Tuesday, April 29, 2003

Justifiable reliance?

PLAINSMAN: When you're in the middle of a discussion of the merits of studying Contracts, it's ironic, and bad form, to promise to post something at a certain time and then fail to perform that promise. But as you'll all have noticed, that's what I've done. The situation prompts one to muse about the application of Restatement sect. 90 to the blogosphere ("But Plainsman! I carefully set aside 10 minutes of web-surfing time in Corporations class to read your blatherings about that article, yet I get nothing! Nothing!"), but I'll set those thoughts aside for now.

All I can say is that I'll post the stuff I said I would as soon as I can.

In the meantime, I tried to push the argument for the superiority of Contracts forward a couple of steps in the comments section of this post over at Mr. Poon's establishment.

And I almost let slip D.'s question whether Con Law should be a first year subject. Hmm. I go back and forth on this. What I would like to see offered at an early stage in law school is some sort of "History and Structure of the Constitution" course. Students would read some Blackstone, some English history, some American revolution. They'd especially study the history of the Constitutional convention. Then march through the text of the Constitution, clause by clause, studying where each clause came from, and what its legal antecedents were. Then it's finally time to turn to the great cases.

I don't know how well the format would work (haven't some law schools experimented with such courses?), but I think the potential upside would be very high. In addition to filling up the gaps in most law students' historical literacy (self not excepted), it would lay a foundation for a more serious examination of textualism and originalism than most con law courses give today.

Saturday, April 26, 2003

Mea culpa; Why Contracts rules

PLAINSMAN: OK, I have to extend a sheepish rain check on my already much delayed follow-up post on "Is There a Distinctive Conservative Jurisprudence?". Lame, yes. There's just been too much billable activity going on around here. (You young law student whippersnappers with spare time to blog are objects of my jealousy.)

Tomorrow, I promise.

Meanwhile I shall express my disagreement with D. and Mr. Poon about the relative merits of Contracts compared to Civil Procedure and other first-year subjects.

Contracts rules because:

(a) it's more case law driven than civ pro (hence more interpretive fun), although the UCC and Restatements also add a "statutory" element;

(b) it contains some of the most memorable presentations of the great dichotomy of rules vs. standards, thus teaching you whether you're a "rules" type or a "standards" type;

(c) contract law actually forms a vaguely coherent body of doctrine, unlike torts;

(d) the classic contracts literature is of superb quality (Holmes, Williston, Corbin, Fuller, Kessler, Gilmore, Kennedy, Fried), and 1Ls usually get some exposure to it;

(e) Civ Pro exams are hard. I did much better at Contracts. :)

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Thursday, April 24, 2003

[sorry; ignore]
Santorum's Foolish Candor

There has been a great deal of discussion in the blogosphere about Senator Santorum's interview with the AP, during which he said, in relevant part:

I have no problem with homosexuality. I have a problem with homosexual acts. As I would with acts of other, what I would consider to be, acts outside of traditional heterosexual relationships. And that includes a variety of different acts, not just homosexual. I have nothing, absolutely nothing against anyone who's homosexual. If that's their orientation, then I accept that. And I have no problem with someone who has other orientations. The question is, do you act upon those orientations? So it's not the person, it's the person's actions. And you have to separate the person from their actions.
this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong, healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family.
In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing.

Some have called for the Senator's resignation from his leadership positions in the Senate. Others (like Eugene Volokh) have defended his statements as, essentially, a constitutionally grounded attack on Roe.

Personally, I think it unwise to give Santorum credit for any great subtlety of mind. But a nuanced constitutional interpretation of these comments is patronizing as well as factually inaccurate, and is evidence of lawyer's attempted monopoly of all moral and political discussion in society. Volokh finds it difficult to imagine an establishment figure expressing moral disapproval of a class of individuals based on private sexual practices; he is therefore driven to impose his own constitutional framework on Santorum's comments. But not everyone thinks like a lawyer, or hopes to put all arguments in legal terms. Sometimes people - even powerful senators - just speak from the heart. I think Santorum thinks that homosexual conduct is like bestiality and incest. Individuals who practice such conduct should be loved, because God instructs us to love sinners and hate sin, but the conduct itself ought to be stamped out. This belief finds deontological (i.e. God forbids) and utilitarian (i.e. homosexuality hurts marriage) support.

Such options are held by a large - although no longer a majority - segment of the American population. Driving such comments underground by reinterpreting them as elitist talk makes it impossible to change minds. This doesn't mean that Santorum should hold a leadership post in the Senate. He shouldn't. Tom Daschle should.


Santorum is a lawyer. Whoops. When I suggested before that Volokh was foolish for thinking that Santorum was speaking like a lawyer when he opined about the connection between privacy, incest, and homosexuality, well, it turns out that Volokh wasn't entirely off the wall. In my defense, the Senator didn't sound like a lawyer. I've noticed that lawyers, especially practicing lawyers, tend to speak in a kindred way. Santorum doesn't feel like part of that family.

First Year Courses

Nah, contracts is interesting only if well-taught. And, having not experienced such good contracts teaching, it is safe to say that the best first year course, by far, is Civ. Pro. I agree with Mr. Poon (who emailed the blog) that civ pro is the best combo of practical and (potentially theoretical) of the majors. Of course, the way I learned it, there was little theory, but I had the sense that all the big issues were there, somewhere, if only I could understand the basics.

The problem with contracts is that, as it's usually taught, a great deal of time is spent on offer-acceptance issues, and very little time is spent on breach-remedy solutions. This is bad because, as we know, most of a litigator's time is spent figuring out either: (1) if we breach, what will happen; or (2) we've breached, how screwed are we? (And by my frame, it should be obvious that I don't work for a plaintiffs' law firm.) Very very little time is spent, at least in commercial litigation, figuring out what is an offer and what is an acceptance, and I've never, ever, dealt with a consideration problem as a lawyer or a law clerk.

Now I'll throw one back at you. Constitutional law. Good first year course? Or too much too soon?

Wednesday, April 23, 2003

PLAINSMAN: No Supreme Court decision in Chavez v. Martinez today. And from me, no, or minimal blogging for the next couple of days. My reply re: Judge Wilkinson's article will be up by Saturday.

In the meantime, in the spirit of Mike Meyers's Linda Richman: "The best first-year law school course = Contracts. Discuss amongst yourselves."

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Tuesday, April 22, 2003

A Necessary and Proper Clause Decision; other Supreme Court odds and ends

PLAINSMAN: This is not the coming post on Judge Wilkinson. I just wanted to note that the Supreme Court issued three opinions today. Two were statutory opinions that are, I'm sure, of importance to those with cases in the respective fields: Clackamas v. Wells (Americans with Disabilities Act) and Dole Foods Co. v. Patrickson (Foreign Sovereign Immunity Act).

The most interesting of today's opinions is Jinks v. Richland County, an enumerated powers case that deals with the interpretation of the Constitution's Necessary and Proper Clause. Somewhat like the Ninth Amendment, the Necessary and Proper Clause (which some like to call "the Sweeping Clause," a usage I disfavor -- why not call the Tenth Amendment the "Sweeping Amendment"?) is one of those third rails of constitutional adjudication: it seems to mean something rather significant, but its language is so abstract that it's hard to give legal substance to it.

In Jinks today the Court holds, per Justice Scalia, that Congress acted within its powers when it enacted 28 U.S.C. 1367(d), the part of the federal supplemental-jurisdiction statute that briefly extends state statutes of limitations on pending state-law claims in federal court while the federal court decides whether to exercise supplemental jurisdiction over them, and for 30 days thereafter. The point is that if your state law claim was timely when you tried to assert it in federal court (or when your adversary tried to remove it there), you shouldn't have to forfeit your claim if the limitations period expires while it's before the federal court and the federal court then decides not to entertain jurisdiction of it. The 30-day grace period gives you a chance to refile in state court.

Extending a state statute of limitations is, in principle, a fairly significant intrusion on the state's authority. The South Carolina Supreme Court held below that the federal statute extending the state limitations period was unconstitutional as applied to lawsuits against municipal defendants.

However, the Supreme Court unanimously reversed. It held that Section "1367(d) is necessary and proper for carrying into execution Congress's power '[t]o constitute Tribunals inferior to the supreme Court,' U.S. Const., Art. I, sect. 8, cl. 9, and to assure that those tribunals may fairly and efficiently exercise '[t]he judicial Power of the United States,' Art. III, sect. 1."

