Friday, June 27, 2003

Where Are We?

PLAINSMAN: I refer to this blog's principals, not the United States, though you might well be asking yourself the latter question today as well.

What can I say? The biggest law week in recent memory has hit Sub Judice at a terrible time. D. is out of town -- way out of town -- but will be back in a couple of days, I think.

I'm in a bad work crunch. Vast snowdrifts of documents enclose me inexorably from all sides. I have no time to post about Grutter and Lawrence in the way they deserve. Honestly, I don't think I'll be posting on them until Tuesday or so.

See you in a few days. October Term 2002 is over! I'm not sorry to see it go, but hopefully we can send it off with some decent posts.

* * *

Sunday, June 22, 2003

Nervous Anticipation

PLAINSMAN: In a little more than twelve hours the Supreme Court will hand down opinions in what will probably be the final week of the October 2002 Term. The Court can hand down more opinions on Thursday, and it almost certainly will. If things really go down to the wire, it may even stretch the last opinions out until next Monday, June 30. So I won't predict whether we'll get Grutter v. Bollinger and/or Lawrence v. Texas tomorrow.

But we might. It's gonna be hard to concentrate at work tomorrow morning.

* * *
Maybe It Wasn't Colorable

PLAINSMAN: The motion to reopen Roe got slapped down more or less instantly, with the district judge citing the usual Rule 60(b) time limit. I still haven't seen any of the motion papers, so I can't conclude whether the case for going outside the time limit (and hence, the motion) was frivolous or not. But I'm chastened in my initial view of all this.

* * *

Saturday, June 21, 2003

Whatsisname, J., delivered the opinion of the Court

PLAINSMAN: Today Howard Bashman links to the results of a FindLaw survey that answers a question I've long wondered about: how many Americans know the names of the Supreme Court Justices? Turns out almost two-thirds of those polled (65%) can't name any current Justices. (Of course, lots of Americans can't name their Senators and Congressmen either. Can I name mine? Yes, but I'm not telling.)

Sandra Day O'Connor had the highest individual name rec, at 25%. I'd say that her relative fame is a result of (a) being the first woman Justice; (b) being the swing Justice, with corresponding media attention; and (c) having a sonorous and easily remembered name. Clarence Thomas was second; 21% of Americans could name him. This probably reflects a combination of his media-crazed confirmation battle back in 1990-91; a fairly high media profile since then; being the only black Justice; and the fact that the first name "Clarence" is rare today.

It drops off fast after that. 10% of Americans polled know the name of Chief Justice Rehnquist (the Chief Justice of the United States! Ten percent!), and 9% apiece know Nino and Ruth, who have fairly memorable names. The other four Justices come in at 4% or less.

John Paul Stevens was in the basement: only 1% of respondents could name him as a Justice. That's pretty striking, even when you take into account that he was confirmed a long time ago and has the most anonymous name of the Nine (with Anthony Kennedy being close behind). It's easy to confuse him with John Paul Jones, the famous Revolutionary War naval captain and Led Zeppelin bassist.

The survey also reports that "less than one percent" of respondents could name all nine Justices. When you consider that there are about one million lawyers in the U.S. -- which comes to roughly 0.3 percent of the population -- that result more or less interprets itself.

* * *

Friday, June 20, 2003

Neuroeconomists, Meet Aristotle

PLAINSMAN: Everyone should spend some quality time with the Philosopher. My title was prompted, however, by reading the article that D. linked to on brain research and economic reasoning. I was particularly interested to read its account of how the nervous system behaves during the Ultimatum Game:

"In a study published the current issue of the journal Science, Dr. Cohen and his colleagues, including Dr. Alan G. Sanfey of Princeton, took images of people's brains as they played the ultimatum game, a test of fairness between two people.

In the ultimatum game, the first player is given, say, $10 in cash. He must then decide how much to give to a second player. It could be $5, the fairest offer, or a lesser amount depending on what he thinks he can get away with. If Player 2 accepts the offer, the money is shared accordingly. But if he rejects it, both players go away empty-handed. It is a one-shot game, and the players never meet again.

Most people in the shoes of Player 2 refuse to take amounts under $2 or $3, Dr. Cohen said. They would rather punish the first player than feel cheated. "But this makes no economic sense," he said. "You're better off with something than nothing."

Brain images showed that when players accepted an offer they viewed as fair enough, a circuit in the front of their brains that supports deliberative thinking was activated.

But when they rejected an offer, the insula -- which monitors bodily states, including disgust -- overrode the frontal circuit. The more strongly the insula fired, the more rapidly the person rejected the offer, Dr. Cohen said. Moreover, the insula fired well before the person pushed the button to refuse an offer.

