Sub Judice

"Handy Man Curse": Online Appointment

2009-11-19T11:56:00.002-06:00

It’s impossible to get any work done! I’m answering my phone all day long; trying to set appointments, accomplishing nothing, and making even less. I make pretty good money when the phone isn’t ringing. I would ask my wife to do the scheduling but we have gone down that road in the past. It is too hard on her and our small children. She has a full time job that is a lot more important than answering my phone calls. I need an online appointment scheduling solution that will come straight to my mobile device. That way I my customers can leave some details, set up an appointment, and I can get back to them after I put the food on the table.

Auto Service: Online Appointment

I’ve been a mechanic for thirty years now and have had my own station for the past twenty. I have seen a lot of things come and go- mostly other independent service stations- and now I mostly ignore everything that comes through the door. Sure glad I didn’t ignore this product when it came to my attention. It was for online scheduler . It’s been a business saver. It has taken a few months but my customers are getting the hang of it and the phone calls are going down and the appointments are going up. So it definitely has paid for itself and in this rough economy I need every little advantage that I can get.

2003-11-18T08:50:00.000-06:00

Our Closest Ally

Good article in today's WaPo describing British preparation for W's upcoming visit. Key insight: almost forty percent of the citizens of our closest ally think that the U.S. is, generally speaking, a force for evil rather than good in the world.

2003-11-11T08:27:00.000-06:00

Spitting on Returning G.I.s

There is a lovely article in today's WaPo about the efforts of a group of veterans to welcome home soldiers from Iraq. In it, the author (Steve Vogel) contrasts the treatment this group of G.I.s has received with that of soldiers in Vietnam. "Many veterans of Vietnam, returning to a deeply divided United States, were greeted with scorn, even spitting or hostile epithets, when they arrived home in uniform."

The ideas that returning Vietnam vets were spit upon is an urban legend. For a debunking, see here and here. To be sure, there was hostility and lack of support. But, as far as I've been able to tell, if anyone was spitting, it was the returning soldiers at the protestors, not the other way around.

It is no surprise that journalists, subject to confirmation bias, perpetuate these kinds of myths and urban legends. Of course, such effective pro-military legends do not fit the chickenhawk myth that the "media" is liberal and countercultural. But let's not let the facts get in the way of a good story.

[UPDATE: Slate jumps on my bandwagon. Where's the love?]

2003-11-07T08:19:00.000-06:00

W's Democracy Speech

W gave what was billed as an important speech yesterday on democracy. The money line:

"Therefore the United States has adopted a new policy: a forward strategy of freedom in the Middle East. This strategy requires the same persistence and energy and idealism we have shown before and it will yield the same results."

And, he concluded, the "establishment of a free Iraq at the heart of the Middle East will be a watershed event in the global democratic revolution."

Hmm.

My problem is that I trust nothing W says, on instinct, so the words -- however stirring -- have no resonance with me. I am reminded, again, of Orwell's "Politics and the English Language":

"It is almost universally felt that when we call a country democratic we are praising it: consequently the defenders of every kind of regime claim that it is a democracy, and fear that they might have to stop using the word if it were tied down to any one meaning. Words of this kind are often used ina consciously dishonest way. That is, the person who uses them has his own private definition, but allows his hearer to think he means something quite different."

2003-10-30T11:35:00.000-06:00

Does Howard Bashman Rock?

Yes.

2003-10-30T08:58:00.000-06:00

Back Briefly
I was talking to P last night, and explained why I haven't blogged for over a month. The simple explanation: I find most law blogs I read today devoid of thoughtful commentary. Most, I think, are now lacking the spark of excitement that once characterized their postings, and have fallen into some really bad political ruts. The prime example, it has to be said, is the volokh conspiracy. It isn't outright bad, but it isn't as interesting as it was. Too many rowers pulling the same way, I think. They should bring Mueller back.

I haven't decided if the lack of interesting links means that I'm not going to continue with this enterprise. I'm leaning that way -- and professional committments urge me to seal the deal. Before I do, I thought that readers my be interested, at least, to know what science says about my ideology. Apparently, I resemble Gandhi and a recent French prime minister. Sigh.

2003-09-28T16:14:00.000-05:00

Bashman, Redux

Hey P! I see that Howard has noticed our shout-outs to his growing importance to the appellate community. Hi Howard! I guess the plaintiffs didn't take my hint to email you. Now the 11th Circuit panel's clerks will have had the Alabama Solicitor General's last words in their e-ears as they sit down to write the opinions in the case. Foolish plaintiffs.

In other, non-law, news, I read this article about Palestinian celebrations of the third year anniversary of the "Second Intifada" and found it to be a depressing example of Reuters complete inability to tell a fair story in the middle east. Apparently, a Palestinian minister agrees.

2003-09-25T08:49:00.000-05:00

Should Bashman Be Part of the Record

Plainsman notes that Bashman has become the one stop shop for every appellate judge and lawyer in the nation. The specific example of Bashman's emergent necessity is this post, in which Alabama S.G. Nate Forrester defends one of his staff against charges of incompetent advocacy in the Alabama sex toys case.

I agree with Plainsman. Howard is indispensible. Question, though: why is the Alabama S.G. wasting his time arguing the merits of an important appeal on a blog? Could it be that he thinks that the panel (and its law clerks) read Howard daily too, and wants to make sure that he get his voice heard? If so (and I think this is the likely explanation), does Howard owe the plaintiffs in the case a sur-reply? If I were the attorney for plaintiffs, I would shoot Howard an email post haste, which praised him, and then offered some more arguments on the merits. Prediction: in one year, writing an email to Howard Bashman, hoping for a positive mention in the blog, will become part of what it means to zealously represent a client in a high profile appellate case. Yikes.

2003-09-23T08:27:00.000-05:00

A Good Apple

There is a wonderful article in this week's New Yorker about R. W. Apple, Jr., the NYT's famous reporter, and eater. Apple is the "quagmire guy"; he who Jack Shaferbelieves is a leading contrarian indicator. [That is, "Press Box" savages Apple for stating his "Q" heads summarizing the state of foreign policy as getting it precisely wrong, and marking the moment when things are about to get better]. The article and description of Apple, however, reminded me of my dear friend "Plainsman", now blogging on everything but law. Could it be that Plainsman is R.W. Apple? You'll never know.

2003-09-08T19:18:00.000-05:00

Spleen Venting Time

Another thing. David Bernstein is really irritating me with his "The Horror" posts. First, he excerpted a small part of a story about Alabama's crumbling infrastructure to score a cheap point in defense of the state's retrograde undertaxation. But, the straw that broke the camel back was this idiotic post. Try to imagine yourself as a college freshman. The worst thing that could possibly happen in your life is to be woken up at 8:00 a.m. by a bunch of marchers outside your window screaming "The People, United, Will Never Be Divided". If you can't empathize with the horror of that moment, you are just old in your head.

2003-09-08T19:07:00.000-05:00

A Virginia man was sentenced today to a 6.5 year term of imprisonment for selling fake bomb sniffing dogs to the government. Dog Trainer Russell Ebersole's argument at sentencing: "I believe in my dogs. They are heroes." AUSA's response: "[t]here is something sickeningly wrong with a man who steals from the Federal Emergency Management Agency at a time when it was stretched to the limit".

Well, yes. There is. But this low sentence, contrasted with mandatory minimum drug sentences, sort of makes me feel that there is something sickeningly wrong the system as as whole.