Citing McCulloch v. Maryland, Justice Scalia notes that "we long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be 'absolutely necessary' to the exercise of an enumerated power."

So how closely related does the law have to be to the core of the enumerated power in order to be both "necessary and proper"? Well, the Court explains, it has to be "plainly adapted" to the stated purpose; it can't be a mere "pretext" for regulating something else that's outside of Congress's powers; and oh yes, the connection between the law and the granted power can't be unduly "attenuated." Rather straightforward, eh? Here's the actual discussion:

"We are also persuaded, and respondent does not deny, that §1367(d) is "plainly adapted" to the power of Congress to establish the lower federal courts and provide for the fair and efficient exercise of their Article III powers. There is no suggestion by either of the parties that Congress enacted §1367(d) as a "pretext" for "the accomplishment of objects not entrusted to the [federal] government," McCulloch, supra, at 423, nor is the connection between §1367(d) and Congress's authority over the federal courts so attenuated as to undermine the enumeration of powers set forth in Article I, §8, cf. United States v. Lopez, 514 U.S. 549, 567-568 (1995); United States v. Morrison, 529 U.S. 598, 615 (2000)."

You gotta love that "Cf." cite at the end to the Rehnquist Court's two great enumerated powers cases. This is called "how to squeeze a unanimous federalism opinion out of the present Court." Anyway, section 1367(d) seems like a well tailored provision that furthers a clear textual power, the administration of the federal courts' concurrent jurisdiction. Thinking about Necessary and Proper Clause doctrine still gives me vertigo, but the holding the Court reaches here appears correct.

There's another section where the Court rejects the argument that it's inherently improper to let the federal government regulate state court procedural law, such as the statute of limitations. Justice Scalia writes that the tolling of limitations periods is more of a "substantive" provision in the present context, permitting the federal government to regulate it. He cautions, though, that "[t]o sustain §1367(d) in this case, we need not (and do not) hold that Congress has unlimited power to regulate practice and procedure in state courts." This is fine, and Justice Scalia has some authority to cite here, but I did not find the level of argumentation in this part of the opinion especially impressive.

So, that's today's federalism box score. Be on the lookout tomorrow for Chavez v. Martinez, this Term's big Miranda/self-incrimination case. The Court will be deciding, inter alia: "Does violation of the Fifth Amendment, potentially resulting in an award of civil damages, occur at the time of the purported coercive interview or only when and if the state introduces the constitutionally violative statement in a criminal proceeding?" Professor Volokh had a useful post on the issues last June when cert was granted in the case.

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Monday, April 21, 2003


I'm still waiting on Wilkinson, Mr. P

I (and our readers) await your promised response to my charge that Judge Wilkinson has articulated a well reasoned version of conservative lawyers' fantasy ideology.

While we wait
Regarding use of Mr. and Ms., I agree with you in relevant part. One of the most difficult things I did as a law clerk, at least at first, was to ask senior partners at law firms to cease calling me by my first name, and instead refer to me as Mr. [D]. They often responded that I should feel free to call them by their first name. When I first started clerking, my acceptance of this deal created a few problems when it turned out that the informal conversation that followed was only a pretext for the lawyer taking advantage of me. From which I learned a lesson: last names remind you that being a lawyer (or a clerk) is about putting on a professional role. It is a little odd, but I'm much more comfortable being tough and/or difficult as Mr. [D] than when I used my first name. So these days I try to preempt informality as much as possible.

Except with respect to professor-student interactions, about which I have mixed feelings. There may be a case for a difference between undergraduate and graduate students. And there also may be a case for the appearance of informality by a professor, as a means to subtly teach law students that authority -especially legal authority- needs to be questioned. In that vein, read Judge Greenberg's concurrence in the (soon to be famous) third grader circus petition case. To wit "I recognize that some people are of the opinion that it is never too early for a person to learn to challenge authority . ..."

Saturday, April 19, 2003

A Gripe About Forms of Address in Legal Practice and Law School

PLAINSMAN: American manners are fluid. We are, it's said, a frank and informal people, though such statements should be qualified by the testimony of foreign-born observers like National Review's John Derbyshire, who contends that "[t]he American South is probably the best-mannered region in the entire English-speaking world."

At any rate I am firmly with Miss Manners that a certain amount of social formality is a blessing. It makes interactions easier, not harder; richer and more nuanced, not repressed. It's like having a larger vocabulary: it lets you say more things.

I have no interest in going back to the days of the artfully crimped calling-card corner; here as elsewhere, the point is reformation, not reaction. I just want to point out a simple politeness that is easy to adhere to, and that I wish more people followed. It's the use of "Mr." and "Ms." in professional and school life.

At work, as you'd expect, I often need to call up a lawyer outside the firm whom I haven't previously met. It could be opposing counsel, co-counsel, or a judge's clerk, though a call to opposing counsel makes the issues particularly clear. My policy is always to use "Ms. Smith" or "Mr. Williams," until (as often happens immediately) the other person calls me by my first name.

When they do, I want to say: Look, you're probably a very decent person, but I don't know you. Maybe we'll become chummy down the road and then the use of first names will be appropriate. But in the early stages of professional acquaintance, a respectful "Ms. X" feels much better. We all have two names; let's exploit them!

However, I seem to be in a minority, at least in the city where I work. The other person usually busts out, with the assumed intimacy that's very common today, and calls me "[First name]." Sigh.

Then I'm in a quandary, especially when it's opposing counsel who does it. You want to be polite to opposing counsel, but never deferential or subservient. So, if the other person is clearly equal or junior to me, I sometimes indulge my preference and continue using "Mr." or "Ms." But if I'm speaking with an older or more experienced opposing lawyer, I can't go on calling him or her "Mr./Ms. X" while he or she casually calls me "[First name]." That would set the wrong tone. So in such circumstances I have to grit my teeth (mentally) and reciprocate, calling opposing counsel "Bill" or "Sharon" or what have you.

Ideally we would be "Mr. So and So" to each other for a while, until we've had a few repeat interactions. There's nothing at all bizarre about such a convention. The Germans and Japanese call their co-workers "Herr/Frau Lastname" or "Lastname-san" -- for years. This was especially true in previous generations. It can be true even between long-time, friendly office-mates, who often meet for a beer after work.

What I wish for is a milder convention than that. It would be nice, and not unfriendly. Surely many of us (probably more men than women) have friends at the office or at school -- peers with whom we're genuinely cordial and at ease, but who are not quite our close friends -- whom we greet with a jaunty, "how goes it, Mr. So and So?" Yes? Nothing repressed about that. So if it helps you get in the spirit of using "Mr." and "Ms.", just carry that attitude over to your business interactions generally.

Same deal in academic settings. It's one thing for you and your thesis adviser, after several months of hard work together, to adopt the use of first names. But that should not be the norm. I know that in law school I strongly preferred for professors to call me "Mr. [Last Name]" at first, not my (perfectly pleasant) given name. And I always called them "Prof. So and So." The relationship between professor and student in the modern university involves a measured distance. Ideally it should be cheerful, mutually respectful, focused, and intense. But it's also nuanced with professional authority.

Thus, seeing law school profs lead off a class by calling on students as "Bob" and "Dan" and "Jill" strikes me as contrived -- even in small classes. It borders on the passive-aggressive disrespectful. And don't get me started on profs who themselves insist on being called "Betsy" or "Steve" in class. The teacher-student relationship can be important and valuable without our pretending that we're all best mates.

Thank you, and good evening.

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Friday, April 18, 2003

Face To Face

PLAINSMAN: The Philadelphia district court opinion D. links to below conveys a flavor of life in the district court. I had clerk friends in the courthouse where I worked who had to carry out agonized, ongoing dealings with obstreperous litigants, some of whom would call several times a week. Most aren't like that, of course. But I admired the district clerks' forbearance and professionalism.

Here's a fact that conveys the difference in mood between district court clerkships and circuit court clerkships. In the district court, people are in the judge's and clerks' faces all the time. Many trial judges give significant docketing and scheduling responsibilities to a clerk. Lawyers constantly call you up, scheduling hearings, coaxing extensions, asking questions about how to file a such and such motion. In contrast, in my entire year as a circuit clerk I never spoke to a party's counsel. Not a word. It's not done. I never saw, let alone spoke to, an actual litigant, unless she accompanied her lawyer to court for the oral argument. The litigants exist in their briefs and the record. This is punctuated on the day of argument by a temporary coalescing into the flesh and blood visages of the lawyers, but then dissolves again into a skein of words, facts and legal principles.