Economists can use this finding to quantify the contribution of emotion and deliberation in making decisions, Dr. Cohen said. It is possible to calculate how much emotion goes into evaluating the worth of economic activities and to study the neural underpinnings of bargaining when people don't want to let others take advantage of them.

Now that's interesting. I like Dr. Cohen's choice of words in describing the elements of decision-making that seem to be in play in his subjects: both "emotion" and "deliberation" contribute to the outcomes. What would be unjustified, I think, is leaping to the conclusion that there is a corresponding tug-of-war between emotion and reason, as if the disgust that leads subjects to reject low offers is somehow inherently irrational.

It would be informative to bring the participants who rejected offers back on the next day. Then ask them if they remain comfortable with their choices after having time to reflect. I bet you'd find that large majorities of those who rejected low offers still had no regrets and would do it again.

That's where Aristotle comes in. He argued that anger (which, in the Ultimatum Game, takes the form of disgust at one's counterpart's offer) is a passion that's connected, in a complicated way, with rationality. Anger embodies a judgment about the world, and that judgment may be a true or false one. When you learn that the person over whose foot you just tripped did it by accident, your anger lessens. Indeed, Aristotle thinks that part of acquiring virtue is learning to be angry at the right things to the right degree.

Thus, one can argue, consistently with the scientific findings in this article, that when a player of the Ultimatum Game reaches a snap judgment that her counterpart's low-ball offer is insulting and deserves to be rejected, her judgment may be as rational as many others that we reach. Put another way, the fact that the "emotional" centers of the brain interact with the ratiocinative faculties when people make certain economic decisions does not necessarily entail that the preferences people express in those decisions are entitled to any less respect than economists give to our decisions to purchase Ford F-150 pickups or Treasury bonds.

* * *

One Last Thought About Reopening Roe

PLAINSMAN: Sorry I didn't get this up sooner. It relates to our string of posts a bit below about Norma McCorvey's motion to reopen and overturn the case brought on her behalf as "Jane Roe."

D.'s last post was quite apt -- I hadn't understood well what a Rule 60(b) motion was about. (Yet another example of how former federal district court clerks keep other lawyers honest. If you want to be a litigator, seriously consider a district clerkship.) The procedural validity of the motion obviously matters to our view of it.

However, I note that Rule 60(b)'s one year time limit doesn't apply when a plaintiff moves to "set aside a judgment for fraud upon the court." McCorvey's motion characterizes Roe as involving such a fraud. I don't know whether she has a colorable argument for this or not -- she's submitting thousands of pages of affidavits and scientific evidence, but I don't know how much of it relates to the evidence in 1973, which is the relevant time for proving a "fraud on the court." This seems to be the main procedural issue.

* * *

"What kind of people loot dirt?"

So asks a frustrated soldier in today's WaPo, speaking of the problems of winning the peace "Even relatively simple projects designed to show goodwill can turn sour. Military engineers recently cleared garbage from a field in Fallujah, resurfaced it with dirt and put up goal posts to create an instant soccer field. A day later, the goal posts were stolen and all the dirt had been scraped from the field. Garbage began to pile up again. "Is this animosity, crime or both? What kind of people loot dirt?" said Capt. Allen Vaught, from the 490th Civil Affairs Battalion."

You know, I have no idea. The idea of Iraqi commandos taking buckets of dirt from a soccer field so that our soldiers would be disheartened is impossible to believe. Maybe there was a wind-storm? Maybe there was a flood and the dirt was eroded away? Or maybe the residents of the neighborhood thought we were hiding something? Regardless, it doesn't sound like our guys are having a great deal of logistical and political support as they struggle to perform their ill-defined mission.

Thursday, June 19, 2003


My genes are under seige

Another terrific NYT science article, about the Y chromosome's surprising asexual reproduction, containts the following memorable line: "Although most men are unaware of the peril, the Y chromosome has been shedding genes furiously over the course of evolutionary time, and it is now a fraction the size of its partner, the X chromosome."

"Unaware of the peril" -- well I, for one, am now worried.

Wednesday, June 18, 2003

Well Someone Has a Black Eye

Last things first. The article to which you refer does not state that McCorvey's counsel is asking for a "good faith modification of existing law". What she wants is a relief from judgment, based on changed factual circumstances (under F.R.C.P. 60(b)(2) and possibly (b)(6)). Why is this motion obviously frivolous? Unlike in Agostini, the case referred to in the article as providing substantial comfort to the plaintiffs, Roe did not create a continuing injunction but rather a judgment about the constitutionality of a state law. It has been way more than a year since that judgment; therefore F.R.C.P.'s Rule 60(b) relief for new evidence is unavailable.