I can officially welcome my friend and former co-blogger to a blog of his own, the eponymous Plainsman. There, apparently, he is going to opine about only inconsequential things, so as to avoid potential conflicts with his new government job. P, are you sure the government agrees with you about Julia Child? You argue that "What struck me about the interview was that every critical judgment that the nonagenarian Child expressed was sound." But, according to our Great Leaders, all critical judgments are now likely to aid the terrorists. Might the terrorists have won if you convinced even one person that Contessa Ina Garten lacks "any charm"? Maybe the evil they have secretly despised Contessa Ina Garten for years!

Moving on.

I like P's blog, mostly because he has been able to do alone what we never managed to do together: make a functioning blog roll. How? He is a wicked smart guy. I may have to give up this blog just so I can start a new one that, well, works.

P is, unfortunately, not smart enough to avoid one of the most irritating heuristics of the last 4 years: the idea that there are "Red States" and "Blue States" and he lives in one of the former, and I the latter. I'm a little too tired right now to blog this out in the length it deserves, but suffice it to say, given an election where the Voters were divided equally, and states went one way or another on a few percentage point swings, it is a gross simplication to state that the middle of the country is homogenous in one way, and the coasts another. It tends to exagerate cultural divisions, make the national polity harder to govern, and encourage xenophobia. It is an observation borne out of television's need to concentrate relatively complex ideas into a simply graphic.

2003-08-27T21:19:00.000-05:00

Of note today

I generally find Maureen Dowd to be a poof. A column earlier, however, was somewhat sharp on the superficial foolishness of the Administration's fly-paper theory of the Iraq conflict. Others are taking on the task of calling out the Administration with a bit more seriousness. I couldn't agree more. The idea that we are winning in Iraq because we have convinced a bunch of fanatics that it is the place to come to kill us is foolish on several levels. First, as many have noted, the supply of fanatics is renewable, while the supply of American blood and treasure is not. Second, this is precisely the argument that we made post-Tet in Vietnam. And once again, such arguments only work in "real" wars, not strategic or political wars, which is what Vietnam was, and Iraq has become.

2003-08-26T21:52:00.000-05:00

No, I'm not dead

But I did have a "Job-ian" month. The Chaldeans delivered four witness preps, followed by a set of jury instructions, and I spent a non-trivial amount of time engaged in getting an article out the door. Most, but not all, of those tasks being accomplished, I'm ready to blog again.

While I was gone, it seems that Justice Moore embarassed his federalist fellow travellers by demonstrating why we really, really, need a Supremacy Clause; GWB tells us that, even given a $5.8 Trillion dollar expected deficit in a few years, and unending war and increasing threats of terrorist activity, he is undeterred. Beating GWB in 2004 is plainly insufficient; punitive damages (like, for example, requiring him to publically renounce Tom Delay) would seem to be necessary to remedy this kind of harm.

In that vein, I've actually donated a little money to Howard Dean. I'll tell you, I have mixed feelings about it. On the plus side, I like that he is not afraid of his own political shadow. On the minus side, it is easy to be unafraid when you have nothing to lose. On the second plus side, I enjoy that he isn't a tall man. On the second minus side, I believe that Dukakis was also short. On the third plus side, I think his e-campaign is well organized. On the third negative side, I am starting to get annoyed by the follow-up emails. Before I contribute more, I will wait to see if he changes his message in response to media pressure to become more electable. I really, really, liked this gambit. I also like that Dean, unlike Bush, is running a grassroots campaign of outrage, instead of a fatcat campaign of self-protection, and self-congratulation.

Whew. With P gone from this blog, I see I'll have to impose my own self-discipline so that I don't go off on political rants like this often.

I have been thinking about where to take this blog now. One of the features I'd like to do is an analysis of an interesting District Court case of the week - particularly a case that isn't in the media spotlight. I have sort of mixed feelings about this process, because I'm not convinced that it is a good thing to turn cases into entertainment fodder. But it is a relatively underserved niche.

I also think I'll spend a little more time than P and I did talking about scholarship. Like "Legal Theory Blog", without those monstrously heady posts where Solum is at first stumped by Professor Balkin's arguments, but then destroys him with a quip about Habermaas.

We'll see. For now, I've got to give those Jury Instructions another once over. Write more soon.

2003-08-04T21:56:00.000-05:00

Also

PLAINSMAN: I'm going to buy another ish of Mother Jones off the newsstand before I take the plunge. I'm changing addresses in a few weeks anyway. I think I'll also take up The Atlantic at that time; it is excellent.

* * *

2003-08-04T21:25:00.000-05:00

Audibly Amused

PLAINSMAN: That Green Bag parody of Job is really funny. "While he was yet speaking, there came another, and said, The Chaldeans have delivered full ten thousand documents which we must redact, and only I am escaped alone to tell thee."

Good show.

* * *

2003-08-04T18:21:00.000-05:00

D:

I'll take another look at Mother Jones, on your say so. As I said, I had mixed reaction. On the one hand, my exposure to the magazine came in repeated visits to the the wonderful "Blue in Green" restaurant at N. 3rd and Market Streets in Philadelphia. [Note: Best. Pancakes. Ever.] But, although I am intrigued by your idea of "performative liberalism", it seems to me that its writers are too rarely exposed to the harsh, clarifying, light of political compromise.

But maybe it is worth another look. As for me, I'm terribly excided to start receiving my subscription to the Atlantic. I am also tempted to get myself a subscription to the Green Bag, even though I know that their bobble-head loss leader promotion has now expired. [Howard gets all the good stuff!] . Incidentally, I urge our law firm associate readers to compare this parody in the Green Bag with the original Book of Job. The idea that partners can do anything to their associates except for taking away vacation [at which point, associates will "curse thee to thy face"] just cracks me up.

2003-08-03T01:45:00.000-05:00

One Thing About Pryor

PLAINSMAN: D. suggested below that a possible Democratic downside of filibustering Bill Pryor is that he'll just end up as a U.S. Senator from Alabama. Perhaps. But as I understand it, current Sen. Jeff Sessions is a solidly conservative Republican, and Sen. Richard Shelby is a fairly conservative Dem-gone-GOP, so there's a question of marginal loss/benefit.

Speaking of AG Pryor, I was curious to see whether he would be scheduled to speak at the 17th Annual Federalist Society Lawyers Convention on November 13-15, which I've begun to get letters about. Nope, he's not. Typically awesome lineup, however.

I plan to attend this year's Lawyers Convention (government rate!) if I can arrange the time off from work. It will be my first.

* * *

2003-08-02T23:35:00.000-05:00

I'm Going Into OT; and, Liberal Magazine Recommendations

PLAINSMAN: Jeez. I've run over my self-imposed deadline without addressing any of the topics I foreshadowed in my last post. This was unavoidable: I've been tying up loose ends here, signing a lease, and trying to get a law review article in shape for submission at the end of the month. Nevertheless, things shouldn't end on a whimper, so I'm going to defer my departure until Friday, August 8. By then I shall have my say on state court textualism, Grutter, and the magazine racks.

And speaking of magazines
Thank you to our readers who provided a lively set of left-leaning magazine recommendations.

Several people recommended The New Republic. It's a reasonable recommendation, but one I must decline. While there are any number of smart folks at TNR (Jeffrey Rosen, for example, is well worth reading), the anti-Christian animus displayed in TNR articles by Leon Wieseltier, Daniel Jonah Goldhagen, etc., tends to poison the mag for me.

Fewer people than I expected recommended The Nation. I used to subscribe to it in college, and have always liked Arthur Danto's art criticism. One reader pointed to Patricia Williams' column as a strength; I can't agree. I don't think she's a good writer, and in my experience she tends to assert striking positions rather than justify them. Still, The Nation is a possibility.

