Thursday, February 27, 2003

D: Fred Rogers died Thursday at 74. Reading the lovely obit, I learned that his popularity peaked just after the years when I watched him. I remember him as an emotion: mellow. But, I bet, it will not be long before some conservative hack suggests that his passing marks the end of an era of (overly tolerant) liberal, 60s, counterculture. Nuts to that.

Wednesday, February 26, 2003

D: On the letter, it is probably fair to conclude that there are deontological and instrumental wings within the WLF. The instrumentalists, whoever they are, clearly weren't thinking about F.R.C.P. 34(a).
D: Judge Kozinski's dissent was {gasp} a bit overdrawn, I thought. Several analytical issues are worth some further discussion:

First The point is not that there is some private property that can be taken without compensation, it is that there is literally no just compensation possible. As the majority points out, without IOLTA is the practice of banks to put funds placed in escrow into non-interest bearing accounts; that is, only by virtue of IOLTA is there any interest to take. Assume the Court finds IOLTA creates a taking requiring compensation. There then will be no IOLTA statute. To establish the value of compensation, it make sense to look at the resulting non-IOLTA world. And what you come up with is that plaintiffs sue for the right to have one's money in a noninterest bearing account. This right has no value . [Note: the dissent does not, in fact, rebut this argument but instead incorporates Judge Kleinfeld's panel opinion.]

Of course, a problem for the majority is that Phillips (the original decision establishing that there was a property right) undermines this logical chain. Phillips holds that there is a property right (without resolving whether there had been a taking). The implicit assumption is that just because the government, in effect, created the right does not mean that we should seperate out the interest income from the principal. Which, no doubt, leads you to your conclusion that Justice O'Connor must reverse herself to affirm the Ninth Circuit. There are several ways we can imagine this change of mind playing out: (1) deciding, as you worry, that even though the property taken was interest it is not compensable because the amount was so small (this ideaI think could be extended to many class actions where individual recovery is miniscule, couldn't it?); (2) deciding that the property taken was the "right to have your money in a noninterest bearing account" and that, therefore, there is no just compensation (the Ninth Circuit's approach); (3) deciding that there was no taking under a "regulatory taking" rubric. Of these three approaches, the latter two would ameliorate the Slippery Slopes worry you expressed. (I agree that E.V.'s article bears further study. But it is very long, and I am reserving only .5 hr for blogging today).

Second A point which the dissent actually made was the physical/regulatory distinction in takings law. As the majority appeared to rely on clearly established Supreme Court law that taking money is, in fact, unlike affecting Kozinski's hypothetical "15 feet" of everyone's "backyard," I'm not sure where he is coming from.

Tuesday, February 25, 2003

PLAINSMAN: Wow, that's an ugly-sounding letter. What could the WLF have been thinking?

Still, as you note, this doesn't make the thorny Takings issue go away. There are two ways to be bright-line about constitutional guarantees. One is to take an admittedly compelling right (say, the Fourth Amendment protection of the home) and refuse to admit any exceptions to it even if outright social disaster is threatened (say, Al Qaeda members have hidden weapons of mass destruction in a randomly selected house). This is the version of absolutism against which the "Constitution is not a suicide pact" aphorism is directed.

The other sort of absolutism is simply the attitude that we should cross all the T's and dot all the I's when applying a given legal rule, even when obeying the formalities will produce some (but not catastrophic) social costs, even when there are no easily discernible concrete benefits from doing so. This keeps the law clear. The attitude rests in part on ideas of judicial restraint. Formalities constrain judges from indulging their policy preferences in a given situation; that is one of their chief merits. As such, they can promote the legal system's equal treatment of citizens, and the public perception of same. In that sense, being strict about doctrine can sometimes bolster courts' legitimacy, not weaken it.

The attitude also rests on a worry about avoiding slippery slopes. In a system like ours, where constituional norms get enforced through case-by-case judging and analogical reasoning, there is worry about the erosion of constitutional prohibitions. The problem with "pragmatic" results is that they can provide a rationalization for the next court down the line to set aside the existing rules even more, eventually devising a wholly new principle. And this happens; it is what happened to the "no government money to religious schools" principle between 1973's Nyquist case and the seemingly irreconcilable triumph of tuition vouchers in Zelman v. Simmons-Harris (2002). One case at a time, it fell away.

This isn't always a danger. But if you asked the folks over at the ACLU why they don't just calm down a little about the Internet smut bans and the after-school Bible study classes and what not, I bet a lot of them would give you a version of this anti-erosion argument. (Here I feel painfully remiss for not yet having absorbed Eugene Volokh's current Harvard Law Review opus on slippery slopes.)

In WLF v. LFW, ultimately, the question I want proponents of IOLTA to answer is why Judge Kozinski's fears are unjustified. If the Supreme Court joins the Ninth Circuit in holding that there is some "private property" of individuals that can, constitutionally, be entirely "taken" without providing compensation, then is Takings jurisprudence going to fall apart? Are bureaucrats going to be newly empowered to run amok?

If I grasp the issues correctly (a real "if" at this point) then the history of the WLF's litigation presents an irony. The Supreme Court's five-to-four decision in Phillips v. WLF (1998) held that, for Takings purposes, IOLTA interest is indeed "property" that belongs to the clients. This was viewed as a victory for the conservative cause of property rights. But now, in WLF v. LFW, if O'Connor refuses to carry this line of thinking through to its conclusion, and gives us a holding that IOLTA is nevertheless not a Takings violation, then existing Fifth Amendment doctrine may end up getting restructured in ways that conservatives will not find congenial.

D: Off-topic I just discovered Prof. Solom's blog. I am very jealous that he gets to sit around and read cool academic papers all day, but I nonetheless recommend it to you.
D: Assume, then, that WLF is not a stalking horse for evil, but actually cares about an absolutist expression of property rights.

I am interested in your comparison with the ACLU, NARAL, and, presumably, according to Alice, the Federalist Society. These groups allegedly share a common understanding of constitutional rights (whether they "belong" to individuals or states): rights must be asserted regardless of social consequences. Pragmatists, moderates and progressives reject this attitude. In response, such pragma-moderate-progressives anthromorphize the Constitution with a variety of vitalizing slogans: (1) the Constitution is not "a suicide pact" (conservatives); (2) the Constitution is a "living document" (progressives); or, least wieldy but of little-appreciated significance, the Constitution is "intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles." (Justice White).

At some level, this is a question about interpretation and legitimacy. Justice Thomas, for example, might argue that when Judges start to look at social consequences in the calculus of a constitutional right, then the Judiciary oversteps its role. Of course, then again, he might not be so constrained when certain social consequences are at issue.

Generally, appellants have a weak position. Anytime a litigant says, in effect, rule for me on the principal of the thing, they better be asserting a less ... trivial ... right than uncompensated taking of economically unviable funds. Moreover, saying to the Court, in effect, "damn the consequences" violates Marshall's principal that we "must
never forget that it is a constitution we are interpreting" (i.e. not a contract of adhesion).
D: Well. My hmph doesn't come so much from an academic article, but from the WLF's fundraising letter. That letter stated that WLF's goal in the case was to "deal a death blow to the single most important source of income for radical legal groups all across the country." The WLF continued continued: "It's an abomination that Iolta can take money that is rightly the property of Americans like you and me and use that money to support programs we oppose, that stand in direct opposition to everything we believe in." IOLTAs are supported by ``groups dedicated to the homeless, to minorities, to gay and lesbian causes'' and other ``radical causes.''

I am ok with taking this takings case out of its social context, so long as we both understand that WLF's motives were, not just "probably mixed," but indeed "pretty dirty and pretextual".

But onto the decision. See my next post, devoid, to the extent possible, of any forbidden pretextual inquiries.
PLAINSMAN: I thought the Washington Legal Foundation's motives were probably mixed, as is usually true of these things. But the facts present a crisp issue of Takings doctrine, and I want to consider the case in that light. Their arguments are by no means frivolous.

I understand where your "hmph" comes from. I recently read an academic article describing the constitutional challenge to IOLTA as part of a set of "silencing strategies" employed by conservatives to shut down left-leaning litigation. Other "silencing strategies" were the movement to limit statutory attorneys' fees, which bore fruit in the Supreme Court's 2001 Buckhannon decision, and the enaction of new Legal Services Corporation rules that bar recipients of LSC funding from conducting certain kinds of impact litigation; e.g., challenging the constitutionality of welfare restrictions.

ADDENDUM: Hey, I read on Bashman that the Court has revealed its two cases for today. Neither is one of our superstar cases.

First is Wash. State Health Servs. v. Guardianship Estate of Keffeler (Souter, J., for a unanimous Court): held, State's use of Social Security funds to reimburse itself for foster care services it provided did not violate federal statutes or regulations. Looks like there's a touch of statutory interpretation hoodoo in the mix here (the noscitur a sociis and ejusdem generis canons of construction) that could be of great interest to certain folks. This is the kind of value that savvy Court consumers want and expect from Souter opinions. Only 13 footnotes in today's opinion, though; a little flabby, if you ask me.