To argue for a good faith modification of existing law, e.g. Roe, one simply should prosecute a newly passed law criminalizing abortion despite Roe and its numerous progeny. Such arguments are not frivolous. Depending on how the law is crafted, they might even be meritorious. But this motion is frivolous, and is obviously intended to have the effect that you hope it will: a political statement to "undecided" individuals. Whether it is in fact a "black eye" for the "pro-choice position", well, I think it is in the eyes of the beholder.
PLAINSMAN: I have to disagree. Our perspective is skewed by the fact that we're lawyers who hang out with other lawyers. Many people have no clear view on the propriety of the 1973 decision. They vacillate, or they just prefer not to think about it. Hearing McCorvey's story forces them to think about it for a moment, and the fact that the supposed beneficiary of the decision is repudiating it with all the strength she can muster is fairly striking. And its effect is in a pro-life direction. The case against constitutionalizing abortion law is fundamentally a legal case, but it is sometimes useful to change people's attitudes in order to get them to listen attentively to certain legal arguments. Why do people like Cher go to such trouble to produce pro-choice movies telling women's personal stories, if not because they are believed to influence the debate? Just as you suggest, McCorvey's story is "troubling."

So it should simply be conceded that, yes, this is a political black eye for the pro-choice position, as incidents of protest violence (which similarly influence people's views of the law at the level of anecdote, rather than direct argument) are manifestly a political black eye for the pro-life position.

Also, it's erroneous to suggest that McCorvey's Rule 60 motion isn't brought in good conscience, simply because, as a matter of hard fact, it isn't going to prevail. I think this would become clear if we were talking about, say, a challenge to Plessy v. Ferguson brought before a segregationist bench during the winter of Jim Crow. To use a familiar phrase from legal ethics, McCorvey's counsel is arguing in good faith for a modification of existing law. The grounds for the argument are provided in the piece Eugene linked.

* * *
Roe Rues Roe

I disagree. I think it will have no impact on the "unsettled folks in the middle", if, by the middle, you mean people who have drawn no conclusion as to the constitutionality of total bans on abortion like those now proposed by Ms. McCorvey. That subset of individuals is limited to republican candidates to federal court judgeships, who, being likely to be well informed, would have already known that McCorvey has previously denounced her eponymous lawsuit, and therefore would not have been struck by the news. I wasn't. I had thought this happened years ago, and that somehow the story got recycled.

I suppose that some people who are moderates on abortion, i.e. those who (like most democrats) feel it should be legal in many circumstances but rare, could consider McCorvey's change of heart troubling -- anytime I hear of a woman who regrets an abortion, I try to think critically about my beliefs. But I'd guess that the field of arguments for and against abortion is fully occupied, and her position is not new(s).

Some people might suggest that wasting public and private resources through motion practice for, in effect, publicity purposes, is something a lawyer in good conscience should not do.
Of Course It's Good Publicity

PLAINSMAN: Eugene Volokh notes that Norma McCorvey ("Jane Roe" of Roe v. Wade) is petitioning the Supreme Court to reopen and reverse that famous case. Prof. Volokh correctly states that, as a legal matter, this isn't going anywhere. But he also writes: " I don't know whether this is effective publicity for the pro-life cause or not," and closes with an equally muted statement: "this legal maneuver may or may not be good politics -- but it will not have any effect on the law."

It's odd that the perceptive Prof. Volokh is so tongue-tied about the political value of this. Of course it's effective publicity for the pro-life cause. It's just one of a great many legal, philosophical, and political factors that inform society's perceptions of Roe, but I don't think there's any doubt that the political force of this fact is (a) non-negligible (you were struck when you first learned about it, weren't you?) and (b) favorable to pro-lifers. So why not just say so? "This legal maneuver is good politics -- but it will not have any effect on the law."

As Matt Evans puts it at The Buck Stops Here: "[I]t's as if James Brady called a press conference to request that the Brady Bill no longer bear his name. The publicity that one of the people most intimately associated with gun control no longer believed it would be great for the gun rights crowd. That's how pro-lifers [and, I would add, probably a number of the unsettled folks in the middle] view Jane Roe's decision to fight the decision that carr[ies] her name."