To my surprise nobody recommended The American Prospect. Granted, our sample size was hardly scientific. My general impression of TAP is that it is smart and earnest, tries to do some interesting things, but that its sensibility is compromised by a Beltway cocoon and a terminal Ivy League-itis (something I know tolerably well from first hand). It's sort of TNR shifted to the left.

You may recall that D. mentioned Mother Jones below, with the caveat that it was possibly too left wing for me. I took his lead and picked up a copy. To my curiosity and surprise, I liked it, and subsequent poking around the web site tended to confirm the impression, despite numerous obvious disagreements on political issues. Right now Mother Jones is leading the subscription stakes.

I think I know why: the hippie/green/labor influence on MJ suggests a grounding in lived experience, a personal warmth that the colder, more wonkish ideologies of TNR and TAP don't offer. I notice, for example, that there are lots of nicely produced ads in MJ for organic food co-ops, Burning Spear anthologies, and the like. While some might dismiss this in Cartmanesque fashion ("goddamn hippies!"), I find it comforting. The mag seems aware that aesthetics, folkways, agriculture, food and drink, the physical landscape around us, are part of our philosophical engagement with the world. Far from being marginal to a political magazine, these subjects implicate some of the same inward premises that help create our politics.

As I hope to discuss later, the same trait (in a very different context) attracts me to Chronicles, the principal paleoconservative magazine.[FN *] For all its eccentric and sometimes astringent stances, there is a personal quality, a groundedness in life in Chronicles -- what you might call a "performative conservatism", that is not found in, say, The American Enterprise or National Review. I liked what I saw of Mother Jones because it seemed to reflect a "performative liberalism."

More later. And by the way, though it comes much too late, my heartfelt congratulations to Feddie and his wife on their beautiful new daughter.

[FN *]: I haven't linked to Chronicles' web site because I find a lot of the content there harsh and unappealing. The magazine is much better. Perhaps it should be no surprise that paleos would be unable to put their best foot forward on a newfangled medium like the Internet. It makes for an interesting contrast with NR, whose website is snappy, state-of-the-art, and consistently readable, while the print mag, though solid enough, can get lugubrious. Also, the best stuff in the print NR is usually by NRO authors like Stanley Kurtz, Jay Nordlinger, John Derbyshire, etc. (I would have included Jonah Goldberg in that list, but let's be honest, his stuff has fallen way off since he got married. Domestic happiness: it'll get you every time. But I trust Feddie will brave it out unscathed.)

* * *

2003-07-29T17:16:00.000-05:00

No future for future market

Alas. I understand this was an opportunity for the Dems. to score points against the seemingly callous, hard-hearted, and political maladept administration. But, in my mind, DARPA's proposed future's market was a great idea, and one which we should not discard so likely.

Most of the opposition to the program arises from the "don't trade-off human life for money" moral heuristic. Cass Sunstein's protests notwithstanding, such moral heuristics make good sense when applied to, say, the judgments by jurors that a corporation's willingness to trade-off lives against safety ought to be punished. In that context, it is arguable that the jury's role is to distribute justice and positive social norms, not maximize economic efficiency. However, the ultimate aim of the proposed DARPA market would have been to maximize the amount of information we have about terrorists. This is a highly desirable goal, and we ought to carefully consider our moral heuristics, especially since we seem to be willing to relax all kinds of other prohibitions in the war against terror: (1) indefinitely imprison aliens and citizens who are working with the enemy; (2) assasinate enemy leaders, and accept mistaken attacks along the way; (3) torture (through, at the least, non-physical methods) enemy soldiers; and (4) holding hostage families of enemies. I don't know whether any of the above are moral choices, but they are more objectional, individually and in the aggregate, than allowing a few thousand people to bet against the house. People who bet on the terrorists will have their come-uppence sooner or later. Best yet, if truly catastrophic loss occurs, the debt will be uncollectable. Any objections should be practical ones. Tyler Cowen has an excellent post listing salient examples.

DARPA itself questioned whether it would be possible to use the market to stop terrorism. Their principal worry seems to be that it will be hard to design an efficient market that is explicitly subject to manipulation. That is, since the market knew that information gained would be used, wouldn't the smart bet be to short pro-terror bets as soon as they seemed mildly probable, on the theory that the government is watching? [And, since everyone knows that the smart long-bet is shorting terror, wouldn't decline in prices following a rise suggest that the market thinks that the government is acting, thus uncovering secret government projects].

There is an added risk to delegitimizing this program. Many legal scholars have advocated for increased use of cost-benefit like analysis by the government. If pseudo-CBA like the future's market are publically lashed, the CBA push will not go away, it will go underground. Where it will fester.

2003-07-28T18:07:00.000-05:00

I take it back

Feddie should be blogging, in any role he wants: law clerk, citizen, lawyer, dad, or (we may hope) a replacement when soon-to-be Judge Pryor retires. I should have written him privately and given him the benefit of the doubt before slamming him in public.

2003-07-24T10:08:00.000-05:00

Toads, Toadies, and "General" Pryor

I couldn't resist that title, even though I think I've exhausted the topic of the toad's status as a potential article of commerce. Instead, I'll invite a flame or two by discussing the partisan vote, yesterday, by the Senate Judiciary committee to recomend Bill Pryor to the Senate floor. Unless the democrats fillibuster, it looks like Pryor is headed to a seat on the bench. Where, I must say, he will do much less harm than in his current position. After all, in a little noted fact that should be seen as centrally important in this debate, he is getting nominated to the 11th Circuit. He is in the mainstream there. He is supported by both of his homestate senators. What's the big deal?

Professor Adler, no fool he, sees the real downside of a successful fillubuster: the dems might have elevated Pryor, like Sessions before him, to be a conservative hero, and given him a political boost in Alabama. Of course, Adler also says that Pryor is "a well-respected and well-liked state AG". It would probably have been prudent to qualify that Pryor is "well-respected" by people who agree with his substantive political positions, full-stop.

I have attempted, on this blog, to take the consistent position that the judicial nomination process is not a useful subject for posting. Basically, I see the nominating process as a larger version of the ultimatum game. The president cuts the pot. If he chooses a nominee who offers too little to the democrats, they reject the choice, disgusted at Bush's greedy attitude. Bush (and the republicans) take the attitude that such rejections are illegitimate because, in essence, he who can't cut shouldn't be choosy. I agree and I disagree. I think both players in the game are acting consistent with behavioral theory. To put it another way, everyone is doing what we would predict that they would. It follows, I think, that the overwhelming majority of those who criticize republican arrogance would vote democrat in the next election, and visa versa. Which means, at least to me, that most discussion on this topic is nothing other than saying, essentially, "hey, I'm going to vote for Kerry in a year and a half. But let me vent for a while now." Thus, when Feddie calls for war [scroll down to July 16] against the democratic party because of the way that they've obstructed the elevation of Pryor, we should not be terribly surprised.* I just don't find this discussion any more interesting than watching politicians make speeches to the empty Senate on C-Span.

But there are bigger issues to worry about that A.G. Pryor. For example, did the House of Represenatives really just pass a bill that would de-fund the judiciary if it tries to enforce the Alabama ten commandments decision? The press release says so. Such a bill seems plainly unconstitutional on its face on seperation of powers grounds. This is nothing like the jurisdiction stripping proposals which cause Fed Courts students such exam-grief. It is just the House, acting the fool, again. But on further consideration, I wonder who would have standing to challenge such a law. The plaintiffs in Glassroth? The Chief Justice (now *that* would be interesting)? Director Reyna?