Second is Miller-El v. Cockrell. (Kennedy, J., for the Court, which arguably screws up my clever theories): held, reversing the Fifth Circuit, that the habeas petitioner had made a substantial showing that his rights might have been violated by racially discriminatory jury selection at his trial; therefore, he was permitted to appeal the district court's denial of his habeas corpus petition up to ... the Fifth Circuit. No footnotes. Thomas dissented (gasp) alone. Scalia concurred but called it a "very close case." I'll have to read the opinions more carefully before I reach any view on who's right.

Thus, the Lockyer v. Andrade and WLF v. LFW watch looks ahead to Wednesday.

D: Well, by my count we have thirteen minutes before the Nine pronounce their wisdom on the topic of the day. Which makes now a Schroedinger's catmoment (the link, by the way, is to the original article in which the paradox was described). The danger of blogging now is that the box might open to a dead cat (i.e. that the Court comes out with the IOLTA opinion). So I think I will wait on substantive discussion until later in the day. But, you said: "the WLF's crusade against IOLTA, if justifiable, is justified as an instance of the bright-line, don't-budge, "It's the Principle of the Thing!" approach to safeguarding constitutional guarantees. " Do you think that this represents the WLF's actual reason for opposing IOLTA? If so, hmph.

Monday, February 24, 2003

PLAINSMAN: Of course, I also predicted a few weeks back that Ewing and Andrade would be imminently decided. I was wrong then. If I blow it again this week, I'll shut up about the topic.
Take This: an Interesting new topic for the week

PLAINSMAN: I like your first option best -- let's discuss IOLTA and the Takings Clause, the issue which is currently teed up for the Supreme Court in the the memorably captioned case of Washington Legal Foundation v. Legal Foundation of Washington.

A good starting point for canvassing the issues is the Ninth Circuit's en banc opinion in the case. Judge Wardlaw's majority opinion rejected the Takings Clause challenge for two independent reasons. First, she held that Washington's IOLTA program did not "take" property from the escrowed funds that lawyers deposited on behalf of their clients -- even though the interest generated by those accounts was definitely the "property" of the clients (since the Supreme Court specifically so held in Phillips v. Wash. Legal Foundation (1998)), and the IOLTA program diverted that interest into a state foundation that used it to fund indigent legal services. Second, she held that even if the clients' property was "taken" by the IOLTA program, there was still no violation of the Takings Clause, because the clients were not entitled to any "just compensation" for the taking, since the IOLTA program was designed to confiscate clients' interest only when the amount involved was so small that the individual client could not make economic use of it.

The first part of this analysis strikes me as wrong. The second part, however, is plausible. ... and yet still leaves me uneasy. Conversely, while Judge Kozinski's en banc dissent and Judge Kleinfeld's panel opinion finding a Fifth Amendment violation contain strong passages, I don't think they carry the ball all the way to the goal line. Judge Wardlaw didn't invent the "without just compensation" qualifier; it is right there in the text of the Clause.

Therefore I like this topic for four reasons:

(a) it raises fascinating analytical issues;

(b) the case is a close one;

(c) the WLF's crusade against IOLTA, if justifiable, is justified as an instance of the bright-line, don't-budge, "It's the Principle of the Thing!" approach to safeguarding constitutional guarantees. Thus, we might talk generally about when it is appropriate to take that attitude toward constitutional rights (cf. the ACLU on porn as free speech; NARAL on the right created by the Court's abortion decisions, etc.), recognizing that one potential answer is "always"; and

(d) the Supreme Court's decision in WLF v. LFW might issue this week, adding spice to our discussion. I learned from this very interesting Web site about appellate litigation that the Court is scheduled to release new opinions tomorrow and Wednesday. Oral argument in WLF was back on December 9. [FN*]

Thus, let's run with IOLTA.

[FN*] Even if we have to wait longer for the decision in WLF, I suspect that we will get to read at least one major set of opinions this week. Surely the Court is due to decide Ewing v. California and its habeas companion Lockyer v. Andrade, the big Eighth Amendment cases challenging the application of California's "Three Strikes" law. They have now been pending for three and a half months. Readers of this blog will recall that I predicted the Court will uphold both defendants' recidivist sentences, and that Justice Kennedy will write for the Court in at least one case. D. predicted that Ewing, the non-habeas defendant, will narrowly succeed in getting his sentence of 25-years-to-life for stealing three golf clubs struck down as cruel and unusual punishment.

PLAINSMAN: That article is well-reasoned and pretty convincing. I myself always pictured an actual cowl of black wings, possibly vestigial. Wings that were, at any rate, as actual as anything else about the Balrog's visible shape.

The Moria Balrog was one of the great visual triumphs of the first Peter Jackson movie. But I can only shake my head sadly at these fans who are clamoring for a (pauses, swallows) Balrog action figure. Yeesh. The notion of buying what is basically an action figure of a d... (well, you know) is disturbing.

But enough.

D: I mostly hate myself for this, but here is another article on the Balrog-wing problem that I can't help but link to.

There. It is out of my system.
A New Topic: In an extension of a two week old tradition, I will give you three options. You choose that which: (1) appeals to you; and (2) you think will be most likely to sustain us for a week without boredom. Your options are:

(1) IOLTA and the Takings Clause; (discussion of Washington Legal Foundation v. Legal Foundation of Washington);

(2) How to improve life as a first year associate; (discussion of the Clifford Chance memo);

(3) Habeas and Qualified Immunity for Judges (or, "more of P praising Justice Thomas");

and, extra bonus option,

(4) The constitutionality of unpublished appellate decisions (with some commentary on "unpublished" district court opinions)

D: I understand that it is my turn to propose a topic. I am tempted, I really am, to discuss Tolkien's relationship to the law, specifically: (1) Tolkien's obsession with racial classifications and its possible relationship to affirmative action here in real life; (2) Tolkien's evident distaste for modernity (well, specifically technology) and its relationship to IP law; and (3) the lack, in any of the books, of a lawyer character with whom we could really identify, even though in The Hobbit there is a discusion of lawsuits following Bilbo's return from adventuring, and there are certainly discussions throughout of instruments like Deeds, which require lawyers to be effective.




Whew, I almost geeked out on you for a moment.
PLAINSMAN: You're just lucky you're largely innocent of Japanese SF animation, my friend, or our sober discourse here would be subject to more perilous temptations to geekiness than it now is. Not even a book recommendation, eh? Well, I respect your determination to stay on the wagon.
D: I actually took Biology of Fishes in college. The problem with your analogy:no lab work in corps. One of the most rewarding experiences in my college career was to go to the bio lab and take a look at a preserved Coelacanth. What a cool fish! Additionally, you haven't lived until you have taken a lab exam that requires you to differentiate between fish scales.

Now, to the extent that you are arguing that corporations is like a course in Lamerickian classification, I guess I agree, and it is a cute point. Nothing is more satisfying than putting legal concepts in pigeonholes. I'd argue that the essence of being a good litigator is the ability to take a bunch of cases and organize them into categories that you've made up. Whether my B in Bio of Fishes therefore means that I don't have the chops to be a good litigator is an open question.
D: I read recently that every online discussion has a "Hitler moment": the moment when you compare another person's arguments to those leading to Nazi-era policies. This, supposedly, represents the end of rational thought and signals a good time to go watch some alluring WB drama to relax. It is when a good discussion jumps the shark.

Equally to be feared is the Tolkien/Herbert/Wheel of Time comment, which I have experienced off- and on-line. It looks like this. You are engaging in a serious discussion at some party, or you are even engaging in some flirting with a woman. Then, out of the corner of your ear, you hear someone say something like "Chapterhouse Dune was an excellent book, but the end was too trippy for me". You immediately drop the serious topic and/or woman, and gravitate toward the geeky conversation, responding: "Do you also think that the unknown enemy at the end of Dune is none other than artificially intelligent machines?" A highly technical discussion ensues.

I hope we haven't reached that point, which is why I'm not going to respond to your Silmarillion point on its merits. Of course the Silmarillion is absorbing. So, I hear, is crack cocaine. But we've got to resist the tendency to throw law overboard in favor of a discussion over whether Balrogs have wings. [Note: if you do find an answer in Book 10, email me in a non-public fora] I just worry that if we pursue this topic here, we are likely to be left in a corner, talking alone, in the absence of women. This is to be avoided.

Jacob Levy over at the Conspiracy has post today on a sort of similar topic.

Sunday, February 23, 2003

PLAINSMAN: By the way, digressing briefly from current topics, I'm currently reading a friend's old copy of the Silmarillion. It is very absorbing. It reminds me that I prefer my fiction expositional, not novelistic; theological, not psychological; that I have a weakness, indeed, for fiction that takes on the forms of nonfiction (of which the myth form is an example), from the "critical" footnotes to Nabokov's Pale Fire to the linguistic appendix to Orwell's 1984.

The Silmarillion has sufficiently sharpened my interest that I've decided to dip into the really hard stuff: I went to Amazon and ordered Vol. 10 of the History of Middle-Earth, Morgoth's Ring.