* * *

Monday, June 16, 2003

More on that Neuroeconomics article

What I consider to be the money paragraph (heh): "The brain needs a way to compare and evaluate objects, people, events, memories, internal states and the perceived needs of others so that it can make choices. It does so by assigning relative value to everything that happens. But instead of dollars and cents, the brain relies on the firing rates of a number of neurotransmitters — the chemicals, like dopamine, that transmit nerve impulses. "

Ok, now this is intriguing. So is the answer to the deeply troubling question of welfare economics (namely how do we fairly weigh preferences) that we should measure relative dopamine levels? Well, that solves that! New article title: "Tell Me How Many Neurons Are Firing and I'll Propose a Legal Regime: Some Implications of Neuro-Econo-behavioralism".

Wow, you have go read, right now, this article in the NYT about "neuroeconomics". Researchers are putting people into MRI machines and playing the Ultimatum Game. Clearly, this field of research is intimately connected to legal academic's new fad, behavioralism. This instant I should be writing a law review on this topic, e.g., "Taking Neuro-econo-behavioralism Seriously: Some Evidence of Brain Function and Its Implications for Contract Theory". Damn you, summary judgment brief, for getting in the way of glory.

[Thank you for the correction on the Eighth Amendment in Overton. You are right. Of course, Thomas' definition of the Eighth Amendment's limiting force would cut back significantly on many of the rights "enjoyed" by prisoners today.]
Loose Originalist Argument

PLAINSMAN: I largely agree with you, D. I thought the originalist argument (well, it was sort of originalist -- an argument from past history to present intent) in Justice Thomas' s Overton concurrence was pretty loose and unpersuasive. Justice Scalia should have concurred separately, if that's what he wanted to do, rather than join Thomas's opinion.

That's the thing about originalist legal argument. You've got to put in a lot of time and care to do it right. Compare that concurrence with the originalist argumentation in Thomas's Lopez concurrence or Scalia's opinion in Harmelin v. Michigan. The level of historical detail is far greater and its connection to the legal issue at hand is much more direct.

One slight emendation to your post. Thomas would have held that the First and Fourteenth Amendments do not limit the State's power to restrict prisoners' rights -- but that the Eighth Amendment does.

* * *

It was just as well the Nine did not deliver the Grutter goods today. I've been occupied by work. A common theme here at my anonymous law firm. [Lets call it SubJudice LLP]. But I did find Beaumont especially interesting as a signal of the votes for next fall's blockbuster campaign finance case. I also thought that Justice Thomas' concurrence in judgment in Overton was, sitting in isolation, pretty clever, but ultimately kind of scary. Thomas would have held, contrary to governing precedent, that a state can define away constitutional rights in sentencing (e.g. defining a prison term as a sentence of jail time without any visitors), and that no federal right to intimate association is available to challenge that sentence.

What really stuck me about the opinion was the opinion's loose use of the history of imprisonment in deciding what Michigan's intent was in creating his prison system. I'm not going to recap his historical jaunt here - I encourage you to read it - but I think fairly read it is, well, not especially professional. He goes on for two or three pages about what jails were like in the 19th century, and then, seemingly out of nowhere, comes the conclusion that since Michigan's restricted visitation prison system has some of the same characteristics as 19th century jails, therefore Michigan must have had this history in mind as a "backdrop" when creating its sentencing system. Therefore Michigan meant to extinguish the prisoners' constitutional claims.

Huh? Doesn't this remind you of that old discredited argumentative technique of using legislative history in interpreting statutes? Isn't Thomas just sitting at a cocktail party of historians, pulling a few choice quotes, and concluding that "history is on my side"?

Well, I thought so.
Back to the brief.
Stretching It Out

PLAINSMAN: The title refers to my incomplete post below on state courts and jurisprudence, which I will have to finish later. It also refers to the Supreme Court, which might have delivered opinions today in some of its pending blockbuster cases, but didn't.

Not that today's opinions were inconsequential. They addressed such important questions as, inter alia: when the government may medicate mentally incompetent inmates for the purpose of rendering them fit to stand trial (Sell v. United States; held, only sometimes); what restrictions prisons may constitutionally place on visits to inmates (Overton v. Bazetta; held, pretty significant ones); and whether Congress can constitutionally ban direct campaign contributions by corporations to candidates for federal office (FEC v. Beaumont; held, indeed it can).

I'm not going to do any detailed blogging of today's cases. Howard reports that the Court has announced that it won't deliver any further opinions until next Monday, which means that next week is probably going to be insane. The Court has yet to rule in Grutter v. Bollinger (the U. of Michigan affirmative action case -- go, Barbara!); Lawrence v. Texas (14th Am. DP/EP challenge to Texas sodomy law); and Nike v. Kasky (major case on the 1st Am. "commercial speech" doctrine; whatever happens, expect a substantial opinion by the Justice on Southern Appeal's front page).