P., comments?

*To be honest, that over the top post of Feddie's has really troubled me. I'm sorry to say that it led me to conclude that it really is not appropriate for law clerks to maintain blogs in which they discuss the judiciary.

2003-07-23T20:18:00.000-05:00

A Troubled Toad

The site you reference describes the troubled arroyo toad as previously thought of merely as "nocturnal [and] nondescript". But more recent researchers have appreciatively noted the arroyo's "musical trill", "which it uses to find mates" [what else]. And, as you no doubt were unaware, the arroyo is one of the "few true toads". The others are obviously frogs with identity issues brought about by global warming.

Isn't it weird that local populations of such unique creatures are said to be outside of the ambit of federal commerce clause protections, while widely spread, more populace, commonplaces like the white tailed deer can be regulated to the ends of the earth?

1. On your first question, I would recommend Mother Jones, but I think it might be too far left for you. It is too far left for me, at any rate.

2. I will look forward to your post of state courts and textualism. I think I'll take our countdown to destiny as an opportunity to relax our rule about judicial nominations, with a bit of a discussion about the Pryor nomination and the next member of the nine.

3. If you have time, I'd like you to read this and tell me what you think about it, from your more religious perspective.

2003-07-23T19:28:00.000-05:00

Some Coming Attractions

PLAINSMAN: I don't want to stir up any more trouble with the arroyo toads, which this site describes as "nocturnal, nondescript" creatures. Instead here is a preview of some posts I'd like to put up in the next nine days, as Sub Judice's countdown to destiny continues:

1. Observations about the national periodicals I subscribe to or purchase, which include (inter alia) First Things, Chronicles, National Review, The Atlantic, The New Criterion, and Food & Wine. I also want to solicit readers' suggestions as to which left-leaning weekly or monthly publication I should subscribe to. (I already buy Commonweal on occasion.)

2. A finished version of my long-incomplete post about state courts and textualism.

3. Thoughts on Grutter v. Bollinger.

* * *

2003-07-23T13:21:00.000-05:00

On politics and blogging

I recommend this quasi-eulogy about Blair on Slate. Kinsley misses, I think, the real reason why Blair is articulate and inspiring: part of his job is to convince his fellows extemporaneously during Prime Minster Question Time.

I haven't blogged for a while, mostly because there has been little I've been inspired to write about. Your Commerce Clause post, below, ties up some of the themes we raised earlier this year about facial challenges before and after the 1990s; but I found your discussion of toads to be less convincing, in part because I find it hard to imagine a world without the arroyo toad. P, are you suggesting that the poor Arroyo get off its butt, get on a plane, and start hawking its legs?

I still have not decided about the fate of this blog in your absence. Your excellent recent posts, however, remind me what I'll be missing. Howard too.

2003-07-22T14:53:00.000-05:00

Remember the Appellate Name Game?

PLAINSMAN: Longtime readers (by Internet standards) will recall the tolerable fun we had a while back with "SELYA, BLACK, and COFFEY, Circuit Judges" (that one was Mr. Poon's); "BRIGHT, WINTER, and STARR, Circuit Judges"; and the like.

Today Howard notes that "SMITH, SMITH, and SMITH, Circuit Judges" is a theoretically possible panel. 3d, 5th, and 8th Circuits.

Insert Matrix joke here.

* * *

2003-07-22T10:44:00.000-05:00

Judge Dave and the Arroyo Toads

PLAINSMAN: Hello, all; I'm back from a short, enjoyable out-of-state excursion.

There's some Commerce Clause news today from the D.C. Circuit. In concise opinions, Judge David Sentelle and Judge John Roberts (welcome!) each dissented from the denial of rehearing en banc in Rancho Viejo v. Norton. (Link via Howard Bashman.)

The panel opinion in Rancho Viejo upheld, against a Commerce Clause challenge, a federal regulation that prohibited a developer from "taking" or otherwise messing with the arroyo toad, a non-migratory, purely local species that has no commercial value. (I suspect it is highly valued by arroyo toads, however.) Apparently the panel's theory was that the regulation was effectively a regulation of commercial development activity, not of the "taking" of toads, and that this ostensibly commercial activity had a substantial effect on interstate commerce, and was therefore regulable under Lopez. The panel's decision conformed to a 1997 circuit precedent (NAHB v. Babbitt) to the same effect.

Judge Sentelle's dissent from denial of en banc argued that the circuit's law is inconsistent with Lopez and Morrison. It can't be the case that a noncommercial activity is subject to federal regulation when performed by a commercial actor, while the very same activity is nonregulable if performed by a noncommercial actor.

This is, indeed, a crucial fork in the exegesis of the Commerce Clause. The same issue popped up in the important Supreme Court case of Solid Waste Agency v. U.S. Army Corps of Engineers (2001). There the majority construed an enviromental provision that authorized federal regulation of the "navigable waters of the United States" as not authorizing the regulation of purely intrastate ponds and puddles frequented by migratory birds. Thus the victory went to a municipal corporation which sought to construct a disposal site on a federal "migratory bird" site.

This statutory interpretation was partly motivated by constitutional concerns: the Court thought it seriously questionable that the Commerce Clause would permit such regulation. The four dissenters, however, argued in part that the regulation was really a regulation of the disposal site's activity. As such, it regulated a commercial activity, which was subject to "aggregation" under Morrison, and was therefore OK under the Commerce Clause. This is very much like the D.C. Circuit's argument in NAHB and now Rancho Viejo, at least as Sentelle tells it. The Supreme Court's implicit rejection of this view in (I'll just say it one more time) Solid Waste Agency suggests that the D.C. Circuit's decisions in NAHB and Rancho Viejo may have rested on a false premise.

Judge Roberts took basically the same view in his dissent. But he added an interesting legal argument: that Lopez and Morrison must be read as having squarely rejected the panel's notion that the constitutionality of federal regulation may turn on whether a commercial or noncommercial actor performs an activity. This is so, Judge Roberts argues, because Lopez and Morrison were successful "facial" Commerce Clause challenges. Under current constitutional doctrine, he contends, a facial challenge can succeed only if the challenged law is invalid in all its possible applications (citing United States v. Salerno (1987)). But if the panel's emphasis on the commercial/noncommercial identity of the actor were actually relevant, then Lopez and Morrison would not have come out the way they did. Some applications of the challenged statutes in each case would have been constitutional (e.g., bringing a gun to school to further one's drug dealing business; or beating up women to further an extortion ring), so, under Salerno, the constitutional challenges would have failed.

This is quite thoughtful. I think it suggests what a boon it will prove to have Judge Roberts sitting on the nation's second-highest court. But in truth, Judge Roberts's argument is hard to assess, because we have no idea what the current law of facial challenges is. It's a mess. The constitutional law academy is rife right now with scholars trying to bring some sort of order to the proceedings. Salerno did indeed seem to announce a binding rule, but that rule has since been honored in the breach as much as in the observance. It's kind of like the Lemon Establishment Clause test: Salerno gets cited when the Court wants the facial challenge to fail; it goes uncited when the facial challenge wins.

In particular, the Supreme Court's abortion cases have notoriously undermined the Salerno rule, invalidating on their face statutes that were obviously constitutional in some of their applications. Stenberg v. Carhart (2000) is a recent example. And the Court's recent Commerce Clause cases are just plain opaque in this respect. The Court hasn't figured out how to think about enumerated-powers challenges in the traditional facial/as applied terms, so it doesn't. Instead it talks about the legislative "presumption of constitutionality," and encourages Congress to include jurisdictional hooks in federal statutes, which tend to convert as-applied constitutional challenges into less dramatic questions of statutory interpretation, if you get what I mean.

