurred in the judgment with a somewhat questionable opinion invoking the Eighth Amendment; he still rejects Apprendi.

Consider: if Scalia and Thomas's places on the Court had been occupied by pragmatic, "moderate" Justices of the O'Connor stripe, none of this sensible jurisprudence would have become law.

In Harris v. United States (2002) (five to four) we learned that the supposedly archconservative Justice Thomas was primed and ready to punch a big hole in the U.S. Sentencing Guidelines by applying Apprendi's rule to facts that increased mandatory minimum sentences as well as maximum sentences. But Justice Scalia left the Apprendi coalition at this point and provided the key vote to sustain judge-found mandatory minimum "sentencing factors."

2. Kyllo v. United States (2001). Held, standing outside and using a thermal imager to scan a marijuana suspect's house for unusual heat-producing inside activity is a search under the Fourth Amendment, and the police need a warrant to do it. Majority: Scalia (for the Court), Souter, Thomas, Ginsburg, Breyer. This was particularly noteworthy because virtually all of the lower courts had held that such hi-tech surveillance was not a search requiring a warrant. Once again, Justices Scalia and Thomas's votes in Kyllo can be understood as reflecting a commitment to certain constitutional bright lines. While Scalia's opinion is nuanced, I think it is underpinned by the following clear principle: what thermal imagers do, in effect, is to let the police "step inside" your locked home while they're still sitting in their squad car outside, and look to see if you're growing pot (the heat-producing lamps show up as unusual patterns on the imager). It is clear under the Fourth Amendment's original meaning that police cannot physically just walk into your home and look for pot; they must get a warrant. So applying the Fourth Amendment to hi-tech surveillance means holding that the police cannot use technology to "walk" where they could not go using their unaided senses. That is how I like to understand Kyllo. It is a hugely sensible holding.

3. Carmell v. Texas (2000). Held, under the Ex Post Facto Clause, a state cannot convict a defendant of sexual offenses using evidence that was legally insufficient to convict him at the time of the offenses, where the legislature eased the evidentiary requirements after the offenses but before the trial. Majority: Stevens (for the Court), Scalia, Souter, Thomas, and Breyer. Pretty much everyone agrees the Ex Post Facto guarantee prevents the state from radically changing the rules of criminal law in mid-stream, such as by making something illegal that was not illegal when done. The question in Carmell was how far the Court was willing to take the simple, clear principle of "no changing the rules in midstream." Three liberal Justices, Scalia and Thomas were willing to extend it quite far, to encompass changes in the sufficiency of evidence.

So, those are my three cases. I think the majority got each one of them right. In my view, whatever else they are, they're poster pieces for the benefits of "the Justices of Rules" over "the Justices of Standards." Are these decisions collectively as important as, say, the 5-4 move toward federalism, which is better explained by the "standard model" of the Court? No; but they are far from trivial. The "ends meet" phenomenon is perhaps not a motif of the current Court, but it is a distinctly discernible letimotif. Republican-appointed judges tend to fall into different intellectual phyla, and it is well to pay attention to their differences. One of them might even be right.

What do you think of all this?

Plainsman: Ergh. Have spent most of today at the office. Will post after dinner.

Sincere condolences about the Eagles, D.

On deck for next week

Plainsman: So, come tomorrow, are you game to start discussing 5-4 Supreme Court decisions where conservative and liberal Justices come together to outvote the center -- what I've called "ends meeting" decisions? If so, I'll kick off then with a substantial post.

It should be good; we can go in a lot of different ways with the topic. My main exhibits will be Apprendi v. New Jersey (and its progeny); Kyllo v. United States; and Carmell v. Texas, all moderately glamorous constitutional cases. I'm sufficiently reckless with our audience's attention span, though, that I might even haul in Gustafson v. Alloyd Co.(1995), a 5-4 case interpreting Securities Act Section 12(2) (smokin'!), which came out the wrong way but whose coalition of dissenters also embodies my point.

Me, I'm interested in these cases for the textualist angle -- they crisply illustrate the difference between what you get (assuming "you" are a sitting Republican U.S. President acting with the advice and consent of the Senate) when you appoint textualist Justices like Scalia and Thomas, versus what you get when you appoint more substantively conservative Justices like, I would submit, the Chief. But you (assuming "you" are you, D., or a reader) may be interested in one or more of these decisions on their own terms.