Hold on to your hats.

* * *
[again, ignore]

Saturday, June 14, 2003

Thoughts on Formalism, Jurisprudence, and the State Courts

PLAINSMAN: After recently spending a lot of time working on a state appellate court brief, I'm in a mood to ruminate about the proper role of state judges in our legal system.

I'll start off by saying something that's sort of obvious, but is easy to forget if you gather your information from the prestige media and the law reviews: state courts are really important. They're the courts that most people deal with; and under our federalist system, they are charged with a number of unique responsbilities over our lives, liberties and property. (AEDPA, anyone?) There are countless excellent state judges and officials. But if I could somehow encourage more talented law students and lawyers with an eye on public service to lend their talents to improving their states' governments, rather than assuming that federal careers are always where it's at, ... well, I would do it. There's a famous law review article by Prof. Burt Neuborne, "The Myth of Parity," 90 HARV. L. REV. 1105 (1977), that claims that federal courts are systematically superior fora for litigating federal constitutional rights, in part because of a significant gap in "technical competence" to the disadvantage of state judges and (says Neuborne) their clerks. Whether or not one thinks this point is true, it's clear that it shouldn't be true.

I. Three Common Principles of Contemporary Formalism
We've talked a lot on this blog, pro and con, about the principles that Prof. Solum (following Prof. Thomas Grey) calls neoformalism. These principles include textualism and originalism in applying enacted law, and a general preference for rules over standards in other matters.

(Professor Solum would add a very strong version of stare decisis to the tenets of formalist judging. I disagree: stare decisis is an invaluable legal policy, but it is not part of formalism itself.)

Formalist theories are typically presented as theories of federal judging: the subtitle of Justice Scalia's book on textualism, for example, is "Federal Courts and the Law." Why not "courts" generally? I think most proponents would answer that formalism entails certain restrictions on the valid use of judicial power, and the case for those restrictions is strongest, or at least clearest, when it is addressed to those judges in whom we repose the most power: federal judges. Their decisions trump state law, and our Constitution deliberately insulates them from democratic influence by means of Article III's tenure and salary protections.

Yet as I said, most judges are state court judges. So it's worth asking: to what extent do formalist principles apply to state court judging? To throw light on that question, we need to think about some differences between state courts and the courts to which formalist theories are more commonly addressed.

II. Differences Between Federal and State Courts
One of the most important differences is that ever since Erie R. Co. v. Tompkins(1938), federal judges have had no power to make "general common law." There are a few specific subjects governed by federal common law, and of course federal judges' decisions interpreting open-ended federal statutes like the Sherman Act form a kind of common law. But state judges do have a general common law-making power; indeed, until codification came into vogue in the 20th century, the law of contracts, torts, property, family relations, and other vital subjects was almost entirely the product of common-law decisions by state judges.

(Justice Cardozo once wrote wistfully to a rising legal star -- I think it was the young Robert Jackson? -- that if at all possible, he should try to get himself appointed to Cardozo's old court, the New York Court of Appeals, and not his current one, the U.S. Supreme Court, because the Court of Appeals was "a real lawyer's court," i.e., a common-law court, whereas all the Supreme Court did was construe statutes all day.)

Of course, the situation is different today, because there is way more state statutory law than in Cardozo's day. Even in such common-law redoubts as contract law, the states have adopted the Uniform Commercial Code, a detailed statutory scheme regulating (inter alia) commercial contracts. It's a pretty rare state case that doesn't involve a statute at some point or another.

The other big difference is that most state court judges are subject to elections of some kind. There is a vast debate as to whether this is desirable. I will not even pretend to address it here: I will just state that while I find direct, contested elections of judges (as in Texas) very troubling, I think that a system with some element of popular accountability, such as the "Missouri plan" followed by a plurality of states, is defensible. Under the Missouri plan, a state bar committee forwards a slate of nominees to the Governor; the Governor picks one; and the judge must then periodically stand for an up-or down, uncontested retention election. (The best-known such election came in 1986, when Californians removed Chief Justice Rose Bird, who had essentially refused to enforce California's duly enacted death penalty statute.)

III. So How Well Do Formalist Principles Apply to the State Courts?

[Ah -- I'm going to be without Internet access shortly, so I'll have to resume this discussion tomorrow. Apologies. I'll try to say some things about the Michigan Supreme Court, currently one of the most interesting courts around. I get most of my information about that court's doings from The LitiGator, a fine law blog with an emphasis on events in Michigan.]