The lower courts are equally ill at ease. Readers will recall that one of the points of contention between Judge Reinhardt and Judge Trott in U.S. v. McCoy (9th Cir. 2003), was whether it was appropriate to uphold McCoy's challenge to the federal child-pornography possession laws as an "as applied" challenge.

I do not have an answer to this muddle yet. If forced to guess, I suspect that we are moving toward a new doctrine of facial challenges in which it is sufficient, at least in some areas of constitutional law, for the challenger to show that a "substantial majority" of the statute's applications are unconstitutional. I just made that standard up off the top of my head.

Nevertheless, Judge Roberts' legal argument from Salerno is reasonable. It's up to the Supreme Court to overrule or limit its own cases.

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2003-07-16T15:50:00.000-05:00

"What's Wrong With a Novel Having a Virtuous Heroine?"

PLAINSMAN: Why isn't Whit Stillman's Metropolitan (1990) available on DVD yet?

Such a great film. The Amazon.com reviewer makes the usual mistake: he thinks Stillman is engaged in a "stinging" and "cynical" sendup of these silly preppies and debs. No, he does think they're funny, but he thinks "sophisticated" film critics are even funnier. Stillman respects his characters and their WASP milieu, and his surface irony (which is very deft) is, paradoxically, a way to ease the viewer into something more substantial.

Austin Bramwell, of Ex Parte fame, published a nice essay about Metropolitan and Stillman's other films in First Things last year.

I tend to prefer Bramwell on literary and artistic stuff to Bramwell on law or politics. For example, he has mercilessly and effectively ridiculed Herbert Muschamp, the NY Times' architecture critic, on more than one occasion.

Perhaps we'll see his byline one day in the New Criterion.

* * *

2003-07-15T19:41:00.000-05:00

A Response to P's News

P's news today is no surprise to me. It is sad, as I have very much enjoyed being able to air our differences, and celebrate our agreements, in this forum.

I am undecided about continuing to blog in the absence of P. The blog would no doubt suffer in quality and quantity if I went it alone. However, we have invested some time in this project, and it would be a shame were the blog simply fade away. On the other hand, I might be able to focus on improving my productive time at work.

I would appreciate our readers' thoughts.

2003-07-15T17:49:00.000-05:00

Some Personal News

PLAINSMAN: After that rather long-winded post, I have some bittersweet news to tell you all. I will be leaving my current job in a few weeks to accept a job with the government, and I will no longer be able to keep blogging about legal matters. I've chosen August 1, 2003 as my last day of blogging here. The future of Sub Judice after my departure is currently up in the air. In fact, it lies in the hands of D.

Howard Bashman and other bloggers have engaged in a lively discussion recently about whether, and when, various ethical rules and policies restrict government employees from blogging about the law. I know that Steph at the Blue Blanket Blog, who is an appellate litigator for the EPA, has had to do a good deal of wrestling with these issues.

Without going into details about my future employment, I will say that my decision is based not so much on a specific rule or policy as on my own sense of what's appropriate and comfortable. Already in my present position, I've often refrained from commenting on certain topics for job-related reasons. In my future job, this will be considerably more true, to the point where it's probably best to abstain.

Man. Just typing "abstain" makes me realize how much I'll miss the intellectual stimulation of our readership, of other bloggers, and of my man D. (thankfully, he'll remain a phone call away). I will probably get even more choked up when my final blog day arrives. But for now we've still got a couple of weeks left.

I haven't even blogged about Grutter yet!

PS: While I am seriously excited for my future job, I will disclose that, alas, it is not the same job for which Prof. Kerr recently departed the Volokh Conspiracy.

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2003-07-15T11:02:00.000-05:00

The Nevada Case and the Guarantee Clause

PLAINSMAN:

I.
Most of you have probably been following the story of the Nevada Supreme Court's strikingly incorrect decision in Guinn v. Legislature. Eugene Volokh has been all over it, and rightly so.

To recap, the court granted permission to the legislature to ignore a duly enacted provision of the Nevada Constitution (art. 4, sect. 18(2)) that requires a 2/3 supermajority to pass new taxes. The Nevada legislature is currently at a budget impasse, and in the court's mind, the supermajority provision unduly interfered with the operation of an earlier-enacted constitutional provision that requires the state to maintain public schools. The court told the legislature that it could enact valid tax increases using a simple majority vote, contrary to the plain requirement of art. 4, sect. 18(2). Only one justice dissented.

Now, it is basic that (a) absent Supremacy Clause problems, state constitutions are the supreme positive law of each State, which the State's courts are obligated to enforce unless constitutional provisions conflict; and (b) later-enacted provisions trump earlier-enacted ones in case of a conflict. To make things worse, in this case, as far as I can tell, the Nevada constitution's supermajority provision and its public schools provision do not even conflict -- it may be practically disruptive to fund the schools under the 2/3 requirement, but it is entirely possible. For all of these reasons, the Nevada Supreme Court's decision is certainly wrong.

The rationale the court attempted to offer for its decision was: "[w]hen a procedural requirement that is general in nature prevents funding for a basic, substantive right, the procedure must yield."

But that's not so. Especially not if the "procedural" supermajority requirement (which, as Eugene points out, actually provides Nevadans with a substantive protection against unwarranted tax increases) was enacted by the Nevada voters after the "substantive" requirement was already on the books!

Anyway, the question is what to do about this shocking decision. Amending the state constitution is one avenue -- perhaps quixotic in light of Guinn. Eugene and others have pointed out that Nevada law includes fairly powerful procedures allowing for the popular recall of judges.

In any case, I agree with Eugene that a state-level, popular response to Guinn would be the best outcome. Nevadans, please don't put up with this! American judges are part of legitimate governance because they know and apply the law. They are not archons with arbitrary powers to make wise dispensations. You have the legal means to remedy this situation. Use it or lose it.

II.
While I would prefer a local solution, some of the aggrieved parties have taken the case to federal district court. They seek to enjoin the legislature from carrying out the decision in Guinn. I am not thrilled with this tactic, both on federalism grounds and because it seems part of the general "let the courts fix it!" response to most problems in American life these days. Nevertheless, the plaintiffs have already succeeded in winning a temporary restraining order from the federal district court.

It's interesting to contemplate the federal constitutional merits of their case. In particular, I want to see how far one could get in arguing that the plaintiffs have stated a claim under the Guarantee Clause of the U.S. Constitution, Article IV, sect. 4, which states that the United States shall "guarantee to every State in this Union a Republican Form of Government." (If you want to see how the plaintiffs approached this issue in their TRO memorandum, it's here, at pp. 7-8.)

The plaintiffs in the principal federal litigation have sued the legislature, not the Nevada Supreme Court (there is a separate lawsuit pending against the judges). They assert three claims:

First, that by enacting taxes according to simple majority vote (the unconstitutional procedure that Guinn authorizes), the legislature as a whole will dilute the votes of the legislators who would oppose the new taxes, their constituents, and the voters who supported the now-nullified constitutional supermajority requirement, all in violation of the 14th Amendment's equal protection clause. (The plaintiffs' memorandum cites the per curiam majority opinion in Bush v. Gore as an authority for this claim.)

Second, that by levying new taxes through a procedure that is plainly contrary to the Nevada Constitution, the legislature is depriving Nevadans of property without due process of law, also in violation of the 14th Amendment.