However, in poring over a long, factually rich record on appeal, you'd be surprised at the ways a lawyer's or witness's personality can seep through.

* * *

Go here, and read the "Addendum" section of Reshard v. Main Line Hospital, an opinion by Senior U.S. District Judge Robert F. Kelly. As a former district court law clerk, I sympathize with both the Honorable Judge Kelly and with his law clerk, who must be feeling very good today to have found a way to get rid of a real pest. But regardless of the Judge's evident frustration with the litigant, it is vivid, human, opinions like this that remind me why I didn't choose to be an appellate law clerk. Appellate opinions rarely provide Reshard's insight into how pro se litigation actually works. It is one thing to state, as many appellate courts do, that Judges must give leeway to the self-represented. Appellate Judges all too often have pro se law clerks who screen the nonsense. District Judges have no such protection. As a result, a district court judge (and his or her law clerk) has encounters that an appellate judge (and clerk) never do. I found such encounters with real people a real tonic to the self-righteousness and sense of power occasioned by dealings with lawyers.
Southern Appeal and Sam Heldman Debate the Bill Pryor Nomination; Hope v. Pelzer Provides Some Clues

PLAINSMAN: I know I still need to reply to D.'s dismissal of Judge Wilkinson's article on jurisprudence.

But at the moment, that's too hard. I thought I'd share some legal thoughts prompted by the blogosphere debate over President Bush's nomination of Alabama Attorney General Bill Pryor to the Eleventh Circuit. The leading contenders have been "Feddie" at Southern Appeal, who is a current judicial clerk and a pro-Pryor Southerner, and Sam Heldman, a onetime judicial clerk, a labor lawyer and an anti-Pryor Alabamian.

It has been an interesting exchange. Recently, Sam has contended that we can learn some discouraging things about Pryor from the brief he filed as state attorney general in Hope v. Pelzer (2002), a recent Eighth Amendment case involving the treatment of Alabama prisoners.

Prison guards cuffed Hope, a disruptive prisoner, to a "hitching post" on two occasions, one time for several hours, shirtless, in the sun, giving him periodic water breaks but no bathroom breaks. Hope brought a federal suit for damages against the guards (Pelzer et al.) on the ground that punishing him in this way violated his constitutional right to be free of "cruel and unusual punishment."

Such constitutional tort suits against government officials are governed by a "qualified immunity" standard. To win, the plaintiff has to prove not only that the officials' conduct was, in the court's judgment on the merits, unconstitutional, but also that the relevant constitutional law that the guards violated was "clearly established" at the time of their conduct -- so they had no excuse not to know what they were doing was illegal. Hope lost in the Eleventh Circuit (the court to which Pryor has now been nominated) because that court thought the constitutional violation was not so clear at the time as to overcome the prison guards' qualified immunity.

The Supreme Court granted certiorari, and it reversed, six Justices to three. The majority, in an opinion by Justice Stevens, held that the conduct alleged by Hope "was a clear violation of the Eighth Amendment," so qualified immunity did not apply. One reason the Court thought the law on this point was "clearly established" was Gates v. Collier (5th Cir. 1974), an earlier decision by the Fifth Circuit (back when Alabama was sitll part of the Fifth Circuit). Gates held that certain types of corporal punishment of prisoners, including cuffing them to things for long periods of time, would violate the Eighth Amendment.

Now, Attorney General Pryor defended the Alabama guards in the Supreme Court. He did not merely argue that the guards' use of the hitching post did not violate "clearly established" law -- which, if true, would have gotten them off the hook. He went further and claimed that their conduct was, in fact, constitutional under the Eighth Amendment. Sam thinks this is bad news, and reflects poorly on Pryor. He writes:

"This was one of those cases where precedent points with absolute certainty towards one correct answer, and Bill Pryor avoided that answer with all his strength. The Supreme Court recognized that Fifth Circuit precedent (and other law) was so clear, that every reasonable public official in Alabama – even one with no law degree – would have known that this behavior was unconstitutional. But Bill Pryor placed himself outside the bounds of 'reasonable,' in his attempts to evade the force of that precedent."

Sam has partly succeeded in convincing me that General Pryor's arguments in Hope v. Pelzer reflect bad judgment on the meaning of the law, and thus reflect negatively on his nomination. But I'd offer two caveats.

1. I think Feddie has a point that, as Alabama's AG, Pryor had limited discretion in defending the guards in the Supreme Court. He is the state's lawyer, and when state officers get sued for official conduct it's natural to expect that the AG will defend them.

However, this doesn't affect Sam's other point: Pryor had discretion to choose how to present the guards' case to the Court, and he chose a rather harsh and unpersuasive tack over an equally available argument that was more moderate and persuasive. The conduct at issue in Hope was, on the straight merits, an Eighth Amendment violation. Pryor could have conceded that while strongly defending Pelzer et al. on the qualified immunity question.

2. This brings me to my other caveat. Sam's description of the qualified immunity issue in Hope strikes me as somewhat slanted. My reaction when I first read Hope was surprise at how persuasive Justice Thomas's dissenting position turned out to be. Of course readers know I admire Justice Thomas, and often find his opinions persuasive. But I had followed the case beforehand and formed my own view, and I went in thinking it should be a slam dunk for Hope -- he was obviously entitled to prevail over the guards' qualified immunity claim.

I was surprised to find at the end of my reading of Hope that it was a close, arguable case, though ultimately I still think Justice Stevens's majority opinion is correct.

(Even Stevens was impelled to characterize Justice Thomas's opinion as the "thoughtful dissent" -- not a routine concession on Stevens's part.)

Sam's precis of the case omits to mention why it was close. While there was a relevant 1974 Fifth Circuit decision on the Eighth Amendment, there had also been a number of quite recent decisions by the Alabama federal district courts holding that conduct very similar that at issue in Hope's case did not give rise to liability. Not twelve months before the events at issue in Hope, one Alabama federal court had held that hitching a prisoner to a post under rough conditions did not violate qualified immunity, and declined to decide whether it was an Eighth Amendment violation. Another district court had actually held that using the post did not violate the Eighth Amendment.

Now, as Justice Stevens pointed out in response to Justice Thomas, circuit precedent must trump district court precedent. But from the standpoint of what a "reasonable person" would take to be the state of the law, it's hard to deny that the existence of these district court decisions makes the qualified immunity question a closer one. In my view Sam should have acknowledged this more clearly.

This is only partly relevant to our task of evaluating General Pryor, since he went whole hog and argued that the use of the hitching-post was downright constitutional. But at least one federal district court agreed with Pryor (though it seems to have misread its circuit precedent in doing so).

* * *


Another lawblog recommendation

Tobias Stern recommends Just Opinions, a new law blog. For a description, he says "think of the site as Sub Judice, with more time to write, and shifted to the Left a bit."

Thursday, April 17, 2003


As "P" and I decide whether to move to movable type, or simple renovate on the evil empire, I've been checking out some other law blogs. Some blogs I admire for their differing styles are The Legal Guy; Constructive Notice; Ignatz; and, of course, A Mad Tea Party. They are all vastly preferable to our set-up, which has several disadvantages: (1) it is impossible to access archives with frequency; (2) it is hard to keep track of our weekly topics; (3) there is too much text to read; (4) the background isn't pleasing. P and I have been working on these problems off-line, and promise to remedy them soon. I will tell you that there is no excuse on my part for these errors, as I once, in a past life, did html coding for a college website, and should be able to, at least, get us from a white to a lovely tan background.

But, on the plus side, we are now google's #1 response to a "Sub Judice" query. Jose de Castro Ferreira, your newsletter has been defeated.

In more substantive news, I read Doe v. Heck, the Seventh Circuit opinion Bashman blogged ("Bashlogged") yesterday. The case is even more interesting that the bashlog suggested. A bunch of social services officers, investigating allegations of child abuse, made life hell for parents who sent their children to a private religious school that permitted corporal punishment (in this case, more than spanking, less than beating). The school and parents sued, on a number of grounds. On the fourth amendment seizure ground (for taking the children), the parents managed to convince the Seventh Circuit to find unconstitutional as applied a Wisconsin statute permitting the social workers to interview children without their parents' consent anywhere outside the home without a warrant. Of course, since this was a novel interpretation, the social workers had qualified immunity. The parents also tried to push a 14th amendment theory of familial integrity, based on Troxel et al. Their theory was that by treating corporal punishment as per se evidence of abuse, the state was intruding on their liberty interest to raise a family as they pleased (including spanking their child and allowing a school to do so in loco parentis). The Court, surprisingly, found it necessary to hold that there was a liberty interest in spanking a child, before, unsurprisingly, finding that the social workers had qualified immunity because the right was not clearly established.