Friday, June 13, 2003


PLAINSMAN: Blogger hoodies. That's the ticket.

* * *
Still Here Too;
Plus, A Different Suggestion for a "Wild Card" Nominee

PLAINSMAN: D.'s right; I've been de-stressing by posting some ephemera over at that other blog. (Please weigh in on our cider plebiscite.)

Now it's time to get back to the hard stuff here at the mothership. I'm finishing up the promised post about textualism and the state courts; it should be pretty interesting. It will be up by tonight or early tomorrow.

In the meantime, you should check out Professor Balkin's presentation of the case for nominating Judge Posner as the new Chief Justice. Pretty good, though Juan Non-Volokh has questioned whether Balkin's stated criteria are really the whole story.

I raised an eyebrow at this remark of Balkin's: "When Orrin Hatch and other folks go on and on about how great a legal mind some of these Bush nominees possess I just have to laugh. That really cheapens the term. These guys may be ok lawyers, but they are not great legal thinkers." Hmm. Michael McConnell, anyone? Now-Judge McConnell ranks as one of the leading constitutional law scholars of our time. How about John Roberts, widely acknowledged as the pre-eminent advocate among the already-rarefied ranks of the Supreme Court bar? Prof. Paul Cassell was a prominent criminal procedure scholar before Bush put him on the district bench; probably the leading conservative criminal law scholar after William Stuntz and the late Joseph Grano. Jeff Sutton is impressive as well. Oh yeah, and then there's Miguel Estrada...

I know, Balkin qualified his remark; he said "some of th[e] Bush nominees" are at best "ok lawyers." Taken as a whole, they are an impressive bunch, and some of them are stars.

My own wild-card choice for a new Justice would be Judge Alex Kozinski. I've criticized Kozinski occasionally on this blog for getting too cute in his opinions, but there's no question that underneath the flamboyant stylistic veneer he is both analytically rigorous and passionate about the integrity of the law. His energy and desire for candor would act as a spur to the Supreme Court, some of whose current Justices have (let us say) a tendency to make their analyses and holdings more obscure than they might be. Colleagues who tune out Justice Scalia might yet harken to him. Kozinski serves this function on his current court; he is the superego of the Ninth Circuit.

But ultimately I would (if anyone cared) recommend Kozinski because I think he fundamentally thinks about the law as a lawyer. I find it hard to articulate this well; I mean that he sees the law and the legal system as a substantive strand of our identity as a people. Posner fundamentally approaches law as a materialist social scientist, like Holmes, with a catlike, ironic distance. I concede that the quality is more perceptible in Posner's books than in his (generally excellent) judicial opinions. Nevertheless, it makes me wonder how his fine legal craftsmanship on the Seventh Circuit would translate to the contemporary Supreme Court.

UPDATE: A way of getting at my qualms re: Judge Posner is simply to look at some of the titles of his works: Overcoming Law. "The Decline of Law as an Autonomous Discipline" (100 HARV. L. REV. 761 (1987)). And so on. I don't think Judge Kozinski thinks about law that way.

To be sure, Posner's titles do not reflect a simple nihilism. They refer to specific, interesting, and sometimes well-developed debunkings of contemporary legal theory and practice. But Posner is fundamentally a debunker of law (of private law, of legal theory, of constitutional theory), and despite his evident excellence at deploying the legal reasoning that he seems to regard as a veil, I question whether he would be a strong choice for the Supreme Court, where his activity would be less hemmed in by precedent and craft norms than it now is. (He has never claimed to be a textualist.) There is more would-be debunking today than there is bunk. Much "realism" slices at muscle as well as fat.

One might conclude that Judge Posner belongs exactly where he is now: a valuable gadfly and an energetic, working judge at the middle of the federal judicial hierarchy.

* * *

Wednesday, June 11, 2003

Still Here

Just very busy, and feelin a buried by paper. I encourage you to go to Drink Me, where P has apparently let his hair down a bit.

I'll return here with a real post within the week, I promise.

Thursday, June 05, 2003

Announcing a Sidelight

PLAINSMAN: Personally, my trains of thought contain a certain amount of randomness and fluff not easily transferred to this fairly serious law blog of ours. For that reason, I am delighted to have accepted an invitation from fellow pseudonymous law blogger Alice to join her in posting free-associative tidbits over at Drink Me, her new piece of blog real estate.

Drink Me: Go for the handsome front-page image; stay for the panacheful drollery. And some posts by me.

* * *

Wednesday, June 04, 2003

We All Have Our Limits; Chocolatey Danger; The Next Amendment

PLAINSMAN: Blast you, Blogger!