Third, and most interestingly, that by flouting a clearly valid, popularly enacted provision of the Nevada Constitution, on the authority of the Nevada Supreme Court's opinion in Guinn, the legislature is violating the Guarantee Clause.

Eugene has repeatedly expressed the view that the plaintiffs' federal constitutional claims are not going anywhere. "The federal courts have pretty consistently held that, outside some very narrow areas, the state courts are the ultimate expositors of state constitutions and state laws; the argument that 'The state courts improperly interpreted their own constitution' just doesn't work in federal court. Such misinterpretations are generally ... not Due Process Clause violations," he writes.

In general you can do a lot worse than to defer to Prof. Volokh's judgment in these matters. I'm not sure enough of my grasp of 14th Amendment voting doctrine to opine on the plaintiffs' due process or equal protection claims.

However, there is some precedent for the view that in rare circumstances the state courts are not "the ultimate expositors of ... state laws," especially when there is a specific structural provision in the federal constitution that seems to require federal supervision in these matters. To me the interesting parallel between Guinn and Bush v. Gore is not a parallel with the Bush per curiam opinion, which invoked the equal protection clause. Rather, it's with the separate concurrence of Chief Justice Rehnquist, joined by Scalia and Thomas.

I have always found the concurrence stronger than the majority opinion, even though seven Justices embraced the majority's EP analysis. Indeed, in my mind, the concurrence is what Bush v. Gore really stands for, for good or ill. The Chief Justice interpreted Article II, sect. 2 of the Constitution to require the Supreme Court to intervene when a state court issues a manifestly incorrect interpretation of the state's laws governing Presidential elections. And the opinion's critical passage also makes reference to the Guarantee Clause. It reads:

"In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. ... [I]n ordinary cases, the distribution of powers among the branches of a State’s government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U.S. Const., Art. IV, §4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them."

Interesting, eh? Now that's hardly a square-on endorsement. The Chief doesn't say that the Guarantee Clause, like Article II, could produce "exceptional cases" that require the federal courts to strike down usurpatious state court decisions. But the conspicuous citation of the Clause (by both article and section) in this, the critical passage of the concurrence, could easily be read to imply so.

Indeed, you might draw from the Bush concurrence the following meta-rule: it is proper for federal courts to engage in limited review of state law decisions by state courts when necessary to enforce a specific structural clause of the Constitution. The Guarantee Clause is arguably such a clause.

Of course, the big problem with this reasoning is that a number of old Supreme Court cases suggest that the Guarantee Clause is nonjusticiable. That is, whether a State's government was "republican" in form was seen as fundamentally a "political question," not a problem for the courts. See, e.g., Luther v. Borden (1849).

I must say I tend to be dissatisfied with arguments that certain plain textual provisions of the Constitution are judicially unenforceable. Rubs me the wrong way. Once you accept Marbury v. Madison and judicial review, then it seems to me the courts should apply the whole document, not just selected parts of it. If the Guarantee Clause is unenforceable on "political question" grounds, why not the Commerce Clause, too? Or if that prospect doesn't disturb you, why not the 14th Amendment's equal protection clause, as applied in the Warren Court's "one man, one vote" cases? Eminently political!

But I digress. Quite apart from my views, more recent Supreme Court cases have placed the view that the Guarantee Clause is nonjusticiable into some question. The plaintiffs in the Nevada federal case are relying chiefly on some language in New York v. United States (1992), a landmark federalism case. In New York, the Court struck down, on Tenth Amendment grounds, the "take title" provisions of a federal statute that aimed to coerce state legislatures into passing certain regulations for the disposal of nuclear waste.

However, the plaintiffs had also asserted a violation of the Guarantee Clause. Interestingly, Justice O'Connor's opinion for the Court did not reject those claims on nonjusticiability grounds. It considered the merits. O'Connor noted that many scholarly commentators had suggested that the Clause should be judicially enforced. In the end, she held:

"We need not resolve this difficult question today. Even if we assume that petitioners' claim is justiciable, ... the Act ... can[not] reasonably be said to deny any State a republican form of government. ... Under [the Act], Congress offers the States a legitimate choice rather than issuing an unavoidable command. The States thereby retain the ability to set their legislative agendas; state government officials remain accountable to the local electorate. The twin threats imposed by the first two challenged provisions of the Act ... do not pose any realistic risk of altering the form or the method of functioning of New York's government."

So suppose that the Guarantee Clause is justiciable, and suppose that the language in New York and the concurrence in Bush v. Gore accurately describes its limits. That is, the Clause prohibits governmental actions, including state court decisions, that make state government officials "[un]accountable to the local electorate," or that "risk ... altering the form or the method of functioning of [the state's] government."

Isn't that what's going on here? The case has an unusal feature: the Nevada Supreme Court admitted that if given legal effect, the Nevada Constitution (adopted by the "local electorate") would prohibit the levying of taxes without a 2/3 supermajority. Well, the levying of taxes is a pretty darn central "function" of government. Yet the court ordered the legislature to ignore this constitutional provision, without providing a remotely convincing justification for doing so. If this practice is accepted, doesn't it risk substituting the courts for the legislature as the ultimate source of positive law in Nevada? True, judges in Nevada are themselves elected, not appointed. But at the very least, redistribution of the authority to amend the constitution from one elected body to another would count as an "alter[ation] of the ... method of functioning of [Nevada's] government," which New York suggests would violate the Guarantee Clause.

That's as far as I can take it.

Now, if there is a Guarantee Clause claim in Guinn, it must rest on a unique feature of the case. The idea that there's a federal claim every time a state court simply does a really bad job of interpreting a state law is a nonstarter; it would obliterate (rather than merely qualify, like the Bush v. Gore concurrence) the notion of state sovereignty in adjudicating state-law questions. But the Guinn court did come rather close to admitting that it was just refusing to apply a valid law. It presented its judgment as an outcome of constitutional interpretation, but its analysis was conclusory and its interpretive techniques were utterly nonstandard.

I might pose a question to Eugene, and our readers who think the plaintiffs have not stated a Guarantee Clause claim. Suppose the Guinn court had said, in so many words, "despite its valid enactment, we are constrained to deny effect to art. 4, sect. 18(2) of the Nevada Constitution because the practical consequences of its supermajority requirement will be so negative." Would that give rise to a Guarantee Clause violation?

PS: Nevada's opposition briefs are also up now at the Claremont Institute website. I haven't had time to read them.

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2003-07-14T17:32:00.000-05:00

Watch This Space

PLAINSMAN: Tomorrow morning I'll have some news to report that will be of interest to readers of this blog -- at least those who haven't just put me on their blogger s*** list for dissing a niece's or cousin's name.

* * *

2003-07-14T13:23:00.000-05:00

Wittgenstein on Names

PLAINSMAN: This is not a law-related post. I thought about putting it up at Drink Me, but posting's been slow around here, and the subject matter is a bit more serious than the usual fare at DM.

"Esperanto. The feeling of disgust we get if we utter an invented word with invented derivative syllables. The word is cold, lacking in associations."

-- L. Wittgenstein, Culture and Value

There's been a lot of stuff on the blogosphere in the past few weeks about baby names, this year's popular names, etc. There was an interesting recent Times article about naming trends.

Naming is a sensitive topic, and I offer my opinions with the serene confidence that I am going to offend someone. I apologize in advance.

My philosophy of naming is the one that I think is implicit in the Wittgenstein fragment above. Play it conservative. Your child's name, whatever else it is, is like his best suit, her nicest formal dress. It will be his or her calling card in all situations, formal and informal, at age 6 and age 60. You should pick it with weddings, graduations, and future press conferences in mind.