Wednesday, April 16, 2003


SARS Update

Today, the WHO confirms that a newly discovered coronavirus is the causal agent for SARS. This astonishingly quick discovery should be put in perspective: it took over two years to track down the HIV virus in the early 1980s. If SARS has been stopped in its tracks and turned back before it became a pandemic, we need to recognize the work done by the WHO and its network of labs.

On the "not becoming a pandemic front," the news is mixed but trending positive.

1. The WHO reports that SARS is "under control" outside of Hong Kong and China, it is clear that SARS is still raging through China, and we should expect more revelations about China's cover-up soon.

2. There are suggestions that authorities have lost control of the quarantine in Canada.

3. By my calculations, and as I predicted on April 8, the overall mortality rate is now closer to 5 than 4 percent, as Hong Kong has reported that a rash of patients succumbed to infection in the last few days, including many who were neither elderly nor immuno-compromised.

4. As this blog first reported - notwithstanding others' views - the growth in new cases is stable or declining - it is not exponential.

I am going to hold off posting more about SARS for a while, for a few reasons. First, the national media have picked up the story and are running daily reports, even on the evening news. While I had previously thought that the day Peter Jennings mentioned SARS would be the day that we realized it was endemic in the U.S., it turns out I was wrong. With Iraq war news fading, SARS is now a viable candidate for news treatment even if it isn't yet a pandemic. Therefore, the need for this blog to take time away from legal discussions is quite a bit reduced. Second, the data I've collected suggests that SARS increases in cycles of sharp increases followed by lulls. The highpoints have been roughly conterminous with SARS' 10-14 day incubation period - April 14, April 2, and March 26 - but I want to wait until the next wave to see if this is an artifact of the way countries are reporting infections. If the incubation period hypothesis holds, it is great news, because the average jump in cases during such spikes is decreasing. Thus, what we may be seeing is an echo effect of declining magnitude.

Monday, April 14, 2003


A Failure of Imagination

Shortly after September 11, 2001 Tom Friedman argued that the disaster was not a failure of security, but one of imagination. We'd been so blinded by our own worldview - our own confirmation biases - that we were unable to conceive of the attack when it came. This thought, whether intentionally or not, is paralleled in Lee Harris's "Al Queda's Fantasy Ideology", a wonderful thought piece from the WSJ I've recommended to you before. Both authors warn of the dangers of dismissing an enemy as a merely a category type (poor; fanatic; rational; insane). Doing so is convenient, but it renders you unable to process fresh information about your enemy in an intelligent way - you incorporate all information about your enemy as confirmation of what you already have decided to be true about her. However, their prognoses were different. Friedman argued for understanding our enemies and making them our friends; Harris argued for understanding our enemies, and then destroying them. Today, I'm with Harris.

All this is a caution as I sort through my thoughts of the Wilkinson essay, about which you so ably provided exigesis last week. As you note, the Judge provides a sharp defense of conservative judicial activism. He even attempts to rescue the word activist from its discredited place in the pantheon of adjectives, rendering it merely as descriptive term - an activist Court exercises its powers of judicial review generously.

According to the Judge, the difference between a "liberal" and a "conservative" activist court lies then not in means, but in ends. A conservative court is a modest Burkian: it reinforces "mediating institutions" so as to preserve the social fabric of an increasingly ethnically diverse nation when - and only when - required by textualist norms. By contrast, a liberal court epitomizes hubris; absent any "profound sense of judicial modesty and caution", beguiled by the "siren calls of the 1960s" it seizes control of "basic state functions".

Isn't this essay the product of conservative's fantasy ideology. Federalists' fantasy ideology has the feel of a greek myth or Arthurian legend, after all. The Warren Court Era is said to represent the present, corrupted state of society. Free roaming evil Judges have taken control over vast swathes of society - especially (and paradigmatically) prisons and schools. Those same Judges are making up new constitutional rights to serve, not constitutional values, but new social movements like racial and gender rights. As a result, our society has become atomized.
But men of courage, armed against society's temptations, can turn back the tide to a time when mediating institutions were powerful, men were men, and states were states.

Progressives haven't yet caught onto the import of this fantasy. Although they doubt federalists' motives, they still believe that the conservative activist's ideology is susceptible to reason. Such progressives resort to a sort of constitutional gotchya-ism, attempting to find examples of hypocracy by notable conservative justices. It is as if progressives hope that if they point out one more example where the myth doesn't live up to reality, conservatives will abandon the myth and join the good guys.

Is the better solution to conservative mythmaking that of the Senate democrats? Realizing that conservative judicial activists believe themselves to be self-appointed crusaders against today's society, armoured in righteousness, is the only rational solution to scorch the earth before us in retreat, refusing to compromise or surrender? Should progressives attack conservatives not for their reasons but for their results? That is, should we sacrifice the rule of law to fend of a law of rules?

I don't know. But I do know that my reaction to Wilkinson's essay is that it looked very little like scholarship and very much like the great modern myth born in a galaxy far, far way. But, to admire the Senate Democrats in their intransigence is easy - to quote a second great movie, "uncompromising men are easy to admire".

Friday, April 11, 2003

PLAINSMAN: I should stress that I too am interested in whether Judge Wilkinson's views are persuasive. One reason my post takes Scalia-style textualism as an implied norm against which to assess Judge Wilkinson's jurisprudence is simply that his textualism is the most prominent constitutional paradigm today. Which does not mean that a majority of judges and academics espouse it; I doubt that's true. But if you do think it's necessary or desirable to have a theory of judging, then Scalia's is the most articulate and fully-argued theory on the present scene. So my discussion naturally tends to assume it. It's like the role of Rawls in English-speaking political philosophy.

Anyway, let me revert to the point I made about whether the Constitution as a whole has a "gist" that supervenes on the individual provisions of the text.

We have to acknowledge that reasoning of this kind can be valid. For example, the argument by which the Court derived the "non-infinity principle" in Lopez involved a structural inference from the whole of Article I: the enumeration of powers implies something not enumerated. I think that's a tough argument to deny. Similarly, I've mused on this blog before that the fact that the Constitution's free speech and free exercise guarantees were ultimately placed in the same amendment may throw light on how we ought to understand conduct exemptions under the Free Exercise Clause. In doing that, I'm effectively stating that the First Amendment has a "gist" that we can grasp.

So the question is just how far one should carry this kind of argument. How far can the tether (to the text) stretch? Reading Judge Wilkinson's essay, you gather that he tends to conceive the constitution in more architectural terms than, e.g., Scalia does (but cf. Printz). He would be willing to let the tether stretch further.

I will respond to your insightful and thoughtful post later today or over the weekend, after I have the chance to read the article in question. I find your description intriguing. I am, I'd say, less doctrinaire than you, so maybe the piece will be convincing as well as "suggestive".

In the meantime, go here and get the WHO's roundup on the last month of the SARS epidemic. Sobering reading, in these days of empty braggadocio and triumphalism.

Thursday, April 10, 2003

Judge Wilkinson Speaks His Piece

PLAINSMAN: Here, some thoughts on Judge J. Harvie Wilkinson's suggestive recent article "Is There A Distinctive Conservative Jurisprudence?", in the Fall 2002 University of Colorado Law Review.

Judge Wilkinson, a gregariously reflective member of the Fourth Circuit, takes as his subject recent accusations that the Rehnquist Court has become an "activist court" that uses improper activist decisions to push the law in a conservative direction, much as the "activist" Warren Court of an earlier generation pushed it in a liberal direction. His discussion acknowledges that judicial conservatism today carries different connotations than the same term did in the generation of, e.g., Felix Frankfurter or the second Justice Harlan.

"Conservative jurisprudence has undergone a change," he writes. "It is charged that conservative jurists no longer hold the high ground in the jurisprudential debate and that we have, in fact, become indistinguishable from those whom we were once wont to criticize. ... Respected critics of the Rehnquist Court have delighted in calling it 'activist', as if the use of that one word somehow settled the issue of the soundness of its decisions." (I shall say a bit more later about Judge Wilkinson's handling of the volatile term "activism.")