Eve Tushnet, whose readership I would love to introduce to our little enterprise here, is linking to our discussion of neoformalism but the damn link doesn't work. I'd steer you over to Eve's discussion (June 4, 4:58 p.m.), but links to her posts aren't working either.

Yeah, there's a general malaise on Blogger. But our site has long been worse off than usual. All right. This weekend I will see if I can make some improvements (such as reviving our archives) by messing around with the site's template. If that doesn't help, we may have to start thinking about Movable Type or some other strong fix.

Speaking of Movable Type ... no, I'll wait until tomorrow for that.

Anyway, about Eve. A fellow textualist, she critiques Prof. Solum's extreme emphasis on stare decisis (please check out Solum's long, absorbing post on that topic today; his links do work) and strikes the same note I tried to hit in my May 18 post. The difference is that she is a lot more concise and demotic:

"Solum lauds really really strong stare decisis (hereafter, RRSSD) as a way of depoliticizing the judiciary. Buh? Doesn't it actually raise the benefits of mucking around with the law [...], because as long as you slide one political power play under the bar it's law forevah? Seems to me that's a huge, chocolatey, cream-on-top temptation for judges to Resolve The Difficult Issues for us little people."

Yep. And another thing. Solum says what needs to happen in order to defuse all the ugly fighting about the courts is for "the Republicans or the Democrats to suggest that judges should be selected on the basis of their possession of the judicial virtues, rather than their political ideology."

But as Eve points out, " 'judicial virtues rather than political ideology' misses the point. It's about jurisprudential philosophy. Sure, let's look at virtues too, that's fine, but what I really want to know is whether someone believes in writing his favored policy positions into the Constitution. Not what those positions are (=political ideology), but how he believes they should be implemented."

I agree. That is why I largely tune out when someone like Sen. Schumer is railing about how Bush wants to "pack the courts" with "far right" nominees, so it's the Democrats' responsibility to keep things nice and "centered." It's not about points on a spectrum, it's a discontinuous difference. Certain Republican appointees (more and more of them, and would it were all) embrace a particular, well-elaborated, influential understanding of the judge's job. And Schumer's talk of "balance" or "moderate nominees" is calibrated to exclude lawyers with that self-understanding from the federal bench.

Eve thinks this might change -- everyone might become presumptively textualist about judicial nominees -- if something big happens that "put[s] the Senate in a position where it has to break the ice." One of her examples is: "a) A court somewhere will mandate same-sex marriage. Fur will fly. The courts will become a major political issue, much bigger than they are now."

That might be. People think the Massachusetts SJC is going to take that step this summer. What Eve's scenario (a) is also likely to produce is a new constitutional amendment enshrining traditional marriage. You watch. I wish, e.g., Andrew Sullivan not a mote of ill, but I think it's a mistake not to recognize that outcome on the horizon.

* * *

Tuesday, June 03, 2003

More on Alafabco

PLAINSMAN: Little escapes Marty over at SCOTUSBlog, so it is no surprise that he too noticed that the Supreme Court's summary reversal in the Alafabco case yesterday actually said some pretty significant things about the Commerce Clause. So go check out his rundown, which culls the key quotes from the Court's opinion.

To cut to the chase, Alafabco suggests to me that the Court is chiefly interested in enforcing two limits on the commerce power:

- (1) the "non-infinity" principle from Morrison (i.e., if upholding a particular statute means that Congress can regulate everything, it's out); and

- (2) only "economic" activity can be aggregated as in Wickard. The Court hasn't come out and squarely held (2) yet, but it has strongly hinted at it, and Alafabco is written so as not to conflict with that principle.

Is this enough to work with? I think it might be. For starters, notice that (1) and (2) are easily a sufficient basis to uphold Judge Reinhardt's invalidation of the federal possession statute in U.S. v. McCoy. The activity in McCoy was not economic, and upholding the jurisdictional element at issue in the case ("no doing X using a Y that crossed a state line at some point in recorded history") would be tantamount to letting Congress reach everything.

And a Commerce Clause doctrine characterized by limits (1) and (2) reflects a plausible approach to the Clause at this late date. The federal government may regulate a great many things, but there are some textual limits that preserve certain spheres for the states.

Our sanguinity about Alafabco should depend, however, on whether the Court is willing to give a relatively clear (and somewhat restricted) definition to the criterion of "economic" activity in future cases.

For today, Alafabco is what it is, and what it is isn't bad.