Do you have any advice about other books to look for? How far did you get in Tolkieniana?

Experiencing the power of dull classes

PLAINSMAN: Indeed you can find interesting problems almost anywhere. Me, I've got four volumes of Corbin on Contracts perched over my head, next to a volume of Newberg on Class Actions; my old Securities Regulation casebook from law school; two volumes of Wright & Miller's Federal Practice; and softbound volumes of my federal circuit and state court rules.

IRS Practice and Procedure, though. Hardcore.

I'm going to let go the topic of Justice Thomas's jurisprudence ("clucky" was funny) and turn to dull law school courses one should take. I note parenthetically that while I heard lots of conventional wisdom before and during law school to the effect that "it doesn't matter what subjects you take, you'll forget it all and re-learn it in practice anyway," I have not found this to be true so far. In bar preparation, in clerking, and in my job as an associate, previous coursework has been relevant. True, you can certainly learn new subjects when you have to. But I have been glad to have some pre-existing literacy in federal courts, corporations, accounting, federal civil procedure, and the securities laws.

For anyone who plans to spend some time in private practice, business law courses are valuable. You will also find yourself getting more out of the Wall Street Journal than you previously did.

As a side benefit, many of these courses are actually interesting. Corporations in particular is fascinating if well taught. I often liken it to a course in organismic biology; say, "Introduction to Fishes." Consider: you spend a semester learning about this strange family of creatures (the various business associations, such as partnerships, business corporations, LLCs, LLPs, etc.). In successive weeks, you explore their internal structures (bylaws and corporation statutes); their habitat (everywhere); how they are born (the process of incorporation), grow (issuing stock), react to stimuli (the functioning of the board of directors), metabolize (issuing dividends), interact and reproduce (spinoffs and mergers) and die (dissolution).

D It reveals nothing about us for me to list the contents of my bookshelf at the moment: Saltzman's IRS Practice and Procedure; Accounting for Lawyers (nutshell); Collier on Bankruptcy; a book on Insurance Regulation; and [my state's] Practice Commentary. If I had been told this would be my bookshelf before starting this job, I would have run away screaming. But, as always in the law, you can find interesting problems in the most unexpected places.
D: I knew that even a tangential attack on J.Thomas would get you all clucky. There are several responsive points that must be made before we move on.

First: It wastes time to address the actual source material at issue. Whether Thomas is "inimicus libertatis" or not will depend on your politics. Personally, I think its a silly exageration. Thomas, I am certain, does not see himself this way. (Although who would?) Moreover, I am sure that Thomas believes that his judicial philosophy, all other things being equal, creates more liberty when applied. (Although who wouldn't?) To the extent that it makes people happy to call other people latin names, more power to them. I often say inter arma silent legis est when whistled at by a policeman for jaywalking, which helps my mood.

But really, wake up and smell the small-government activism in your hero! Have you read Thomas's dissent in U.S. Term Limits v. Thorton? He makes the following relatively benign statement there: "When the people of Georgia pick their representatives in Congress, they are acting as the people of Georgia, not as the corporate agents for the undifferentiated people of the Nation as a whole" But, when considered in context, I think the only fair way to read this dissent is as a rejection of the idea of the primacy of the federal government, and the idea that our Congressional representatives serve the nation, not the states. For Thomas, the 14th Amendment, whatever beneficial effects it may have for him personally, is just a bad political idea, which he would like to go. Because the 14th Amendment exerts enormous pressure on the States to give up their powers to the national government; for Thomas, a powerful central government is anathema.

Habeas Corpus Well, you say principled disagreement, and I say "willingness to discard any and all precedent in order to gut the Great Writ". Your willingness to defer to AEDPA demonstrates, I think, that you have not had the benefit of a district court clerkship, where, following record review, you are convinced of a habeas petitioner's probable innocence, but, when considering their pro se status and their inability to pass the AEDPA bar, you are forced to recommend denial of the writ because the state court is entitled to, in effect, qualified immunity. Up there on the appellate level, with the exception of death cases, most decisions I see do no grappling with the records, so can't have felt this in your gut in the same way.

Citations to Authority It is kind of cheap to cite to Friendly and Harlan. They are dead, which makes them harder to critcize with any vitriol. And all I know about Friendly was his pathological hatred of civil juries.

On judicial philosophy It is unclear if by "[t]he man thinks the Constitution and statutes mean certain things, and not others." you are suggesting that Thomas occasionally does things he would not also vote for as a private citizen in a referendum. I find this kind of dissonance hard to believe. I'm with Prof. Balkin: "Conservative jurists on the Supreme Court offer arguments for limited federal power for largely symbolic and ideological reasons that are connected to the goals of the conservative social movements of the 1970's and 1980's. That is why those judges and Justices were put on the federal bench in the first place. Arguments for limited federal power allowed the conservative justices to strike down or limit the reach of federal laws-- particularly federal civil rights laws-- that they and other conservatives don’t particularly like. The argument for limited federal power also allowed the conservative Justices to strike a symbolic blow for state’s rights." That is, given a situtation like Eldred v. Ashcroft, where arguments for limited federal power do not support Republican ideological causes, Thomas joins the majority in giving such arguments the back of his hand.

Law School Reforms I am almost tapped out. Some courses I wish I had taken: Federal Securities Regulation; Accounting, Bankruptcy; Ad Law. The reason I did not take these courses: Con Law was more interesting. So, perhaps a good idea would be to have two week courses in these kind of subjects (althogh not AdLaw, which requires something more). That is, a course on "Boring, But Very Important, Laws and Skills" would be helpful.

The "Nine" v. the "Nine Justices" When you quoted me, you added "Justices" to the "Nine", a move I suspect was born of your great respect for the Court. But my use of the "Nine" was intentional; I think it important to remember that these are just nine ordinary people with a great deal of power, but no more greater claim to integrity or correctness than you or me.

Justice Thomas goes his own way; Habeas corpus history

PLAINSMAN: Sign me up for the Justice Thomas meme. Since our original discussion on the topic, I've stumbled across a few additional exhibits. Here's a couple of business cases (one of which I have alluded to in a previous post) to add to the cases previously listed by Stuart Buck and me.

Allied-Bruce Terminix Cos. v. Dobson (1995) (Thomas dissenting): The case was about the proper interpretation of Section 2 of the Federal Arbitration Act (FAA), a very important statute. The FAA provides that parties who sign contracts agreeing to submit their legal disputes to a private arbitrator, rather than resolving them in court, will normally be held to those contracts, regardless of the nature of the underlying dispute. The Supreme Court ruled in Allied-Bruce that the FAA was intended to pre-empt state substantive law and required enforcement of arbitration agreements in all courts, federal or state. By contrast, Justice Thomas would have held that the FAA's sweep did not extend into state court, so that individual states could prohibit the enforcement of arbitration contracts with respect to certain disputes. Many contract scholars question the fairness of enforcing agreements to arbitrate tort, fraud, or discrimination claims, and there are a number of feisty populist States out there like Alabama (where Allied-Bruce arose), Kansas, and others, which have state laws prohibiting the enforcement of predispute agreements to arbitrate, e.g., tort claims. Thomas would have held that the statute let those state laws survive. It's a federalism case ('interpret ambiguous statutes against encroaching on state policy'), but it is also an example of how federalism can serve the little guy.

And I've earlier mentioned Gustafson v. Alloyd Corp.. (1995) (Thomas dissenting, with Scalia, Ginsburg and Breyer), another important statutory interpretation case. Thomas would have held that the plain language of then-Section 12(2) of the Securities Act of 1933 permits any purchaser of securities to rescind the sale if the seller uses misleading written information in connection with offering the security. I won't try to summarize the opinion, but there is general agreement among business law professors that the majority's narrow reading of 12(2) was unpersuasive and that Justice Thomas had the better of the argument. This is the best part of his opinion:

"The majority's analysis of Section 12(2) is motivated by its policy preferences. Underlying its reasoning is the assumption that Congress could never have intended to impose liability on sellers engaged in secondary transactions. Adopting a chiding tone, the majority states that '[w]e are reluctant to conclude that Section 12(2) creates vast additional liabilities that are entirely independent of the new substantive obligations that the Act enumerates.' Ante, at 9. Yet, this is exactly what Congress did in Section 17(a) of the 1933 Act as well as in Section 10(b) of the 1934 Act. Later, the majority says: '[i]t is not plausible to infer that Congress created this extensive liability for every casual communication between buyer and seller in the secondary market.' Ante, at 16. It is not the usual practice of this Court to require Congress to explain why it has chosen to pursue a certain policy. Our job simply is to apply the policy, not to question it."

Nice. Obviously, expanding liability under the securities laws is not a big favorite of the political right. For more, I refer the reader to Stuart's post that D. linked, and to my earlier posts below.

At a certain point, I suggest, the force of all these examples has to be acknowledged. And we haven't even gotten into the many opinions that set out Thomas's expansive jurisprudence of the First Amendment -- most of whose provisions were, at one time anyway, considered rather important by the academic left.