He undertakes the defense of the Rehnquist Court's jurisprudence, with a special emphasis on its federalism decisions. He argues is that "what is happening now" can be "differentiated" from "what took place in the [Lochner] and Warren eras." On the one hand, the current Court's path is sharply distinct from Lochner because the Progressive Era Court's "activism immobilized federal and state government alike" by invoking the Due Process Clause to hold certain forms of democratic regulation absolutely off limits. By contrast, "states after Lopez were free to criminalize the act of bringing a firearm within a school zone. Lopez, in other words, restructured democratic responsibilities. Lochner simply shut the democratic process down."

On the other hand, the current Court's path is also different from the activism of the Warren era because -- to boil down his point somewhat -- it is textually and structurally grounded. Judge Wilkinson here turns, for the first time, to a motif that I should have begun the discussion with, were I writing an essay distinguishing the Rehnquist Court's decisions from the adventures of different eras: textualism. He canvasses the various statutes invalidated by the current Court in decisions such as Lopez, Morrison, Printz, New York, Kimel, Garrett, and others, and concludes (with a substantial, though not complete warrant, in my view) that "the decisions of the present Court ... appear to reflect less of a fidelity to an agenda or a desired outcome than they do to the textual and structural dictates of the Constitution." He adds that "[t]o contend the Supreme Court has no role as a textual interpreter or as a structural referee is almost to say that Marbury v. Madison doesn't exist."

Skipping forward a bit, Judge Wilkinson comes to his next interesting point. There is a unifying "thread in the Rehnquist Court's jurisprudence that the critics of the Court have quite missed." It is the constitutional recognition of the importance of the various foci of American civic life that fall between the national government, on one hand, and individual rights-bearers, on the other. This sphere encompasses the "mediating institutions" -- private groups, churches, families, schools, and state and local governments -- what Edmund Burke, whom Judge Wilkinson interestingly does not quote in his piece, calls the "little platoons" of society that anchor our patriotism and affection. Judge Wilkinson does cite Alexis de Tocqueville, to my mind one of the other heroes of modern political thought.

Indeed, in this portion of his essay Judge Wilkinson is brushing up against basic conservative and left-wing visions of civil society. The leaves of his piece rustle with echoes of Burke and Tocqueville, on the one hand, and Rousseau on the other. The fatal fault of the Warren and Burger Courts' selective constitutional enforcement, contends Judge Wilkinson, lay in slighting the mediating institutions. "The constitutional vision of the Warren and Burger Courts was a binary one. One one level, there was a commitment to a sweeping and virtually limitless national power. On the second, there was an equally firm commitment to the recognition of new individual rights." Such a constitutional vision both "nationalized and atomized" our common life. The echoes of Rousseau here are palpable and doubtless conscious on Judge Wilkinson's part.

By contrast, he argues, the Rehnquist Court has revived the aspects of the First Amendment, the Commerce Clause, the Tenth Amendment, and even the Fourteenth Amendment that nurture and protect an intermediate sphere of civic life. He cites chapter and verse: U.S. v. Lopez and Printz v. U.S. (state governments), Boy Scouts v. Dale and Good News Club v. Milford Central School (private organizations), Troxel v. Granville (families). Judge Wilkinson acknowledges that, like any other vector of constitutional enforcement, this solicitousness for mediating institutions could be carried too far, and he indicates that he would draw back before reaching that point. The Civil Rights Acts, the basic doctrine of 14th Amendment incorporation against the states, should not be drawn into question by this restorative movement, he submits.

"Historically," he suggests, "individualism and communtarianism have worked hand-in-glove," and "the commitment to mediative institutions and to the intermediate layers of American life has a strong constitutional grounding." It is plain that Judge Wilkinson is drawing here from a Tocquevillean strain of thought. For what it's worth, this is the strain that, once I came to grasp it as a young adult, was responsible for my conversion to a more or less conservative philosophy.

His tone, in this essay and in his judicial opinions, is irenic, yet his thoughts are pitched very broadly. The interesting recent profile of him in the NY Times accentuates both of these traits. Considered simply as a judicial personality, it is hard to deny that he contrasts favorably with Justice Scalia. Readers know I esteem Justice Scalia in many respects, but he has proven somewhat lacking in the ability to build consensus and collegiality on the Court. In the present brutal climate of judicial confirmations in the Senate, I think we must also admire Judge Wilkinson's good faith in offering us such a substantive glimpse into his judicial philosophy, at a time when he must know he is under close scrutiny as a possible Supreme Court nominee. It seems to me that we should respect potential nominees who speak out thus frankly, not skewer them. Their openness benefits the entire process.

With that said, there is nothing wrong with respectful critique. Quite the contrary. Let me close by sounding a couple of critical notes about Judge Wilkinson's essay.

First of all, I think it is a mistake for him to cede the term "activism" to critics of the Court's federalism jurisprudence. Near the end of his essay he writes: "Is there a modern conservative activism? The answer to this question has to be yes." Now in context, it is clear what he means. He has previously pointed out what he views as the textual and structural warrants for the current Court's decisions. In this respect he is trying to gloss "judicial activism" as something that is not always improper. In his mouth "activism" simply means a court will step in to invalidate genuinely unconstitutional legislation; warranted, not unwarranted action. This is, indeed, the critical question: how faithful is the Court, not how active it is. It can fairly be argued that, if you have an activist Congress that (understandably emboldened by sixty years of judicial nonfeasance) enacts statutes that exceed its enumerated powers, what is truly "activist" (in the pejorative sense) is to roll over and let them slide; it is not "activist" to strike them down.

However, I think the term "activism" has acquired such a firmly negative meaning in current parlance that Judge Wilkinson's attempt to rehabilitate it will not succeed. It is more likely that opponents will use his concession that the current Court is "activist" in unfair ways. I hope we will not see that happen.

My second criticism, or at least observation, is that Judge Wilkinson's essay does not stress the primacy of orginalism and textualism quite as strongly as one might expect. He acknowledges it, but one gets the sense that his thinking about the Constitution is fundamentally broad and structual, not clause-bound. He thinks the Constitution has a gist, and that he has grasped it. I do not want to overstate my qualm here. But the judge's authority, it seems to me, derives ultimately from the existence of a text and tradition which are in some way objective -- which it is the judge's business to apply and interpret. This involves a concept of fidelity to text that Judge Wilkinson affirms, but does not trumpet as clearly as he might. I guess you could say I'd like to hear more of his views about what Eve Tushnet, borrowing an abbreviation from computer tech support circles, has termed the "RTFM" school of jurisprudence.

So there you have it. These reactions are speculative and I'll doubtless revisit them later. But for now I'd like to "pass the mic to D." I'm off to bed.

* * *
Foreword re: The Cultural Products of Old Europe

PLAINSMAN: Let me be frank. It was a long day at work. Who, then, is to say that you can't blog effectively after a couple of glasses of Calvados at the local boite? Friend, not I.

This is controversial ground. I appreciate the position of those who choose a boycott of French import products. But for now I take the view of NRO's former writer Rod Dreher. The Chiraciste double dealing notwithstanding, there remains an idiosyncratic conservatism at the heart of French culture that finds a vital expression in that difficult people's splendid food and wine. And while less open, less attractive than the Anglo-American conservative spirit, it nonetheless merits respect. It is hard to sunder one's bonds with these fine artifacts of Western civilization.

It is only partially a rationalization to say that French wines ought not to be condemned in the same breath as French U.N. shenanagins; to say that, au contraire, they reflect the better self of France.

Oh yes, you wanted to hear about Judge Wilkinson. Just a moment.

* * *

On Deck

PLAINSMAN: Litigation is commonly described as a "counter-cyclical" specialty: even when the market's shaky, work keeps going strong. I know little about law firm economics, but my last five or six days strike me as provocative empirical evidence for this claim.

Tonight, however, I hope to post some thoughts on an interesting recent article on jurisprudence by Judge Wilkinson of the Fourth Circuit, often described as a possible Bush nominee to the Supreme Court. For those of you with access to a law library (or free Westlaw), the cite is: J. Harvie Wilkinson III, "Is There A Distinctive Conservative Jurisprudence?", 73 U. COLO. L. REV. 1383 (2002).

See you in a bit.

Tuesday, April 08, 2003


First, I like your point about Harvard's gun panel. In defense of the law school, I suppose you could read the press release as meaning "Various Professors will debate whether personal gun ownership is a right protected by the Constitution". Harvard's problem may be its use of the passive voice, and not, as some might think, its secret desire to declare gun ownership unconstitutional.