* * *

Monday, June 02, 2003

Legal Tautology Games

I've been a lawyer for around 18 months, and I've started to get a sense of the jargon. My current favorite: "It is what it is". Why? 1. A thoughtful response to a question by a summer associate (e.g. "The partner just talked to me for 25 minutes about X case. But what is it really about?" "It is what it is."). 2. A deflecting response (in multiple forms) when asked an uncomfortable question in life generally. (e.g. "How are things going with that girl?" -"It was what it was"; "How are your hours at work?" -"They are what they are"; "What is it like to be a Philadelphia sports fan" -"It is what it is").

A close second best, and also a tautology, is the famous litigator's response in a deposition, "the document speaks for itself". I'm not sure why I like this one, except that after reading as many pages as I do a day, I often look at the pile remaining in front of me and say, "well, dammit, how about it?"

At any rate, my sympathies to you, P., on thejunkmail. I once was an ACLU member and ironically resigned my membership after becoming annoyed by a particularly strident solicitation letter (that, plus they sold my address to Amnesty Int.). I also, in the interests of full disclosure, was a non-dues paying member of the Federalist Society at a point in law school, and attended at least a handful of social and/or academic events. As for what that says about my need for consistency. Well, I guess it is what it is, and can speak for itself.

On state courts, well, bring it on. Should elected state court judges have their own manifesto? (Apart from that which is most electable, I suppose).
Maintaining Standards; Some Interesting Mail; Promissory Notes

PLAINSMAN: 1. That is a cool article. I particularly liked learning that only three people in the world have security clearance to see the Kilogram. It made me recall my high school science-nerd days -- my buddies and I would have launched on all sorts of dopey riffs with this information. ("Dude, how much ransom do you think they would pay if someone kidnapped the Kilogram?" "What if you tripped and dropped it on the floor?" etc.)

One gets the sense from the article that it's tricky to standardize a scientific measure of mass to the requisite laser precision: harder than it is with, e.g., measures of distance. Take the meter. As the article indicates, there used to be an actual Meter. It took the form of another block of platinum-iridium alloy (that stuff must be ultra-hard or ultra-chemically stable or both) with two notches on it. But nowadays there's no Meter, just a meter -- defined as the distance that light travels in a vacuum during a certain teeny-tiny fraction of a second. Simple.

It's fascinating that the kilogram is the only basic unit still defined through ostension -- at the end of the day, 5 kg is just "five times the mass of that" (pointing to the safe outside Paris). As the British National Physical Laboratory notes, "[t]he fact that a single artefact provides traceability for the entire mass scale world-wide presents difficulties."

2. In other news, I got a piece of mail a few days ago from the American Civil Liberties Union that began, "Dear ACLU Member:"

And this was no computer error. I was a card-carrying ACLU member about a decade ago. I remember getting the accompanying junk mail from the Sierra Club, PFAW, and the like. I hadn't heard a peep from Nadine & Co. in years, but someone in New York must have called up an old membership list and fired off a renewal letter to me.

It was pretty reasonable. No evangelical-baiting a la PFAW. The letter only mentioned Bush and Ashcroft by name once, as I recall. It made some good general points about civil liberties in wartime. The overall tone was "now more than ever," but it didn't descend into personal attacks on Republicans or conservatives.

I won't be renewing. I consider them a seriously misguided outfit in many respects, though sound on others (especially free speech and the Fourth Amendment). But the foot they unwittingly put forward into this conservative's mailbox was a respectful and respectable one, and I salute their exercise of the freedom of association.

3. I've got some posts coming up on various topics. Not immediately, but in the next few days.

- For one thing, natch, I've got to respond to D.'s latest post on neoformalism-cum-culture war.

- Another post could go under the title "What About the State Courts?" That is, what (if anything) does contemporary formalist jurisprudence tell us about the role of state judges? How should their judicial self-conception differ from that of federal judges? Along the way I'll throw in some observations about the high-profile, controversial Michigan Supreme Court, the California Supreme Court, and maybe some others.

- Speaking of colorful state courts, the U.S. Supreme Court today gave us some interesting Commerce Clause analysis in the course of its unanimous per curiam reversal of the Alabama Supreme Court in Citizens Bank v. Alafabco, Inc. It's not like I'm going to let that pass without a comment or two.

* * *

Sunday, June 01, 2003

Coolest Article, Ever

The kilogram is getting lighter, reports the NYT, in a short article that has to be one of the most interesting that I've read this year. Among other intriguing facts, we learn that scientists have created the "roundest object ever made by hand"; so round that it is impossible to tell when it is spinning or at rest. Go read it, for a pick me up.