Ultimately, if Stuart's tone in his post was brusque, it was justified by the tone of the UGA law professor's letter (which stated, for example, that Justice Thomas is "inimicus libertatis, the enemy of liberty"), and by inaccuracies therein. Thomas's discussion of Brown v. Board of Educ. and his opinion in Indianapolis v. Edmond, the Fourth Amendment roadblock case, obviously meant the opposite of what Professor Wilkes's letter implied they did.

Moreover, if you look at the list of supposedly unconscionable criminal procedure holdings that Prof. Wilkes provides, it becomes clear that a lot of them are habeas cases. Thomas takes a quite different view of criminal defendants whose cases come before the Court on direct appeal, as demonstrated by his opinions in Apprendi, Hubbell, Kyllo, Bajakajian, and other cases, many of which are, commendably, cited by Professor Wilkes.

This is a matter of principled disagreement, not of "reactionary judicial activis[m] ... pretending to be a neutral and impartial judge," as Professor Wilkes impartially puts it. At the end of the day, Justices Scalia and Thomas and Chief Justice Rehnquist are not convinced that federal habeas corpus relitigation of the merits of constitutional claims is proper. They incline to the view that as long as a state can demonstrate that it gave a petitioner a "full and fair" hearing on his claims in state court, the federal courts should not step in and disturb the conviction on the ground that they don't like how the state court's legal analysis came out.

I do not, in fact, share this position. I accept federal habeas relitigation, though I also think that the Congress struck a desirable federal-state balance in 1996 by enacting the AEDPA statute, which requires federal habeas courts to show some deference to state court rulings. But the Thomas position is not "extreme" nor, to move from epithet to analysis, is it a violation of textualism or originalism. It is not at all clear that federal habeas relitigation was permissible prior to the Supreme Court's splintered 1953 decision in Brown v. Allen. Eminent academics like Harvard's Paul Bator argued for years that Allen was wrong, and that all that was required was to ensure a "full and fair" hearing in state court. Eminent judges like Henry Friendly and the second Justice John Harlan also expressed doubts about the relitigation model of habeas. Were Bator and Friendly also "right-wing extremist[s]," engaged in "a new, aggressive, and repressive judicial activism"? I look forward to hearing Professor Wilkes's views about these disreputable fringe thinkers.

Indeed, far from being an obscure doctrine relegated to the past, the Bator-Friendly-Thomas view of the writ is partly reflected in the law today. In Stone v. Powell (1976), the Supreme Court held that claims of Fourth Amendment violations were not reviewable on habeas as long as the petitioner got a "full and fair" hearing on them in state court. The Court's decision explicitly cites the concerns I've listed.

For more analysis, see generally Justice Thomas's opinion announcing the judgment in Wright v. West(1992). The issue is subject to reasonable (and respectful) debate; therefore, see also Justice O'Connor's concurrence in Wright, which takes issue with Thomas's view of pre-1953 habeas law. Professor Eric Freedman of Hofstra Law School has also offered a significant revisionist history of pre-1953 habeas corpus, which was originally presented in a three-part series of articles in the Alabama Law Review in 2000. These articles were later gathered into a book, Habeas Corpus: Rethinking the Great Writ of Liberty (NYU, 2001).

The point is that there is a genuine doctrinal and historical dispute going on, well within the mainstream of American legal thought, and that Professor Wilkes's wrathful gesturing at Justice Thomas's habeas holdings does not shed light on it.

The informed reader of Professor Wilkes's letter is left in the odd position of being told that Thomas "embodies the right-wing extremist agenda" ... except for Ring v. Arizona; Kyllo v. U.S.; Apprendi v. N.J.; Harris v. U.S.; U.S. v. Hubbell; U.S. v. Bajakajian; Indianapolis v. Edmond; Carmell v. Texas; Gustafson v. Alloyd; Allied-Bruce v. Terminix; Florida v. J.L; Knowles v. Iowa; Wilson v. Arkansas; his Free Speech Clause opinions; etc. It is explained by Prof. Wilkes that "[t]hese surprising cases are ... merely the exceptions which prove the rule." Glad to clear that up.

Turning to your closing remark, the reason I think it's important to consider these opinons of Justice Thomas is not so much to establish whether or not "the Nine [Justices] remain persuadable by rhetoric"; I suspect most oral argument at the Supreme Court, for example, makes little difference to outcome. But their decisions do respond to external and internal "logic"; and one way to recognize such logic is by tracing a Justice's judicial philosophy, and showing that his philosophy is simply not reducible to the goal of serving a particular political constituency. The man thinks the Constitution and statutes mean certain things, and not others. Professor Wilkes needs to find a way to register his disagreement with those conclusions with less vituperation.

Good on his students for inviting Justice Thomas to deliver their graduation address. If his past practice is any guide it should be a ringing, memorable speech.

Believe it or not, I actually have more ramblings about habeas corpus on my mind, but it's getting late. I'll save them for another post. Also, let's not drop the topic of law school reforms yet; I hope we can say a bit more about it tomorrow. Will you then think up a new topic for us?

Saturday, February 22, 2003

D: Howard reminds his readers that Sarah Weddington was 26 when she argued, and won, Roe. I feel very, very inadequate.
D: Stuart Buck has written a recent post on Justice Thomas that I am sure you will find interesting. He talks about Thomas's adoption of certain liberal positions, and criticizes the liberal Justices for refusing to follow their convictions by adopting conservative positions when required by their jurisprudential philosophies. This, of course, reminds me of our discussion of a few weeks back. Buck's comments are, I should note, uncivil (to say the least). There are ways to disagree with others that do not involve calling their work "shockingly dishonest, small-minded, and intolerant". As you will note, Buck cherry-picks a few of Justice Thomas's "liberal" results. I've already mentioned in this blog that I see such opinions as mirages.

The enduring popularity of the "Thomas-can-be-liberal" meme just shows that law students, lawyers and law professors are desperate to believe that the Nine remain persuadable by rhetoric and logic.

Thursday, February 20, 2003

PLAINSMAN: Those two law schools have entering classes of very different sizes, which could contribute to a difference in admission rates. There are just far fewer spots at Yale. So another relevant measure would be yield, the percentage of admittees to a given school who decide to attend. I think Yale's yield is significantly higher than Harvard's too, which supports your thesis. On the other hand, I think Stanford, which is another "kinder, gentler" school, has a lower yield than Harvard does. Columbia and the U. of Chicago, which are "tough" schools, have a somewhat lower yield again.

D: Empirical Notes I've been thinking about this argument on breaks this afternoon, and, I have to say, I'm on to something here. One can test the proposition that making law schools less unpleasant - more commodified and entertaining - will increase law school attendance. Look at admission rates for schools that are supposed to be pleasant experiences as compared to schools that are supposed to be to ... more unpleasant. There is no good reason for Yale to have a significantly lower admission rate than Harvard, except that it is said to be pleasant to study there.

One could argue (I'm not) that if your educational reforms were put into practice nationwide, there would be a surge in enrollment in law schools like that which followed LA Law.

Now the good and hard question is: are we far enough away from the tipping point of lawyers:laity ratio that we don't have to work about a M.D.S., or is the threat clear and present such that any speech such as yours must be squelched. This book may be taken to suggest that we are too close to a M.D.S. to permit any attempts to make law school more pleasant. Indeed, perhaps GWB should drop his idea for federally intrusive tort reform, and instead give federal grants to law schools if they increase class sizes and have mandatory classes in the morning. What do you think?
PLAINSMAN: My understanding of Wachtell comes mostly from law school conventional wisdom. I gather that associates there do both the grunt work and the big-think stuff. On the same deadline. Which is kind of like having two full-time jobs, or being two associates in one, and indeed, this seems to be the underlying premise that motivates both associate compensation and hours requirements at that unusual firm. Conventional wisdom also has it that there's less cutting and pasting of form contracts at WLRK, because the firm picks and chooses its work with an eye to sui generis corporate transactions.

Our e-mail reveals that we have some readers at Wall Street firms. I wonder if there are any at Wachtell who could give us the straight dope? Probably a non-corporate person -- the practitioner audience for law blogs seems to be mainly litigators.

Our conversation this week about law school reform has made me nostalgic for academe. If I could swing the travel and time away, and didn't have a full plate of work to finish tomorrow, I'd love to go to this conference at Notre Dame. (link via Howard Bashman). Good topic, impressive lineup.

D: Are you suggesting we privilege the happiness of a few score thousand law students over the horrifying likelihood of the last, few, members of the bar cannibalizing each other following a mathusian death spiral? And to think that you are a member of the Guild. Did your state fail to introduce you to this scenario in the interview portion of the bar application process?

Would happy law students undermine democracy? Well, its a thought, and a connection I admit I hadn't made. But I don't think I can rest my arguments on that likelihood. Because no matter how miserable we design law school to be, there still will be N+1 episodes of Law & Order on daily, with N set by the federal deficit. One or two "substantive law lecture[s]" thrown in there, even if given by Carl Sagan's lawyerly incarnation, aren't going to make a dent in the tide. I have some thoughts on who that incarnation of Sagan ought to be, but in deference to our anonymity, I won't list them here.