Second, today's SARS statistics are better than yesterday's, the NYT's panicky article notwithstanding. There were only 70 new cases from yesterday (a 2.8 percent growth), as the overall trend continues to be linear and not exponential. One worrisome note in the statistics: the death rate is creeping up. As I wrote yesterday, we'll know by the end of the week whether the new control measures are having a meaningful and lasting effect on the course of the infection.
I'll bet that the final mortality figure will be closer to China's 5% than the current 3.5% worldwide rate. Don't miss WHO's new map of infection worldwide. UPDATE: the NYT is now reporting that Hong Kong's government is advising its citizens that SARS is may become a chronic and endemic disease, potentially requiring citizens to adopt permanent lifestyle changes (e.g. wearing facemasks in public places). Wow.

Third, I see that Kaimi Wenger of Seeking for Righteousness has caught on to one of the reasons why I call the Supreme Court the "Nine." Another reason may be found in this archived post (which I hope people can now access).

Monday, April 07, 2003

Misleading Caption

PLAINSMAN: Since I have nothing to contribute to D.'s brow-tightening posts on SARS, except to keep reading them, I thought I'd point out a solecism in this press release for an interesting legal event to be held tomorrow afternoon:

"Constitutionality of Gun Ownership To Be Debated at Harvard Law School"

The title must be inaccurate. There is no debate about the "constitutionality of gun ownership." It is, of course, constitutional to own guns anywhere in America, because the Constitution says nothing to the contrary. Even in jurisdictions that have enacted statutes banning or restricting gun ownership, it's not unconstitutional to pack heat -- just contrary to statute.

The interesting legal question is whether prohibitions on gun ownership are constitutional. The Second Amendment does say something (it's not so clear what) about that. I'm sure that's what the panel at Harvard is actually debating. Hence, the press release should read "Constitutionality of Gun Bans To Be Debated at Harvard Law School."

Anyway, the event boasts an interesting lineup. They've got Alan Dershowitz, Eugene Volokh, and someone from the Brady Center. Perhaps Professor Volokh will tell us about the proceedings on his blog tomorrow night.

* * *

Today's SARS Update

I bet you thought that when P returned, I'd get off the SARS kick. No way. It remains as concerning as ever, and I refuse to let this become a part of the blog-news-cycle. I'm sticking with the coverage until I see convincing evidence that we're not at the early stages of a global pandemic.

Today's news is bad. The WHO reports that infection control measures, purportedly holding the line only last week, appear to have failed in Canada and Vietnam, and that the illness is spreading again in those countries. Hong Kong and China remain the disease's epicenters, and the rate of new infection is increasing in hong kong. Sub Judice's running spreadsheet tells me that the new daily infection rate tripled over the weekend (from 3 to 9 percent), and that, more worrisome, the death rate is starting to inch up again. None of these are good signs.

We'll know several important pieces of information by the end of the week: (1) whether a sewage line really caused the puzzling outbreak in the Amoy Gardens; (2) can scientists come up with a reliable diagnostic test; and (3) will the Chinese continue cooperating when their economy starts to suffer from the bad news.

A must read article on these subjects from today's NYT.

Just a quick post. I read Instapundit once in a while, because he breaks a great deal of blog-relevant news. But all too often, his posts ... well ... they cross that fine line between jingoism and hyperventilating, chest-thumping, puffery. Case in point, his comments today on what will happen to Arab journalists who don't back the United States' view of the Iraqi conflict: "we'll remember who you were pulling for, and file it for future reference." What does this mean? Is he suggesting that we punish foreign journalists for their speech that opposes his own view of current events? If so, what kind of punishment?
The Court ducks on McFarland; Can it Duck on McCoy?

PLAINSMAN: Mon ami, you just beat me to posting on the cert denial in McFarland v. U.S. (thanks, Marty).

A few quick points in light of your quick post, numbered because my intellectual sloth prevents a more imaginative organizational device:

1. McFarland leaves Hobbs Act prosecutions very uncertain in the Fifth Circuit. Wonder what the soon-to-be-confirmed Fifth Circuit nominee Judge Edward Prado thinks about the Commerce Clause?

2. If Rehnquist is retiring at the end of this Term, which is the conventional wisdom, he wouldn't be able to get McFarland "under his belt" even if cert was granted.

3. Remember, five years passed between Lopez and Morrison.

4. It will be harder for the Court to duck the Commerce Clause question in U.S. v. McCoy (9th Cir. 2003) (Judge Reinhardt child porn decision previously discussed in this blog), since the statute in that case was held invalid as applied. I don't think the Court will get a crack at a cert petition in McCoy until next Term. Hence a new Justice or Chief Justice, whoever he or she is, will have the deciding vote on the merits.

5. I dare say if the Court eventually takes McCoy and affirms, we will no longer be in a position to question the "substance" in the Commerce Clause restoration. For it is a restoration, not a "revolution," except in the almost-lost original sense of that word -- a coming back around to the origins. In 17th-century English terms, I submit that Wickard is Oliver Cromwell; Lopez and Morrison are William and Mary.

6. I have a few ideas for posts to make in the next few days. One is to try to flesh out my tossed-off comment several posts ago that "Eisenstadt v. Baird plus the law of rules equals a reversal in Lawrence v. Texas [the pending EP/DP sodomy-statute case]." Another is to share some jurisprudential-type thoughts about the possible Bush nominees for Chief Justice Rehnquist's seat on the Supreme Court. In recent weeks SCOTUSBlog has featured a series of useful intelligence reports on the leading contenders, compiled by a group of Yale Law students. If memory serves, they've examined:

- J. Harvie Wilkinson (4th Cir.) (official Plainsman endorsee);
- Al Gonzales (Tex. Sup. Ct. / WH Counsel);
- Janice Rogers Brown (Cal. Sup. Ct.);
- and I think I'm forgetting one. Was it Emilio Garza? Were I SCOTUSBlog I might have added Samuel Alito.

7. I also have a few last comments I could make about the U. Michigan AA debate, but I'm content to let the topic go.

8. Led Zeppelin II. Whoa. What an album! I used to look down on Zep fans in high school. No more. I know Plant/Page were boors and not great lyricists, but honestly, how many more indelible, insinuating rock riffs are there than the ominous strut that opens "Whole Lotta Love"? The scales fall from my eyes.

* * *

As Marty over at SCOTUSBlog posts, the Nine declined to take cert. in McFarland, leaving the Fifth Circuit evenly divided, again, on the Hobbs Act's constitutionality (thus upholding the district court's finding that it is constitutional). Does the Chief Justice want to get a meaningful, practically significant, commerce clause case under his belt before retiring? Apparently not. All the style of a revolution, none of the substance.

Sunday, April 06, 2003

Discrimination Wrap-Up

John Rosenberg at Discriminations and I have wrapped up our recent round of discussions. In John's last post, he agreed that his color-blind principle is novel and ahistorical. He also agreed that Trent Lott's analogybetween affirmative action and Bob Jones University's racist dating policy (which initiated this exchange) has limited relevance unless and until the Supreme Court accepts the colorblind principle as a statement of constitutional law. I think it unlikely we'll ever get there, on the theory that a charitable foundation run by American's richest man is unlikely to ever be found uncharitable, on any theory. As the DOJ Antitrust has learned, always bet on Gates to win, place, or show.

I agree with John that the discussion was productive and civil. I disagree with him that past racial injustice requires us (through the state) to ignore race. The opposite should be, and is, true.

Now, back to discussion of appellate and district court litigation, as well as occasionally hysterical venting about SARS. "P", are you out there?

Friday, April 04, 2003


SARS Update

The epidemic's new infection rate increased slightly today from yesterday; the five day average is now a nine percent daily increase in reported cases. The latest total is 2353. Interesting news from Hong Kong: the residents of Amoy Gardens, the hard hit and mysterious epicenter of an outbreak of seemingly unique infections, appear to have recently suffered a sewage line break. This possibility was first blogged here last week. Additionally, the Chinese now report new cases of the disease, despite their earlier claims that they have the situation well under control.

Sub Judice v. Discrimination(s)

Rosenberg responds in our continuing dialogue. Discrimination's archives are working; ours are not. His previous posts in our exchange are here, here and here.