Thus, I think parents should have to overcome a really, really strong presumption in favor of tradition before they try to do anything cute or "unique" with kids' names. Stick with the Bible -- New Testament if culturally / religiously appropriate; Old Testament in any case -- or with time-tested, vernacular names appropriate to your actual genealogy: William, Edward, Sean (IF Irish), Antonin, Omar, Hidehiko, etc. (And see below.)

Paradoxically, I think I take this view because I really like names. I like to think about them, to see the old etymological roots in their syllables.

Thus, names with "funny" spellings drive me up the wall. Modern-day names like Britney (Brytney, Brittnee), Madison (Madyson), etc., etc., leave me totally cold. (Madeleine, on the other hand, while a bit played out, is still a "real" name -- see Magdalene, Magdalena, etc. -- as long as it's spelled with some sort of proper orthography.)

Underlying most of the contemporary bad names is a natural and decent feeling of parental affection. One senses the irreplaceable uniqueness of one's child, and wants to give him or her a name that will reflect that fact. However, the names reflect a typically mistaken modern conception of individuality. The truth is that rich and meaningful individuality takes place within something larger: a religion, a culture, a language, a history, an art, a science, a tradition. Unmoored from these things, we're just interchangeable bundles of consumer preferences, buffeted this way and that by fads.

So, I think, it is with names. If you name your daughter Sarah, people will not think she is just like every other Sarah. Rather, each individual who knows her will compare her to the other Sarahs he knows, past and present, marking the differences. Your daughter's personality will become part of what he thinks of when he hears the word "Sarah." Anybody who's been in love knows this about names.

When our hypothetical interlocutor reads about Sarah in the Bible, he might reflect for a moment on your daughter. If he finds some princesslike quality in your daughter, he may tie it, in a poetic caprice, to the magic of her ancient name.

You won't get that with "Kaylee."

ADDENDUM: More complex issues are presented by the improvised names (many of which seem to place the stress on the second syllable) that many African-Americans today like to give their children, especially their daughters. I recall Eve Tushnet saying that she is a big fan of these names. To be honest, I cannot agree; they almost always sound tinny and unpleasant to my ears. And I don't think my reaction reflects an improper ethnocentrism. The problem with "Shawanda" is the same as the problem with "Madyson": it's like Esperanto, improvised words without history. If black parents want to look beyond Biblical and Anglo-Saxon names for cultural reasons, I understand, but there are plenty of impressive real names in Swahili and Arabic to draw upon. "Cassius Clay" wasn't bad; but "Muhammad Ali" is very powerful, a good press-conference name. By contrast, the improvised names tend to sound flat and ersatz.

The complexity here, which I have to acknowledge, is that unlike the rest of us, African-Americans were separated from ancestral history and tradition in a uniquely cruel fashion. Thus, the spate of improvised names might be viewed as an attempt to develop a tradition, sowing a crop of names, some of which may flower a couple of centuries down the road and become "real" in the sense I'm using here. That's entirely fair. I will just observe that, in the pragmatic here and now, names do make a difference, and many people respond more positively to an ancient name (of whatever culture) than to a name-of-the-day. The mind's ear can hear the centuries of use, at some subconscious level. Wittgenstein's point.

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2003-07-14T13:01:00.000-05:00

A Bit More on Lawrence and International Law

PLAINSMAN: D. has said more or less what I wanted to say about the international law dimensions of Lawrence v. Texas.

Like him (but more so), I was put off by Prof. Balkin's weirdly nasty and unconvincing outburst, to the effect that people like me are in need of psychoanalysis (his words: "visceral fear," "xenophobia," "bitterly," "No-Nothingism," "poisonous," "strike out ... by blaming" -- it wasn't a very long post, either), simply because we value some of the unique features of American society more than Balkin does, and we are deeply skeptical of American constitutional courts that make opportunistic invocations of legal norms crafted by unaccountable foreign jurists. Do you remember that point I made a couple of months ago, D., about certain liberals being appallingly quick to pathologize those who disagree with them? Prof. Balkin has provided an illustration of what I meant.

It's worth pointing out that in practice the "customary international law" gambit always pulls things in a more secular, atomized, social libertarian/economic welfare-state direction. Explicitly worded international treaties signed by the United States are one thing -- the Constitution makes them the law of the land. But "customary international law," especially in academic hands, often just looks like another liberal ratchet, to be invoked as necessary when a court can't get to a certain result using traditional legal materials. And actually, the use of international law in Lawrence wasn't even that intellectually respectable -- Kennedy, purporting to interpret the U.S. Constitution, stooped to citing a European court interpreting a European statute. Not convincing.

* * *

2003-07-08T20:41:00.000-05:00

2003-07-08T20:24:00.000-05:00

D:

International Precedent

I see there is a tide of discussion among law blogs about Kennedy's citation to the European Human Rights Court. See, e.g., NRO; Solum; Balkin. The NRO essay, which pretty much everyone I read criticized, essentially says that Lawrence is the beginning of the end for American jurisprudence. Not so, says Solum, citation like this is extremely common. And Balkin adds that not only is it common, it is righteous reciprocity - after all, the Canadian supreme court cites us.

Both Solum and Balkin appear to assume the following (which Balkin makes explicit): "What I think is going on is a certain visceral fear of something un-American creeping into the discourse of American constitutionalism. This is hardly the first time such xenophobia and No-nothingism have arisen in American history, or that the purity of the American Constitution and American sovereignty have been defended against the poisonous ideas and tendencies of foreigners. It arises everytime people feel confronted with change. They strike out at that change by blaming it on something un-American."

I disagree. I often agree with Professor Balkin; I admire his intellect and his politics; but all of this psychoanalysis strikes me as patronizing and shallow.

Let's look at Lawrence. The point that Kennedy for which the European decision was used was to refute a rhetorical claim in Bowers that "decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization". But, aha, contends Kennedy, the European court, five years before SCOTUS decided Bowers, held that private homosexual sodomy was protected under the European declaration of human rights. Thus, or so it goes, "the [European] is at odds with the premise in Bowers that the claim put forward [that homosexuals have the right to engage in intimate relations in the privacy of their homes] was insubstantial in our Western civilization." Good grief (or so P would say were P not busy working), how does that follow logically?

Let me put my biases on the table. I find Bowers offensive, and in particular the snotty dismissal of the right asserted (the right of homosexuals to have an intimate life free from state interference). White's decision got it wrong as a matter of substantive law (although that is a different discussion). He was also wrong on tone.

But really, just because there was a decision out of an ad hoc European human rights tribunal interpreting a European convention does nothing - neither persuasive, nor binding - to the factual contention in Bowers - that throughout the history of Western civilization, states have retained rights to criminalize certain intimate practices. Whether it means that White was wrong to be so cavalier about the claim, well, on that score he was just wrong. But we don't need a European tribunal to prove it.

But put that aside, and think a bit about how troubling it is that the Supreme Court is citing foreign precedent as undermining its own precedent (or worse, suggesting that its own precedent was insufficient when written). * Don't forget, it is our constitution that we're interpreting here, folks. Profs. Balkin and Solum, normally not ideological fellow travellers, are sanguine, because, they say, this happens between American states all the time and other countries do it too. But this doesn't carry water as an argument. The distinctions are obvious: states share (except for LA) a common-law system, many uniform laws (UCC; model penal code states; etc.); problems of federalism; problems of borders. That is why it is normal for them to cite each other's decisions - even though from my experience not common. Balkin says that inter-state citation is nonetheless functionally the same as citation by the Supreme Court of foreign precedent. I don't see it. I don't want my Supreme Court to go out looking at what other nations say about their Constitutions in order to determine the meaning of the social compact I'm a part of. Do you? States do it, rarely, but at least within the states there are overarching federal guarantees. I know that the Rhode Island's interpretation of the UCC will follow the same generally accepted principles as Pennsylvania. So it is ok to cite it as persuasive authority - it (at the least) isn't alien.