Was it your thought that Wachtell associates get "heavy thinking stuff" earlier? Who does the grunt work then? I agree that being a tax partner sounds like a fantastic job, especially if your practice involves lots and lots of money. But one has to be wary not to get horribly greedy, which is probably tough when your professional life consists of telling people how to come very, very close to the edge of the law.
PLAINSMAN: Your image of an overlawyered society's lawyers eventually falling upon one another in a Malthusian death spiral is a compelling one (not to mention a good name for a band). Maybe that's what happened to the Mayans. Big firms today already do a fair amount of litigation work representing other big firms; it's one of the 1,003 reasons that a major firm has to have a sophisticated Conflicts department.

Despite the danger that we will all eat one other, I am uncomfortable with encouraging the "adversative" features of law school unless it is for the purpose of making better lawyers. To make things rough simply in order to thin our ranks contradicts the view I take of American democracy. I mean, yes, it's bad that so many U.S. college kids flock to law school (I'd do it again in a second, though). And we don't need more practicing lawyers, exactly. But under most versions of democratic theory, we would like all citizens to know something about the law. My man Tocqueville sure thought so.

Or do you disagree? We've been down this road before; are we touching again on the "too much transparency is fatal to the law" position you took last month, when we were talking about the implications of Howard Bashman?

Certainly, having everyone take out a $100,000 loan to spend three years bluebooking is not the most efficient means to republican ends; good high school and college civics classes are the better answer. And Court TV should broadcast the occasional substantive law lecture, to break up all the sensationalistic murder crap. Or PBS could. Law is pretty abstract, but then so are modern physics and cosmology, and Carl Sagan still managed to make those subjects fascinating for millions. You can't tell me a well-made, even-handed PBS program on the history and contours of, say, the Fourth Amendment wouldn't get viewers. (Kyllo v. U.S.: a dramatic reconstruction.)

Sorry, I'm digressing.

Transactional work. I actually did some corporate/securities projects when I was a summer associate. They weren't bad. By the end of the summer, though, I knew litigation was for me. I concluded that my skill set was not a good match for transactional work, and that my comparative advantage, such as it is, lies in sitting at a desk with a big stack of books and busting out the argument and rhetoric.

However, I can see "what might make [transactional] work rewarding over the long term." My impression is that in most big firms, the first few years of being a transactional associate are really just about whether you are a together person: organized, detail-oriented, efficient, punctilious, affable, etc. Litigators need to have some of these traits, but they are more psychologically central to the corporate type. And then there is a fairly slow development curve before you get to the heavy thinking stuff, assuming that's what you're after. (Exception for Wachtell and a few other uber-corporate shops.) That happens much sooner in litigation. I've been at my job six months and I'm already writing (under supervision) substantial briefs. I think I'd get bored as a corporate associate.

Nevertheless, from what I've seen, being a transactional partner at a major firm can be cool. The ones I admire are the experts, the people who get book not because they are glad-handers, but because they have a rep as exquisite technicians. Consider: when you're a partner, you have a team of minions to fill out all the boring forms in triplicate for you; what you get to do is sit in your corner office and field complex inquiries from the client, devising clever structures through which vast streams of money will one day pour. It's like being an architect or civil engineer. I gather that tax practice offers an even more abstract and deep-think version of this professional role than corporate does. Ronald Dworkin started off as an international tax lawyer at Sullivan & Cromwell.

Wednesday, February 19, 2003

D: Re: Estrada, I think you are cutting the salami too thin.

Re: Guild Protectionism: Do note that not all my arguments for refusing to bow to consumerist trends in education served our guild. Some arguments were designed to keep us from a malthusian death spiral, where oogles of happy lawyers feed off of a diminishing number of laity, until we are left, looking hungrily, at the firm down the street for clients. [Malthus' story implies that the bad bit is the crash in lawyer population that would follow, but I admit that some might see it as our grazing the laity].

Re: "Don't Be A Prick Norms" What would Eric Posner say about the best way to further the "don't be a prick" norm by law school administrators? Is the best way to encourage niceness through rewards or punishments? To the extent it is rewards, are you suggesting that a law school give out something like the "class spirit" award, and back it up with money?

Re: The Idiocy of Issue Spotters:I agree with you completely about issue spotters and take-home exams.

Re: Transactional Clinics: My sense is that transactional lawyers have real difficulty in finding meaningful pro bono work, and I bet that finding such work for law students would be even harder. There are a few transactional legal clinics like Brooklyn's. But is creating lots of transactional work for law students really going to make anyone happy? Part of my prejudice here arises from a total inability to engage in transactional practice, and a lack of understanding about what might make such work rewarding over the long term. It seems to me that giving law students the opportunity to cut-and-paste form contracts is likely to drive them away in hordes. So, in answer to your question, I have shut my mind firmly to understanding what "papering a deal" involves, and would have been extremely resentful of any attempt to educate me forcibly.
D: From what I've heard, the law teaching market, especially at top-ranked schools, is beginning to look more like the traditional academic system you describe, with Ph.D.'s representing a large share of new hires. This trend is terrible, not only because it further divorces legal education from legal practice (who, after all, is going to get a Ph.D, a J.D., and then practice for a few years before joining a faculty), but also because I don't have a Ph.D. So, if one of your suggestions for improving law school life would involve increasing the number of Ph.Ds in circulation among law faculties, I say I'm having none of that.

I guess it is true that law teaching is the most stylized and artifical (the candidates being straight lecture, discussion groups, and some mix thereof). Of course, so few law professors actually do socratic teaching, in my experience, that no one is judged by their failure to do it well, or at all. Rather, most do a version of panel-participation/ask-a-few questions pseudo-socratic inquiry; this is especially true outside the First Year classes. And, as we know, new assistant profs are only rarely permitted to experiment on 1-Ls.

But you are right: law school at its best is a good socratic professor leading a challenging socratic discussion. It is law school's core competency, and if more professors could do it, law school itself would be more likely to be rewarding to more students.
PLAINSMAN: Also, I agree, there should be more courses designed to teach aspirant law profs how to teach. I think there are a few out there, but that they're more theory than practice. I believe Judge Posner once opined that U. Chicago should create a year-long, multi-credit practical course for law students with a teaching jones, in order to introduce them to methods of academic research. Don't know if it ever came to pass.

Plausible "clinical" arrangements can be imagined. In a large city with multiple law schools, you might get a "placement" at another school. A prof teaching a substantive class might hand off to you, Mr./Ms. Visiting 3L, to teach the last half of the scheduled class on promissory estoppel. This sort of thing already goes on informally at a lot of places. A prof will bring in a particularly promising recent grad who's clerking in the area, or working at a firm, to teach part of a 1L class. Maybe the pratice could be institutionalized.

Of course, the reason there's a problem in the first place is the odd structure of legal academe. It doesn't have the tripartite hierarchy of life in the Ph.D. realm: profs, grad students, undergrads. With no disrespect to the LL.M.'s and J.S.D. / S.J.D.'s out there, law schools bascially have two levels, profs and students. You can get a teaching job with just a J.D. (pauses for cheers), so the 3Ls who make up much of the pool of plausible near-term teaching candidates are at the same level of the hierarchy as the 1Ls whose introductory classes they might otherwise cut their teeth on, if we were in Ph.D. land. Awkward.

And it's even more awkward when you reflect that of all the avenues of university teaching, traditional law teaching involves the most stylized and artificial teaching method, one that seems much more expertise-intensive than, say, lecturing on Milton for English 101. The Socratic method can be very effective, but what a bugbear that first Socratic class must be for the brand new assistant professor of law!
PLAINSMAN: Re: Estrada, fair enough. I will just say that my comment was accurate: Abe Fortas was a Supreme Court nominee, not a circuit court nominee.

Re: your forthright "guild protection" arguments against law school reform: Hmm. I agree with you that law school ought to be a somewhat tough environment. Softball, beer, beaches, groovy mellowness, etc., are all fine in moderation (especially if the beer is good), but law schools' propaganda tends to make too much of this. Law school should give people a sense of what to expect when they enter the profession. Therefore, it ought to impose lots of reading, force people to process abstract texts under deadlines, and require twentysomethings who don't yet have minimal time management skills to acquire them.

So I am in favor of long reading assignments, brisk Socratic questioning, and numerical or letter grades. But I would not say we should want law school to be "unpleasant." One would like to see furtherance of "don't be a prick" social norms among law students. It's easier to say that than to figure out how to foster them, though.

Re: my own thoughts on law school reform -- Short, issue-spotter law school exams are ludicrous. The only skill they promote is raw, physical stress management. While legal analysis in real life is often carried out under time constraints, it is not normally conducted at the insane, field-triage-orderly-on-crystal-meth level of panic that a two-hour, four-question law school exam imposes, unless I'm missing something big about practice thus far. What's challenging about practice (from my still neophyte perspective) is having to work steadily at a crisp, though non-pharmaceutical pace over long periods of time.

Therefore, take-home exams, or in-class exams that you have a full day to write, are much more appropriate evaluations. A lawyer in the real world may indeed have to create important written product under that sort of time pressure.