I think we are starting to get clarity on some issues. Rosenberg thinks that the Bob Jones tax case would have renewed relevant in a post-affirmative action world. The argument, as I understand it, goes like this. If the Supreme Court were to accept Rosenberg's proposed "non-discrimination" principle in Grutter and subsequent cases, then it would follow that institutions that give money only to minorities could not be charitable under Bob Jones. I can't quite tell if Rosenberg thinks this is a good thing, or is a bad thing (because he criticizes Bob Jones elsewhere, but says in his latest post that "we argue is that the state and its agents cannot give money exclusively to minorities"). My point has been to say: (1) in Bob Jones, the Court was presented (by Trent Lott) with the argument that affirmative action was like the racially discriminitory policies at issue; and (2) the Court implicitly rejected that argument by ruling for the IRS. Bob Jones is not yet relevant to the Gates Foundation, but the reason is not (as Rosenberg thinks I think) because "many good people favor [affirmative action] and good people do not favor discrimination". The reason is that the Bob Jones court implicitly rejected the link that Rosenberg now relies on. Now, if the Court were to accept the principle that affirmative action is not supported by a compelling state interest, then the Gates Foundation might be in trouble.

Rosenberg then makes the lovely point that "the proponents of 'diversity' [have] trespassed on the colorblind principle for so long that they have already taken adverse possession of it." Lovely in its imagery, false as a statement of history. When in American history has the colorblind principle meant (in constitutional law or in common parlance) what he thinks it means? Hasn't it meant, variously: (1) equality for white citizens; (2) affirmative action (reconstruction congress era); (3) Jim Crow; (4) seperate but equal; (5) affirmative action redux; and (6) the diversity framework. I just don't get it the appeal of the call for a return to some mythical racially pure past. [Of course, I'm not accusing Rosenberg of hoping for racial purity in an offensive way, I mean constitutional racial purity].

Rosenberg and "P" (who is still briefing busily) both share a fatal flair for use of the phrase and idea of "elite" opinion (which they often link to the New York Times, Liberal East or West Coast Universities, etc) as something to set their arguments and teeth against. I'd like to see some data on this. Do the rich (i.e. those with incomes of more than $5,000,000) disproportionately support affirmative action (in polls using moderately fair questioning techniques)? If not, are "elites" defined as those with higher educations? Those who live on the coasts? Those who vote democrat? In my opinion, labeling people you disagree with "elites" (sometime accompianied by qualifies like "liberal" "effete" "naive" "paternalist") is just a way of demagoging an already explosive issue. I might as well call everyone I disagree with on this issue a "southerner" or a believer in "southern history" in the hope that my readers would associate my disputants with their stereotypical (though now outmoded and wrong) ideas of southerners as racists.

Thursday, April 03, 2003


Here are two SARS charts of interest. The first plots the SARS epidemic over time (data source is the WHO). As you can see, the trend is pretty linear.

This graph plots daily percent increase (where 1.0 = 0 percent increase, and 1.5 represents a 50 percent increase). The two sharp downward drops are bugs representing missing days from the WHO database. As you will see, however, the infection rate appears to be either steady or on a mild (though sporadic) decline.


I've been thinking a great deal about mental and physical plagues. The SARS epidemic, of course, continues to be of concern. I'm happy to report, however, that the latest data is encouraging. There were few new cases reported yesterday, and the WHO reports that Hong Kong's incredibly tight control measures appear to be slowing SARS' spread through the population. The daily growth rate is back down in the single digits. And, best of all, Hong Kong reports that "89 SARS patients have been discharged from hospitals."

But I've also been thinking about heuristics, availability cascades, and group fantasies. I urge you to read this article, and let me know if you want to blog about it a bit. There is something in there that might be applicable to the Affirmative Action debate. Is what you are saying that "elites" (ugg, hate that term) have a fantasy ideology about diversity that is convincing them to actual people as objects in their grand scheme of a utopian society? If so, is the suggestion that elites don't actually want a better society, they want diversity's theatrical effect?

John Rosenberg responds again. to our recent discussion. He thinks I'm temperate. John, when you are surrounded by litigators all day, you learn to be careful what you say.

First, Rosenberg fights my hypothetical by arguing that in Grutter +1 you will not see a sea of white faces. But my point was to assume that you live in a state (*not* necessarily California) where the Texas 10% plan can not work because schools are not de facto segregated by race and class. The question is, *if* you admitted an entering class that contained no african americans or latinos, and you looked around at that class on the first day of classes, *wouldn't* you feel that something was missing? That is, isn't racial diversity at a University intuitively appealing? And, I argued, if you don't think so, you would be in the distinct minority. Rosenberg apparently disagrees. Would be perfectly comfortable in a university setting that contained no people of color, on the theory that there is no "empirical proof" that diversity is a net benefit?

I also think that Rosenberg gets it wrong in his Bob Jones discussion. He argues:

"It still seems to me that anyone who accepts the principle underlying the Bob Jones result should have a hard time arguing that Michigan's academic freedom trumps its obligation to refrain from racial discrimination. Or to make an even closer analogy: if a firm majority of the Supreme Court ever again comes to view the "without regard" principle barring racial discrimination as at the core of the 14th Amendment and, on that basis, upheld revoking the tax exemption of the Bill Gates Foundation because its race exclusive scholarships cannot be charitable since they "violate public policy," no objection should be heard from principled defenders of the Bob Jones result."

Let's analyze this more closely. Isn't the implicit principle of Bob Jones, in light of Lott's rejected argument, that affirmative action is not like racial discimination? Let us assume that "a firm majority" of the Court "ever again comes to view" the 14th Amendment as requiring a color blind admissions policy (and when was he referring to?). Why does it follow "principled defenders of the Bob Jones result" would have to agree that no institution that gives money to minorities can be charitable. Principled defenders of the Bob Jones result think that the Court correctly decided that the IRS did not exceed its administrative powers by deciding that racial discimination makes one ineligible for a tax break. Full stop. Implicitly, the Court rejected the argument that a policy against interracial dating was, like affirmative action, a possible public good. If the Court (a "firm majority" is unlikely) were to come out differently, principled defenders of Bob Jones would think that Grutter undermined the deep rationale of Bob Jones. Just because a "firm majority" of the Nine might link affirmative action and real racial discrimination doesn't make it true.

Now, as a matter of law, I agree with Rosenberg that the Bill Gates Foundation might have problems under Bob Jones + "a firm majority in Grutter", but those problems will be of the "firm majority's" makings, not the Bob Jones Court.

Wednesday, April 02, 2003


Today's SARS Update

The story is starting to get major traction, as the WHO recommends that people not travel to Hong Kong or Guangdong Province in China. Why? Because the Hong Kong "variant" of this epidemic is not under control, and China has only today begun to show signs of cooperating with the investigation. Today's case report: 2223 cases, 78 deaths. I need to find some graphs on this, but it seems that the pace of new infection is not increasing exponentially. My rough graph on my desk suggests, in fact, that infection rate may be going down, even as the number of cases (and the number of new cases per day) increase. On the other hand, the number of deaths has nearly doubled in the last four days.

Analysis of this moving target story is difficult. There was a big spike of cases in recent days as China reported in, and there will be a bigger spike when they fully become integrated into the health alert system. The WHO seems to believe that its mostly under control, except in Hong Kong, but they are clearly in panic control mode. . They suggested something I blogged yesterday: the Hong Kong varient may be spreading through the sewage system. Of course, this hasn't alleviated the growing tensions about this disease, as we can see from this story.


I actually ran the numbers on excell. The curve is pretty linear with the exception of two days: March 10-11; and yesterday-today. In both cases, as far as I can tell, WHO got an influx of new data from China. I also ran the percentages. In the first five days of reporting, the average daily increase in reported cases was 18 percent. In the next five days, the average was 42 percent. In the final five days, the average was 10 percent. Garbage in, garbage out, but still interesting.


The death rate hasn't moved much in the last 10 days, hovering between .034 and .037: and today's cumulative death rate stands at .035. This is clearly very good news, because it is good evidence that the people who got sick first are probably getting better.
[test. ignore, please.]
More on Grutter

I agree with you that there is a disconnect between what universities say they are out to accomplish ("diverse perspectives") and what some of them may actually hope to accomplish by preferences (you call it racial engineering, but I think that is just tricky orwellian rhetoric. It would be fairer to say "remedying past discrimination or present poverty").

Look, I understand why there is opposition to race-based admissions programs. [Note: you really ought to stop throwing out loaded words like elites. Affirmative action is supported by large swathes of the population (although "quotas" are not, which tells you a great deal about framing effects), and it can only hurt your ability to participate in public discussions on this issue to continue to imagine this as a conspiracy launched and nutured by a few New York City Upper West Side liberals.]. There is also opposition to progressive tax rates, and to cost-benefit analysis. In all three situations, ordinary intuitions (deontological intuitions) run up against what some would consider to be welfare maximizing utilitarian government policies. (I am not one of those that supports cost-benefit analysis in many situations, as you know). Ultimately, there are both moral and empircal questions necessary to the resolution of whether such utilitarianism is good or bad for the country. And shouldn't such questions be answered many times at many ballot boxes, rather than once, by unelected judges? That is, unless you are convinced of the constitutional necessity of color-blindness at every level of society (through state action and Title VI), why not let the Reagan revolution continue to take its course? Campaign for your state to follow the Texas model. If it doesn't, move. Isn't this *just* what you want to happen in the abortion context?