Open-ended, I believe is the term.

Transparency v. Infotainment, again

Plainsman: You know, I wonder if your last post didn't inadvertently supply our blog with a motto. Sub Judice: "There are lots of good reasons to question why putting everything on the web is a good idea."

Heedless of this wisdom, let me say a bit more about your commodification argument(s). I do not consider myself to have tacitly adopted your positions just because I copped out of posting yesterday.

[By the way, I tried to come up with an equally dorky comeback to your Uniform Commercial Code analogy. I was going to say that the accepting-by-silence rule doesn't apply here because this blog is not "between merchants." But then I reflected on the subject matter we've been addressing this week -- how law blogs create implicit "markets" in recognition -- and realized that it wasn't so obvious... :) ]

Start with common ground. We both seem to agree that there is a danger today that court opinions will become increasingly idiosyncratic, flashy, and wacky, and that much of this danger is created by the Internet, which vastly increases the speed and scope of publicity given to opinions. We agree that law blogs are an important part of this process. They create incentives for judges and clerks to "spice up" opinions. We seem to agree, too, that while opinions can and should always strive for good writing, they should not be flashily written. This, in a variety of ways, endangers the legitimacy of written, decisional law.

My response to this is simply to say we should try to encourage restraint and good manners in judicial writing. Big-shot commentators in academe and the Internet, as well as podunk commentators like us, should try to direct their praise to more classical opinion-writers. Judges should reflect on their position and their obligations to promote the administration of justice. Newspapers should send more of their journalists to those fancy one-year "intro to the law" programs run by certain law schools, so they can write up cases in a more careful and clueful fashion. Etc.

But in my view, that is the most we ought to do -- try to change things at the level of knowledge and mores. Bloggers should keep on blogging. (Apologies for echo of "Higher Ground.") Appellate courts should keep taking steps to promote public access to their opinions.

You, however, think the problem reaches much deeper, and you endorse stronger solutions. You think that as long as opinions are being shot up on the Internet as soon as they come down, commentators are inevitably going to exploit them in bad, infotainment-type ways. Thus courts should seriously consider pulling their opinions off their Web sites.

I can't go along with this. For me, ultimately, the transparency point has to trump: it just can't be a bad thing, on balance, for average citizens to be able to find a judicial opinion, easily and for free, when they want to. And not just average citizens, but how about impoverished prisoners? (Of course, I can hear you responding that in practice, it will at best be a wash; prison administrators will probably use the availability of free legal info on the Internet as an excuse to scrap the prison legal library. Sadly, you may be right.)

Still. The whole Western system of having a known, publicly administered law -- especially when combined with a democratic political process -- presumes that the right to make responsible use of such information is more important than the danger of its misuse. Even if most people don't make use of that right in practice, we should still support it and aid its exercise. If we start questioning this axiom in the particular case of whether judicial opinions should be publicized on the Internet, it would be hard to cabin the doubts from spreading more generally. It begins to remind one of the unpalatable constitutional vision of Professor Cass Sunstein and Justice Breyer, which (I would argue) boils down to governance by an insulated, benevolent elite of credentialed bureaucrats, with minimal popular input. I know you oppose that vision, but I think your current lines of thought lead you into the same neighborhood.

In sum, I admit the reality of the dangers you've diagnosed, but I can't sign the petition.

PS: a few posts back you encouraged me to read Margaret Jane Radin 's 1987 HLR article on "Market-Inalienability." I read part of that article in law school. Either our Property or our Torts teacher recommended it; I don't recall which. I thought it was great; really, I've never read anything by Prof. Radin that wasn't stimulating. Your mention of it makes me want to go back and re-read.

D You've asked me to return to the commodification issue with an ultimate post, because you are "tapped out" on the topic. I'm going to take your silence as establishing an account stated on my post (that is, having failed to object in a reasonable time, you are now deemed to have accepted my arguments). The question becomes: what to do?