Let's see... I also feel an urge to slap my desk and say something platitudinous about clinical education. Actually, at the "major" law schools there has been a strong push along these lines in recent years. Most schools now have good clinical programs, especially for aspiring litigators. If there is a problem it's the lazy, bookish introverts in the student body who don't sign up for clinicals. Like me. I did nothing in three years that involved an actual client. Closest I got was a hands-on course in basic (mock) trial advocacy. I disliked that course but found it valuable; eat your Brussels sprouts.

What would be useful, if possible, is greater opportunity for clinical education in the transactional work that most attorneys actually do. I've often heard lawyers at firms draw a contrast between the relatively sophisticated tasks that first-year litigators can perform, whereas equally bright first-year transactional associates essentially have to be taught to crawl, despite three years of law school.

Hence, more will- and contract-drafting classes. More internships. More '33 Securities Act pro bono clinics, offering registration assistance to low-income equity issuers. :)

Do you sometimes wish you'd had a structured educational experience that helped you understand what "papering a deal" involves? Or have you figured that world out to your own satisfaction via osmosis?

Also, you have a family friend who teaches law. Do you know his views on our topic?

D: You earlier commented on the "unprecedented fillibuster" regarding the Estrada nomination. I thought we had vowed not to talk about the merits of judicial nominations. There were good reasons for this: (1) nothing new to say; (2) little room for agreement on issues of importance; (3) discussion encourages trend to treat the courts as political institutions; (4) discussion encourages treatment of politics as a zero-sum, process game; (5) issues of ethics.

I don't want to relax this prohibition, but I must protest that this fillibuster is most definetely NOT "unprecedented": Associate Justice Abe Fortas was fillibustered when nominated to be Chief Justice. He had refused to answer the Senate's questions in sufficient detail.

But having said that, I'll rest on our earlier prohibition on judicial nomination discussion.
D: Good topic on law school. At some point when I was studying for our first year exams, I conceived of the idea that the entire exam system was designed not by law professors but by psychologists, trying to study how individuals performed under stress. My belief in this cliche was so powerful that I vividly recall, one night, looking through the law library for people with charts and graphs taking notes. Later, after recovering, I shared this experience with friends, and found it a not uncommon reaction. The question is: how do you begin to fix a system that produces paranoia, heartache, and desperate unhappiness in so many.

I am with you about lighting and Powerpoint slides. To be honest, I hate slide presentations. Give me some good Socratic dialogue, and I'm has happy as a chipmunk in spring. The problem is that few professors are good socratic teachers. But this isn't a problem we can solve (although a course in how to teach would be useful, and it is shocking that there isn't one for incoming profs). Forcing people to associate in extracurriculars would be helpful in defeating isolation. Also, law schools should ease student publishing through funds and/or logistical support. I also would have liked more feedback in exams. Ah, blah blah blah. Humph: here we are not a paragraph into the topic and already I sound like a vacuous consultant.

So, I'll take a more controversial position. Now that I'm finished with law school, I find myself more sympathetic to a position I heard expressed by lawyers while I was there: making law students unhappy isn't the worse thing in the world. There are good reasons to make law school relatively ... unpleasant.

First, it reminds students that this is a profession full of unhappy people, and weeds out the least committed. This is good for reasons unrelated to guild maintenance: truly unhappy lawyers are bad for clients.

Second, it keeps the number of lawyers down in absolute terms. This is good for guild maintenence, of course. Plus, if law school was like, say, college life at University of Miami, then the lawyer-citizen Malthusian equation would really be screwed up.

Third, law school, by dint of sheer unpleasantness, burnishes the college experience and preserves it - like a nice jar of formaldehyde. I liked my college a great deal after entering law school, didn't you?

Finally, unhappy law students means that alumni funds are distributed (to a greater extent) to preserve graduates' degrees, which tends to produce more clear-sighted giving, tied to the profession, meaning that law schools are unable to go off as half-cocked as they would like.

So, I say, no reforms. Let them suffer!
D Yeah, well, on textualists, I simply disagree that textualist judges are any more "constrained [against opportunism" than their (less) textualist fellows. Rather, they have a different rhetorical trick in their bag in getting there. This ties back to our earlie(st) discussion: finding times when textualist judges reach results that run counter to their political philosophies . This is going to be hard, especially since the status-quo originalism thesis equates original understanding with a small, limited government. When a Judge's theory means that every hard case comes out the way her politics want it to, then the theory isn't courageous, confining, or constrained; it is convenient.

I read the Nordyke case as well. And I agree with you about the concurrence being unpersuasive, but monstly because I thought that sniping at Judge Reinhardt was wrong and wrongheaded. But, as you know, even small courts like the Second and Third circuits have a hard time giving respect to the "law of the circuit," as we have discussed earlier in this blog. One might blame this on the Reagan Administration's politicizing of the federal bench, which let a bunch of ideologues with little respect for precedent or the norms of collegiality into power. But that kind of comment would be just the kind of ad hominem attack that will bring on the apocolypse in our lifetime.

Nuances of textualism; the Ninth Circuit's Second Amendment opinion

PLAINSMAN: I commented below, in a post I've now slightly reworded, that Republicans have been better about putting textualist judges on the bench. I do think this; I know Alden v. Maine et al. is an exception, and a troubling one, but it does not undo the overall conclusion I draw from the current scene.

Having said that, I want to be clear about what I mean. When I say that some judges are non-textualist, I don't mean that they routinely free-associate the cases that come before them, or that they don't take their jobs seriously. Especially on the lower federal courts, judges of all stripes usually tether their decisions to standard legal authorities and modes of reasoning, and they often reason from the structure and language of the texts they're being asked to apply, in clause-bound fashion.

Rather, "textualist" ("originalist," etc.) is a description of how a judge is likely to approach the hard cases. The premise is that a proper understanding of the role of life-tenured judges in a democracy entails certain canons of judicial restraint, which are supposed to constrain opportunism. Such canons can often be made explicit, resulting in constitutional theory. One is the requirement to seek and enforce a text's original meaning. Now, since self-control is the only thing that deters federal judges from opportunism, and self-control is no fun, it is a good sign if we learn that someone has reflected explicitly on the principles of judicial restraint. The stakes and temptations in judging are so high that we should want people who have both good temperaments and correct theory.

Moreover, there are places in the law where a generalized instinct of "restraint" isn't enough; instances of past judicial opportunism get grafted onto the law, and the textualist judge (if she is on a court of last resort, or when her court sits en banc) will eventually have to choose between following stare decisis or following original meaning. Not all overrulings are activism. Theory becomes important there, too.

But it is a spectrum: most judges are textualists to some degree.

I thought about this when I read Nordyke v. King, yesterday's interesting Ninth Circuit opinion discussing (in dictum) the meaning of the Second Amendment. Threads of textual argument weave in and out of the concurring opinion of Judge Gould, a Clinton appointee, who criticized (again, in dictum) the Ninth Circuit's previous decisions that have adopted a "state rights" interpretation of that engimatic Amendment. Judge Gould shifts back and forth between close reading and historical analysis, on one hand, and broad statements about constitutional values on the other. Some parts of the concurrence seem persuasive, others less so. As I said, there's a spectrum of approaches. (He also has a very interesting discussion of whether, assuming the 2nd Amendment creates an individual right, the 14th Amendment incorporates that right against the states.)

Judge O'Scannlain's majority opinion in Nordyke, like Judge Gould's opinion, inclined to the "individual rights" view of the Second Amendment. But both judges conceded that their circuit's prior contrary precedent controlled the resolution of the case. Judges O'Scannlain and Gould also went out of their way to knock Judge Reinhardt's recent opinion in Silveira v. Lockyer (9th Cir. 2002), which, again in dicta, re-emphasized and underlined the rightness of the "state rights" interpretation. You may recall that Judge Magill, sitting by designation, dissented from Judge Reinhardt's discussion in Silveira, stating that the case was obviously controlled by prior Ninth Circuit precedent adopting the "state rights" interpretation, and that nothing more needed to be said to resolve it.

All this sniping in dictum strikes me as undesirable. It seems to reflect a court that is too large, with sharp disagreements, making it hard for judges to give full respect to the "law of the circuit" as articulated by their colleagues in earlier panels. Anyway, it seems that a lot of judges around the country are spoiling for a Supreme Court showdown on the Second Amendment. Do you think it's likely to happen soon? I don't, not with multiple retirements on the horizon.

Tomorrow, law school.

Tuesday, February 18, 2003

PLAINSMAN: By way of explanation, D.'s post immediately below, which asks me to propose a topic, inadvertently got published before I had finished writing my post just below it, which does propose a topic. We'll try to keep this sort of crosstalk to a minimum.
D Reading Lyndon Johnson's War again, for the upteempth time. In it, I discovered some comments by ole' LBJ relevant to our continuing (though, to me, kind of unedifying) discussion of the Times and its status. In private correspondence, and occasionally in public, Johnson blamed the Times for his failure to mobilize public support behind his Vietnam policies. The are two organizations most at fault for our failure in Vietnam, argued the Texan, are ABC and the NYT. Lydon said that everything at the Times was designed to make him look bad.