I don't buy your socially destructive argument. I agree that AA can causing poisoning of relations between the races. I also agree its been really, really bad for progressive politics, and the Democratic party (seperate thoughts, to be sure). Finally, I agree that it has a disproportionate impact on middle class whites (and I think the ethnic type you should be thinking of is Jews). But the flip side is what you ought to be worried about: what happens if you live in a educationally integrated state (a state integrated, by, say, vouchered private schools), and the 10% solution will not produce any appreciable yield of minority candidates. In year Grutter+1, when you look around your state's campuses and see a sea of all white faces, don't you think something has been lost? If not, don't you think reasonable people would disagree with you?

John Rosenberg of the Discriminations blog has nice things to say about our exchange. You are, apparently, temperate, thoughtful and persuasive. I'm two of the three. We've discussed before the phenomena of flattery and blog linkage (flattery = more linkage; criticism = less linkage). I'm going to test this theory by suggesting that Rosenberg is wrong, and that his argument is thoughtful, but intemperate and unpersuasive.

Rosenberg concludes his support of you, and attack on affirmative action advocates, by discussing Trent Lott's comments in a brief in the Bob Jones tax case. Lott (or his staffers) wrote: "If racial discrimination in the interest of diversity does not violate public policy, then surely discrimination in the practice of religion is no violation." Rosenberg responds: "I'm sure that contemporary defenders of preferences based on race will be happy to learn that they are substantially echoing the arguments of the young Trent Lott". But Rosenberg has previously said that it is "hard to know exactly what [Lott's] point was". He's also provided the history of the Bob Jones case, and explained that what it was actually about was whether the IRS's charitable exemption should apply to an institution alleged to practice racial discrimination. The issue was whether the IRS could define public benefit so as to exclude racial discrimination (or the version practiced by BJU). Lott, as an advocate, attempted to link BJU's practices to a real public good. But the Court, in ruling against BJU, implicitly or explicitly rejected Lott's comparison. It doesn't bother me that he sought to link affirmative action with his client, because: (1) lawyers search for analogies all the time; (2) this analogy was rejected; and (3) I'm not a Mississippi voter. But it does bother me that Rosenberg has dredged up this quote to tar affirmative action advocates with Lott's failed analogy. It is just as if I pulled out some choice quotes of Strom, arguing that segregation would be good for both races, and stated that Strom's views were his (or yours), just because the consequences of a color blind constitution that he (and you?) may endorse may be what Strom explicitly campaigned for: all white universities.

Tuesday, April 01, 2003

PLAINSMAN: (I know, I said I was gone, but I have to jump in. I'm taking a break at home. Good post. Also, man, are our archives messed up. We need format reform.)

I hope I made clear that the legal reasons I think Barbara Grutter ought to win and the equitable reasons why Michigan Law should change its policies are not the same. If I didn't think the legal grounds were powerful I wouldn't bother to contribute the other points.

That said, I do acknowledge that one of my points -- the point about the actual one-sidedness of the state universities' claimed pursuit of "diverse perspectives" -- straddles law and policy, or at least law and fact. The universities say that what they are doing today, under the aegis of the Powell opinion, embodies a state interest that (whatever it is, precisely) is "compelling" for purposes of the Fourteenth Amendment. But that legal claim is undermined by the facts of how the universities' admissions decisions actually shake out in practice. We can see that, while the admissions officers' intentions are not malicious, they also are not what was claimed.

When they deviate from the usual emphasis on LSAT and grades, the admissions officers are not principally doing so to create an environment of wide-open intellectual exchange. Rather, they're doing racial engineering. So there may indeed be a kind of First Amendment shield that protects universities from certain kinds of legal scrutiny in the pursuit of their intellectual mission (I am ill positioned to deny that there is, as an admirer of the First Amendment holding in Boy Scouts v. Dale). But that shield cannot be invoked to justify policies like Michigan Law's. The facts are relevant to that conclusion.

Anyway, back to the purpose of my equitable arguments. Our elites tend to be genuinely puzzled by the strength of the opposition to race-based admissions policies. The policies strike them as obviously forward-looking and decent. "Who could object to that? Where's the harm?"

Well, there is harm. (Not just to "whites" from the "heartland," it bears mentioning, but to Vietnamese immigrant families, South Boston Irish, and Syrian-Americans in Detroit.) By pointing this out, one may help one's elite interlocutors reach a frame of mind where a standard of honest-to-goodness state colorblindness (in nonremedial contexts) makes sense. It is as a principle that a moral people might reasonably enact into law. That is the right frame of mind in which to approach the legal task of interpreting the Fourteenth Amendment, the Court's case law, and the statutes.

Finally, regardless of which way Sandr** -- uh, I mean, the Supreme Court -- chooses to bend on the legal issues in Grutter, I think we must respectfully disagree about the implications for the future. Part of my objection to the implemenation of contemporary race-preference programs is exactly the fear that they are "divisive in the short term" and will prove "socially destructive in the long term."

It's one thing to admit Vernon Jordan's son (or the son of a diplomat from Central America) to Michigan Law over a coal miner's daughter, after gauging both by roughly the same set of criteria. Hard knocks occur in life. You don't get a job you think you deserve; you move on. But what Michigan Law does, in effect, is to give a very large, purely gratuitous boost to the corporate lawyer's son and the diplomat's son, and then admit them over her.

We live in a country where the most far-reaching social upheavals (many of them hugely positive) have been executed under the authority of a Constitutional norm against racial discrimination. The influence of this principle is all around us; it is part of contemporary American common sense. In these circumstances, it is terribly harsh to tell the coal miner's daughter that this omnipresent legal principle has no powerto protect her from racial discrimination in school admissions, as long as the deans are genteel enough to avoid using really blatant quotas to deny her admission. And that is effectively what the Supreme Court will be saying to her if it affirms Grutter and Gratz, or it if reverses only the explicit quota in Gratz.

In today's oral argument, even Justice Stevens seemed disturbed by the fact that, unlike the remedial justification for race-conscious policies, the diversity justification a la Michigan ("critical mass," etc.) has a potentially infinite future, and can be bent into all sorts of shapes.

Socially destructive.

* * *
The Discriminations blog has some kind words to say about you, P, in response to your previous post. I agree. What I particularly like is your comment that "university officials believe their current admissions practices are both legally defensible and morally sound". This contrasts nicely to much of the rhetoric one hears from the anti-preferences camp.

Of course, on the merits you are dead wrong, and your position, if adopted, would be socially divisive in the short term and socially destructive in the long term. Our archives are on the fritz again (Alice: we're working on that whole she-bang), or I'd refer you to our earlier discusion that lays out my views. Suffice it to say that I find your principal argument against affirmative action - namely that it harms lower middle class whites from the heartland - to be both politically and pragmatically forceful, but constitutionally unpersuasive.

The oral argument transcripts of the college, and law school, cases should permit inquiring readers to form their own opinions about what will happen. One surprise: S.G. Olson took it on the chin, which teaches you that amicus briefs really can be important. Another surprise: the standing issue that I had previously, sort of, identified popped up right at the beginning of the undergraduate admissions argument. (Damn these archive issues!). Not a surprise: Linda Greenhouse reads the tea leaves so as to reassure the NYT's readers that the sky is not falling.

But onto the real news of the day. In today's WHO SARS press briefing, the doctors in charge tried mightly to calm a rising tide of panic. Key points: (1) they now identify under control epidemics(Vietnam, Singapore, Toronto) and out of control epidemics (Hong Kong); (2) they have no idea why the Hong Kong varient of SARS is spreading outside of sustained person to person contact; (3) there were about 150 new cases, and several deaths, confirmed yesterday; (4) China is performing a new survey of its affected population, which should produce results in a manner of days. Additionally, in SARS news, a plane was quarantined on arrival in San Jose from Tokyo after several passengers turned up sick. It is unclear whether the passengers were affected with SARS (there is no viral test yet). This is a precursor of what will happen if we have a 1000 cases on American soil, as they have in hong kong.