I think the answer has to be a freeze and partial roll-back of the government's practice of putting legal content automatically on-line. This proposal is not entirely novel, having been considered by several judicial conferences that questioned whether privacy interests were being ignored by on-line law. But privacy concerns, although important, are never going to stop the on-line juggernaut (at least they haven't so far, in any real arena in which the two have met). Will commodification? Here is the basic argument that concerned lawyers should put to Judges to help convince them to stop putting their opinions online, and to stop asking for electronic filing (both practices contribute mightily to the commodification effect):

1. Digital content is being used as entertainment, not as education. The strong argument for putting law online is educative - a version of your argument, made before your silence bound you to all of my posts - the idea that putting law online make citizens more aware of its content, educating them about civic values. This argument is I am certain, likely to be totally devoid of empircal support. Although it is true that individuals can, in theory, access legal content directly at the courthouse portal, most do so through entertainment portals (the Times, MSN, Yahoo, etc.. Undoubtably (although the argument needs empirical support), the place from which you download a piece of information affects how you perceive it (consider the difference between looking at a piece of art in a museum, as opposed to in a church, as opposed to in a college dormroom). When you read law as a piece of entertainment from such an outlet, its educative effect is diminished, if it is present at all.

2. When legal content is treated as entertainment, lawyers and Judges are under subtle pressure to act like entertainers. In ten years, should current trends continue, I think we'll see a radical shift in what opinions look like. Opinions will contain more visual content, and will have hyperlinks (think about the way such links change the way we read on the web). Because of the pressures to cite multiple, recent, sources, each individual opinion will be less likely to serve as a dispositive, long lasting, precedent. Such changes raise legitimacy concerns (hard to quantify, and equally hard to undo).

3. You can't unmake an omelet There are lots of good reasons to question why putting everything on the web is a good idea, and no (convincing) reason not to stop and think about these issues now. Moreover, getting big media companies hooked on a steady diet of free legal content can't be good; it means that any later changes by the Judiciary will run into pressure from those companies, attempting to defend a profit center. Is it possible that Viacom could sue the government, arguing that the first amendment requires online dissemination of opinions?

In short, it is not too late to stand against the tide. What do you think about a petition drive?

Plainsman: By the way, weren't we talking about commodification and law blogs? Tomorrow I'll have to bring things 'round.

Strikingly innovative thoughts on Eldred v. Ashcroft

Plainsman: Not bloody likely. However, as most of the blogosphere has weighed in on the big copyright case in the past 36 hours, I will chip in.

So, we have an opinion for the Court by my favorite liberal Justice, joined by Souter, Rehnquist, the two textualists, and the two moderates, with individual dissents by Justices Stevens and Breyer. Held, the CTEA, extending future and existing copyrights by 20 years to 95 years total or life-plus-75, is constitutional. I'll state up front my agreement with you that the CTEA is a lame, pork-ridden statute that should not have been enacted. Query whether a "Democratic controlled Congress" would really give you much solace from these sorts of bills. Weren't Sen. Feinstein, Sen. Leahy, and Rep. Berman all over it?

Now, on to the law.

I have little to say about the First Amendment arguments that Professor Balkin considered so closely. I suppose I am just basically satisfied with Justice Ginsburg's points that (a) copyright doctrine already incorporates 1st Amendment-protective limits like the fair use doctrine; and (b) there really is a 1st Amendment difference between being able to make your own speech and being able to use someone else's speech.

Instead, let me jump to the Copyright Clause arguments. My big question is whether the result in Eldred is acceptable from a textualist standpoint. Professors Lessig and Reynolds think no. Professor Kerr at Volokh Living Omnimedia thinks yes, and Howard Bashman agrees.

(DIGRESSION: By the way, in his piece Prof. Reynolds refers to the five pro-federalism Justices as "strict constructionists." I think that's a contentious description. Justices O'Connor and Kennedy aren't that by any stretch of the imagination -- what does Prof. Reynolds make of the Casey joint opinion? Scalia too has consistently rejected that description. His word is "textualist." As Scalia is at pains to explain in his book, the idea is to construe constitutional language neither "strictly" nor "liberally," but fairly -- that is, as meaning what a rational reader would understand it to mean at the time of enactment. "Strict" connotes an extraneous policy judgment that is not part of the theory.)