It is statements like these that have to get the Times' staffers through the conservative onslaught now set against it. Because, having been so very right about a very wrong war, the paper must feel emboldened when against another prospective war, even though they are relegated to "not paper of record status" as compared to - and it still makes me laugh - the Post.

It is not that the Times has no warts. It is stuffy, pretentious, and unable to seperate out its interests from those of establishment New York. It issues few corrections, and it is rarely irreverant. It offers the conventional wisdom on almost every issue of the day. I agree with its editorial page too often for comfort, and even the house contrarians are libertarian (a nice religious conservative would be more useful and interesting, and would give such conservatives a needed mainstream place from which to pontificate) (and, by conservative, I do not *necessary* mean American Baptist, as so many would automatically think - why not a conservative Muslim, a Jew, a Catholic, for the sake of real diversity).

But, doesn't it give you pause to think that your opinion that the NYT is so skewed that it is anti-american (or, as you say, anti-the-red-states) is almost two generations old? If every administration ends up believing afresh that the Times has jumped the shark in its lifetime, I'd argue that the Times is doing its job, and should be praised. Just because people say that one of America's beloved cultural institutions has degenerated into a cartoonish pastiche of itself does not make it true.

At any rate, lets get back to law. We're getting too many hits with these charged topics; and besides, we should stay with what we know. Like the dormant commerce clause and that new decision from the second circuit. Pick a topic, P.

Miscellany, and a new topic

PLAINSMAN: Thanks for your patience during the hiatus. I've finished the brief.

This will be an odds-and-ends post, but at the end of it I will propose a topic for this week. We've gotten slack of late, ignoring our schedule for rotating topics; we should return to a disciplined hebdomadality. Otherwise we will not complete our training, come from behind to win the blog karate tournament, and date Elisabeth Shue.

1. National dailies. It's not surprising that despite the wonkish pleasure we take in blogging at length about Apprendi and textualism and whatnot, other people are more interested in the respective merits of the Post and the Times.

Professor Wagner suggested a while back that the Wall Street Journal is a contender too. I probably buy it more often than any other out-of-town daily -- you can't get the Post at the kiosk in my firm's building. Also, I take a weird enjoyment in the Friday "Weekend Journal" section. However, the Journal has some limitations that disqualify it from Paper of Record status outside the financial world. Its editorial page exhibits some of the tendency to political oversimplification that plagues both the news and editorial sections of the Times. The Journal ed page does a better job than the Times at maintaining standards: it has its lame days, but there is no embarrassing "must-avoid" regular like Maureen Dowd.

The Journal also gets candor points for outing itself occasionally as a conservative paper, in contrast to the Times' liberalism. One of my favorite recent features in the Journal, in fact, has been its ongoing series of highbrow guest editorials on facets of "American Conservatism." Lots of star power. They've had Roger Scruton on conservative philosophy, Judge Bork on the law, Shelby Steele on race, James Q. Wilson on the family, somebody on neoconservatism, and a view of conservatism from the left by Christopher Hitchens. (No one from the "paleoconservative" camp has been invited yet -- paleos are non grata at the Journal, as are fans of immigration restriction.)

2. Republicans and Federalists. I'm surprised that, in seeking evidence that Federalists are just partisans for the GOP, you linked to a post where one of the Harvard Law Federalists was urging tough opposition to the filibuster of Miguel Estrada. You might have done better to look for a post or document where a Feddie is advocating some constitutionally intrusive proposal for tort reform, such as nationwide federal caps on punitive damages in state court. Many of these proposals raise serious concerns under the Commerce Clause, which you would think federalism fans would recognize.

(The better approach, if you want tort reform, is to expand the federal diversity jurisdiction so that more interstate tort cases become removable to federal court. The ABA just endorsed a policy recommendation of this sort. Such legislation would still displace the policy choices made by the states in structuring their various tort systems, but at least it has clear sailing from a constitutional standpoint. No one disputes that Article III's textual grant of judicial power would permit Congress to give the federal courts considerably more diversity jurisdiction than they now have.)

In contrast, it seems to me that the Estrada affair shows Federalists being true to their principles. The core principle is a commitment to a particular judicial method, textualism a.k.a. originalism, rather than to achieving particular concrete results through judicial decisions. (Of course not everyone in the Fed Soc subscribes to this view, but most do, and it is the thought encapsulated in the Society's Madisonian credo about the judiciary saying "what the law is, rather than what it should be.")

Well, most federal judges who avow textualism, who describe it as their starting point, are appointed by Republican presidents and supported by Republican Senators. Democratic elected officials do not tend to appoint avowed textualists; they tend to appoint judges who have different views of appropriate judicial method. So supporting the GOP is a logical means to give effect to a principle that comes first. Estrada seems likely to be a textualist judge, so supporting the Republican efforts to confirm him makes sense.

I note, too, that while Estrada's nomination and eventual confirmation in an up-or-down vote might be described as "Republican" issues, it is less clear that condemning the current unprecedented filibuster of his nomination is a partisan act. Indeed, I don't think it is. Some reasons for my view are supplied in today's strong editorial on the Estrada business in the nation's P. of R., which is not a Republican paper.

3. Rabbi Meir Soloveichik's article on "The Virtue of Hate." I'm ahead of you: I already read this fine article in my subscription copy of the January First Things. FT is my favorite magazine, one of the few that I sit down and read from start to finish the day it arrives. Eve is right, the article was the best thing in the issue. In fact, I may have something more substantive to say about it later.

and 4. Topic For This Week. A couple of weeks ago we took as our subject the collapse of the Brobeck law firm. Our discussion fizzled, for the very good reason that we are young associates not far removed from law school, and basically know jack about law firm economics. The lesson I take is: stick to topics you know something about. In that spirit, I propose that this week we discuss -- what else? -- law school.

How can American law schools be improved? What purposes should they serve? We can do this at the macro level ("Redistributive taxation and federal grant programs should be used to provide massive subsidies for students who want to attend law school for certain noble purposes") or the micro level ("In large afternoon classes, profs should never turn off the room lights while lecturing from PowerPoint slides; you might as well soak a towel in chloroform and anesthetize students individually"). At your discretion.

Monday, February 17, 2003

D Our recent flattery discussion appears to have picked up some hits out in the blogosphere, which is gratifying. We also received an email from a helpful reader who explained how to bring our page into technological conformity with prevailing norms. We'll get on that, as soon as P emerges from the brief he is writing.

In further support of my argument that federalists are simply republican partisans, see this Federal Society Blog post. Near that post, as you will note, your earlier post describing the Washington Post as the paper of record is replicated. Good for you!

I have been reading EveTushnet's blog lately. She linked to a piece in First Things called the "Virtue of Hate, which I recommend to you.

What should our topic for this week be?

Thursday, February 13, 2003

D Sometimes the Onion is so good, it is scary. I urge you to click on that link, read the article, and then read the date!

Wednesday, February 12, 2003

D Alice, at least, is paying attention to this collateral discussion on flattery. Reading her blog, I am reminded that: (1) or archives still don't work; and (2) we need nifty stuff like her "talk back" button. Sophisticated readers are invited to submit helpful tips, assuming that we are technologically deficient, to our email address.

It is a nervous time, made more so, in my case, by the worry that the administration is making it up for political capital. But I join your thoughts for our friend, who, I hope, has a leaving coming up.

It would be very interesting to do an empirical analysis of linking between law blogs that sought to isolate for the influence of flattery. Take a look at this essay. The question for those bloggers in the "tail" (meaning those with few incoming hits) is how to become a powerful blogger, for whom, as Instapundit is learning, the rewards include not only influence but mainstream media attention and money. One way is to craft lots of well-written statements in reflexive support of the current political administration. Another way, I'd hypothesize, is to shamelessly flatter the people at the top of the tail, hoping that they will link to you. One way to isolate this influence would be to ask how many popular liberal blogs (like, for example, TPM link to conservative blogs (unlikely to flatter them), and visa versa. With respect to law blogs, it might be harder to tease out, because lawyers are more often skeptical than ideological, and so, I think, are more open to reading and linking to diverse viewpoints.

Howard, you polymath, what do you think of all of this?

Tuesday, February 11, 2003

PLAINSMAN: I have to admit, that was a droll anti-puffery performance -- likely to stick with me.

Perhaps instead of "smart" I just mean "rationalistic" or "big picture." My view with respect to clerks' drafts of opinions (or speeches; but those snippets from Judge Jones sounded rather heartfelt to me) is that a Judge's personal level of comfort with mounting big arguments, or with working out a theory in a particular area of law from first principles, greatly subsumes the tendency of the clerks to be more, or less, rationalistic than their judge, as long as the judge is a good editor and manager.

One last thing (I have to leave for the day): It's a nervous time, isn't it? Background nervous; a bristle on the back of the neck as you turn on the TV in the morning. Things are going to jump off soon. Thinking of you, and friends throughout the country. And our classmate in the service.
D On Atkins, I think your insight about its connection to the ICJ opinion is interesting. Note, here, I am not saying you are interesting, just your opinions :). Of course, from personalexperience, I know you are witty, brilliant, funny, cultivated, and dapper. And I am consistent and steadfast in my convictions.