Anyway. On the case as it confronted the Court, I agree with Messrs. Kerr and Bashman, but with reservations. Let's look at the Clause.

It authorizes Congress to secure copyrights "for limited times." Set aside, for now, the distinction between extending existing copyrights and setting limits for future copyrights. Is 95 years a limited time? Yes. It is not perpetual. Next question. Justice Breyer's discussion of how a limited, 95-year copyright conveys 99% of the economic value of an unlimited copyright is lucid and persuasive, but not relevant. By analogy, as Justice Scalia might have pointed out in his eminently textualist dissent in Maryland v. Craig (1986), letting a witness for the prosecution be questioned behind a closed-circuit TV may be 99% as good as the face-to-face "confrontation" promised to criminal defendants by the Confrontation Clause, but that does not make it "confrontation."

The real crux of the case is the argument that the Copyright Clause simply does not permit retroactive extensions of existing copyrights: that it embodies the notion of a quid pro quo, like patent law, granting authors a limited monopoly in order to give them incentives to produce useful creative works. Once the work has been produced, however, it's arguably mere dead weight loss to give the author an even longer monopoly. And there's a plausible textual basis for this argument. The Copyright Clause begins by saying that Congress has power "[t]o promote the Progress of Science ... by" granting authors exclusive rights for limited times. You might think this preamble substantively imposes a quid-pro-quo requirement. Such a no-retroactive-extensions rule would have an attractive, bright-line quality; it wouldn't be like having the Court try to determine how many years is "too long."

And indeed, the Court admitted it could not cast this point aside as easily as some of Justice Breyer's arguments. Still, it gave three reasons for not adopting a strict quid-pro-quo reading of copyright. One, the petitioners did not in fact make this argument -- not quite, even though Judge Sentelle had accepted it in the court of appeals. (Thanks to Juan at the Volokh Popular Front for pointing this out in a post.) But they did make it in a roundabout way, saying that the preamble threw light on what "for limited times" meant in the remainder of the Clause.

So the Court went on to reason that (2) there were rational grounds for thinking that retroactive extensions might "promote the progress of science" -- mainly by harmonizing U.S. with European copyright law. I was not blown away by this part of the opinion, but then again, it's only rational basis scrutiny.

Finally, (3) there is a centuries-long, virtually unbroken Congressional tradition that permits extending existing copyrights at the same time future ones are extended. Number (3) strikes me as the most solid interpretive argument. The Court pointed out that previous statutes enacted in 1790, 1831, 1909 and 1976 had all extended existing as well as future copyrights.

(This also drives home the big potential reliance costs involved in the case. If the Court struck down the CTEA's extension of existing copyright terms on the textually attractive "no quid pro quo" basis, it was going to face an awful snarl of retroactivity problems with regard to the validity of copyrights extended by the previous statutes.)

So what's the conclusion? Bad statute, OK decision. As for the two textualists, ultimately, I think Justice Scalia could defend his vote with the majority in Eldred. He has proven himself willing to temper his textualism by looking at American tradition and stare decisis/reliance interests. I have more qualms about Justice Thomas's vote, because he is generally the most unblinking, damn-the-torpedoes originalist on the Court, and without the argument from tradition and reliance costs, the petitioner's textual case was not bad.

One last thought; I'm not sure if there's anything to it. The majority in Eldred disclaimed any interest in policy reasoning when it rejected the petitioner's proposed analogy between patent and copyright. (Justice Stevens's somewhat choppy dissent was big on the patent/copyright similarities.) Textually, that was the right way to proceed; both the patent and copyright clauses (really, it's one clause) are governed by the same preamble -- "to promote the progress of science."

But lots of scholars over the years have opined that copyright really is different from patent; it serves different policies. It's not properly conceived as (merely) a utilitarian quid pro quo. Instead, we want copyright protection to be strong because in some sense it reflects a natural right of property, an intrinsically valuable connection between the individual and her creative work product. To me, the most interesting part of Justice Stevens's dissent was the portion where he canvassed the historical conceptions of copyright. Seems this kind of "natural rights" thinking about copyright played a significant role in 19th century legislative politics.

Do we see, in the Court's willingness to give Congress a wider Constitutional berth in defining copyright than in defining patent, some sort of hidden policy conclusion along these lines?