Where were we (flattery is so distracting). Oh yes, Atkins. In connection with your earlier post, I note that I too felt that Atkins' reasoning was troubling. The "evolving consensus" rationale is about as outcome oriented as one can imagine. And, I also agree, the court's search for precedent, including both international law and polling data, was weak. It is, I think, connected to the court's ability to find such information - a digital age phenomena - and, as such, further indirect support for my moratorium on putting judicial opinions online. (very, very indirect). It is impossible to imagine the court of 1901 using such a wide variety of sources to support its arguments. One might argue that the early court was more closely tied to historical materials, but I think the better point is that such diverse support was just too hard to find. One depends on opinion polls and international law because they only a google search away. And, when one does rely on an opinion poll, it becomes a piece of rhetoric, which is an especially interesting phenomena.

That Chief Justice sure can sometimes be wicked smart.

d Withour prejudice to my fuller response at another time (perhaps a whole week on this topic would be good), I still think its silly to describe fellow bloggers, or Judges, or lawyers, as "smart" or "dumb" in this blog. With respect to Judges, one first should note the uncomfortable fact that it is highly unlikely that Judge Jones actually wrote her McFarland Commerce Clause dissent herself. No doubt hers was the principal mind, but her clerks (I would expect) did the heavy lifting. There are some Judges for whom this would be untrue - notably Posner, Easterbrook - but for most, opinions are a bad proxy for intelligence (but a good proxy for beliefs).

Yes, P, I know that her clerks likely also wrote the speech we are discussing, so, if by Judge Jones you meant "Judge Jones et al" then I guess you are right that "Judge Jones et al" produces smart work. But it is even more uncomfortable to acknowledge that law clerks are often pressed into service in non-judicial functions. Recall that the Federal Judicial center's law clerk handbook explicitly states that part of a law clerk's duties may include personal errands. No joke.

But this is besides the point. Flattery can be offensive even when it contains truth. Although ordinarily I don't particularly care, in the special context of blogging I think it necessary to take a harder line. One of the way that people build hit-counts on a blog is to link to others; the most effective way, I suppose, is to link and praise at the same time. I remember in college reading a lovely psychology study exploring the relationship between someone praising you and how much you liked them. The core result, that praise = affection, isn't surprising. But what shocked me was that even when we know praise is insincere, we will still feel more affection to the praising party. We just can't help it.

So, on blogs, flattery is ubiquitous. People link to others who praise them, and then end up reading, largely, the opinions of those with whom they agree. Its a bad thing, and we should strive against it.

Monday, February 10, 2003

PLAINSMAN: Very quickly -- without prejudice to a fuller response later -- I appreciate your distaste for our describing judges whose work we discuss as "smart." Or, indeed, "dumb." But as long as such comments don't reduce to mere unreasoned cheering, I think they provide some valid critical color.

I thought my remark about Judge Jones's mindset was relevant to the task of trying to extrapolate her argument from the snippets in the UVA press release. On one hand, conventional wisdom among law students and clerks says that she freely expresses strong views. Hence, maybe she was just plumping for conservative morality. On the other hand, her opinions seem to reflect considerable intellectual "follow-through" -- e.g., the analysis in her separate en banc dissent in the McFarland Commerce Clause case I blogged a while ago. She seems "smart." That makes it somewhat more likely that she was making the more complicated argument I tried to set out below.

As you say, I reject the argument that I sketched for conservative judicial activism. Some people embrace it: I think Austin Bramwell over at Ex Parte, the Harvard Law Federalist Society blog espouses such a position, and there are also those like Prof. Richard Epstein who promote constitutional theories of economic liberty (e.g., that Lochner v. New York was correctly decided) that require the importation of so much philosophical baggage into our understanding of the Constitution's provisions that they may no longer qualify as interpretivist, but instead are substantively conservative, or rather, libertarian.

A last stray thought on international organizations. (I pause to consider the fact that I've now been described, though politely, as "Kissingerian." Or as having a Kissingerian streak.) Despite its hard line, the Helms speech expresses a positive vision of some things the UN does: provides a forum for international communication, offers humanitarian assistance, etc. I do not reject, in principle, the assignment of some other functions. It's good for all nations to have a way to come together and uphold jus cogens norms. What worries me is how things are turning out in practice. Problems arise when international-law institutions start acting like certain norms are peremptory that, in fact, are not. Much of the international wrangling about the U.S. death penalty strikes me as reflecting that sort of encroachment.

The Supreme Court's opinion in Atkins v. Virginia quickened that fear, I should add, by citing the "the world community"'s "disapprov[al]" of executing the mildly retarded, in support of the conclusion that such executions are legally prohibited by the United States Constitution. Chief Justice Rehnquist was sufficiently disturbed by this to write an additional dissenting opinion decrying the Court's reliance on "foreign laws, the views of professional and religious organizations, and opinion polls."

The anti-puffery principle surely isn't violated as long as we stick to comparisons, is it? I'll say only that I thought the Chief's Atkins dissent was more effective than the other opinions in the case, including the heated dissent of Justice Scalia.

D: On Judge Jones. Since we are pseudo-anonymous bloggers, my first comment is that it is unwise to preface comments about living people with either complements or attacks, on the theory that such adjectives are little more than reputational puffery that, while appropriate in person, is unnecesarry in the safe comfort of anonymity. I don't know Judge Jones. Although I am willing to take your word on her being "peppery and outspoken," saying that she is "quite smart," (just like saying she is "quite silly" or "quite dim") is just unnecessary filler. I know we have discussed the tendency of many blogs to be an endless cycle of praise for other blogs; this is to be avoided, and one of the reasons we are anonymous is to enable us to break the cycle of praise.

On the content of her speech, I refer you to a recent post by Prof. Balkin. Balkin discusses the substantive ideology behind textualism. Rather than summarize him, I urge you to go there and read what he has to say. I agree in part with Alice's suggestion that Judge Jones comments strayed a bit from the Federalist Credo. But, I'm not sure the credo represents the organization. Federalists, at least those I've spoken to, tend to be politically conservative as well as constitutionally conservative. That is, they are pro-life as well as anti-Roe; pro-religious schools as well as anti-establishment-clause; against homosexuality as well as pro-Bowers. Not all federalists, mind you, but most.

So, one could argue that you are right: it is rhetorically possible to argue against "liberal judicial activists" and for "conservative judicial activists." But to do so, you would first have to come down off your high chair and admit that what everyone is doing is politics, and no one is more righteous than his neighbor. [Note, in the last sentence I use "you" in an impersonal way; I'm not referring to you, P, at all, or if I am, it is only tangentially]. Just like the law and economists, when you strip down the models, all we are left with is power and rhetoric.
D When you blog, you aren't kidding around. Lots to respond to, I'll do it in bite-sized chunks. Taking on your points in reverse order, lets start with the ICJ. Skepticism about its foundations is an easy response to its existence, and, indeed, the very response that I had during my international law course several years ago. The intuition that coercive power is the necessary element to a legal system's legitimacy (or is it morality) is pretty appealing. It tells us a great deal both about systems with such power and systems without. Your idea that a system founded on cooperation degenerates inevitably into "Realpolitik," and that, therefore, one has to question any output of such a system as a matter of principle, is Kissengerian in its origin and application. Not that this is entirely a bad thing.

But further reflection has led me, at least, to a more nuanced set of views. What I found refreshing about the international lawyers their ability to become comfortable with substitutes for coercion. [[e.g. international customary practice, agreements to compel jurisdiction, the idea of norm propogation through human rights treaties, etc.] To the extent that we see international courts as like ADR mechanisms among sovereign states, we might be able to wrap our mind around the idea of them compelling us to act in actions of limited effect. Repeat player litigants have allowed themselves to be coerced by ADR because in the long run it benefits them to do so. The same is true for international law. We should treat international law as binding, even though it is not, because the world will be a better place for us if we do.

This, then, brings us to the second implicit point you make, and one which has been raised explicitly elsewhere by Kaplan (I need to find the link): in a unilateral world, the United States no longer benefits by a system where international law has coercive power. This seems to me to be possibly right, but short-sighted, insight. Of course, I am not saying that because one day the U.S. will decline we must now act to preserve our ability to then argue that international law should protect us against stronger countries. This kind of argument is flawed, for at least two reasons: (1) its just bad policy to significantly privilege the future over the present, especially the far future; and (2) future powers will be unlike to forgo exercizing dominion over us, no matter how consistent our position may be.

But there are times when it makes sense to flout international law, and there are times when it doesn't. When national security is at stake, I say screw the precedent, high ho silver and away. But, when the issue is consular notification of death-eligible suspects, and retrial of a very small number of such suspects, why rub salt in an open wound?

On the distant day when we actually need the protections of international law, and our enemies' version of Jesse Helms is demagoging against us, it would be preferable to have, if not clean hands, than at least undirty ones.