I know that people all over the academia are scoffing at the concept of constitutional sovereignty, but isn't there something important about requiring the Supreme Court to deal with American precedent and history - not just first and foremost, but only? Balkin points out that foreigners cite the Nine and other federal courts often. Good for them. I can think of a few reasons why: (1) their constitutions are modeled on ours; (2) they don't have written constitutions; (3) we're a cultural and legal hegemon; (4) we have Richard Posner; (5) all important questions in our society wind their way to our courts. But the points aren't reciprocal (especially #4). If foreign courts cite to the nine, well, I'd bet we're often cited like this: "The death penalty is abhorrent, of course, and can not be countenanced in civilized society. But cf. Texas v. LeBouf___ U.S. ___ (Any Year) (holding that President Bush could personally torture to death a condemned, innocent, Frenchwoman whose only "crime" was to protest the importation of genetically modified cornmeal)." We don't have to go out and borrow foreign citation practices just because they are useful to an argument. If there is a good point to make, then *make it*, don't say that the people of Ecuador think it.

This raises a deeper point about the common law. The common law - and constitutional adjudication is the common law in action -can only exist when judges agree to be bound by a shared, limited, set of precedent. Enlarging the universe of persuasive authority diminishes the authoritative scope of any given decision, its longevity, and its usefulness to lawyers. The point has been made elsewhere, and I won't belabor it here. (A good relevant book is Katsch's Electronic Media and the Transformation of American Law) The basic point is that common law judging, at some level, requires a limited sample set of tools to manipulate. It evolves, slowly, by the steady accumulation of like precedent, not the importation of entirely new cultural concepts. Balkin says that foreign law is just like law reviews, treatises, books, etc. Well, maybe. And maybe it isn't the best idea to be citing such material in the first place. Even so, there is a difference between citing a court and citing a law review. Everyone knows that law reviews aren't to be trusted are are cited just to make a judge look smart. [Kidding!]. But if you cite a court, it looks like you are following a court.

This leads into my final argument. People seem to treat this as harmless becaues it is merely "persuasive" authority". True. But nothing is binding on the Nine. Not what they say. Not what other people say. Not even what really really smart other people say about, for example, commercial speech. When everything is merely persuasive, what you cite as persuading you begins to seem like something that lower courts should be bound by. The emperor's wish is our command.

* For some other examples of such use of internationl law by the Nine, see, e.g, Atkins; Knight v. Florida.

2003-07-07T15:20:00.000-05:00

New law blog

PLAINSMAN: Since I mentioned the Craigmiles case in my last post, this is a good time to welcome Sixth Circuit Law to the blog fold. The author, a student at the University of Louisville's Brandeis School of Law, describes himself to reporters as a conservative. If so, he probably participates in Louisville's student chapter of The Usual Suspects; if not, I hope he will not think it forward of me to encourage him to sign up.

In any event, his blog has provided helpful and non-ideological summaries of recent Sixth Circuit decisions, as well as noting important amicus brief filings and related news articles. It looks like it will prove quite a useful resource.

With The LitiGator (from Michigan) and now Sixth Circuit Law, lawyers in the Michigan-Ohio-Kentucky-Tennessee area benefit from a good deal of specialized blog coverage. I hope this trend continues in other parts of the country.

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2003-07-06T13:57:00.000-05:00

D:

I had a lovely 4th. As I was watching a fireworks display with a large group, someone started spontaneously singing the National Anthem. And you thought you red-state folks had a monopoly on patriotic displays! Hah!

In Judicial news, as has been widely reported, S.D.O'Connor will not be retiring this year. Of possibly greater interest in that article is Justice Breyer's comments about the relevance of foreign law in interpreting the constitution. I think we should set aside some time to talk about this phenomena, which I have mixed feelings about. As your comments about Lawrence indicate, it sure seems like it can be misused in an entirely opportunistic way. And the fact that it is Breyer, rather than the far more intellectually rigorous Souter, who is pushing this gives me pause.

I agree with you, on further reflection, about Lawrence. At least in that the opinion is "lacking in power to persuade a lawyer who doesn't buy into it a priori". Of course, I'm not sure that persuading lawyers was the point. Rather, the opinion's sweeping rhetoric could be seen as intending to persuade a wider audience of non-lawyers, using the Court's unique position as a moral bully pulpit. It is in this role that it takes the most contemporaenous flak (think Dredd; Brown; Griswold; Roe; Casey; Romer). And such decisions are had to evaluate without the benefit of a great deal of time.

I did indeed "like" O'Connor's concurrence, and I was surprised that it didn't get more votes. Of course, that opinion also contained a principle that proves too much: "Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." But, as Justice Scalia points out, what she really does is apply rational basis scrutiny with teeth. I had a few questions.

First, why is that a prohibition on sodomy would satisfy heightened rational basis scrutiny if it was applied to both heterosexual and homosexual conduct? We know that the intended effect, and likely enforcement would disproportionately burden the latter group? Is this merely a Washington v. Davis issue?

Second, O'Connor approvingly cites Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112—113 (1949) (Jackson's famous articulation of why equal protection works). I wonder, have you seen any scholarship looking at Railway Express empirically? That is, where a state has been prohibited from singling out one group, and is forced to apply a law more generally, are their studies establishing that Jackson's intuition about the functioning of the democratic process are right? Or is this another of the law's untested propositions about the way the world should be (like, for example, holding the legislature's feet to the fire by refusing to strike down a poorly drafted law; or law and economist's idea that Congress fixes the distributive effects of legal rules by tinkering with the tax-and-transfer system).

2003-07-04T03:16:00.000-05:00

Happy 227th

PLAINSMAN:

"The Declaration of Independence of the Thirteen Colonies
In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

. . .

"We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor."

Does this radical document shed light on the legal issue we're discussing in Lawrence? Perhaps it does, from more than one angle.

A happy Independence Day, to all Americans.

* * *

2003-07-03T16:28:00.000-05:00

Interesting Lawrence amicus brief; and, What about Lochner?

PLAINSMAN: A few more thoughts prompted by Lawrence.

I.
The most thoughtful case I've seen made for the Court's result is the one presented in Prof. Barnett's amicus brief for the Institute for Justice. He contends that no "fundamental rights" analysis is necessary to strike down sodomy laws because they violate a principle that is much broader than the "sexual relationship" liberty that seems to underpin Justice Kennedy's result. Under Anglo-American law, Barnett argues, the police power simply does not extend to private, consensual, noncommercial, nonharmful conduct. His is a sort of originalist "enumerated powers" argument -- but a pretty radical one, since it applies to state governments, not just federal government.

Barnett writes:

"[T]here are countless private activities that are protected by no tradition or express constitutional provision. It would be unimaginable that they could be prohibited in a free society, even if some objection could be raised to them – cooking unhealthy meals, staying up too late, spending a slothful day drinking coffee and doing puzzles instead of accomplishing something productive. Indeed, almost anything that an ordinary person might spend his or her weekend doing, from gardening to cleaning to touching up house paint, would probably not qualify as a “fundamental” right. Yet such private activities, in the aggregate, are the essence of ordered liberty."

This is well put, and very persuasive as a matter of policy. Barnett proposes the Ninth Amendment as the site for these claimed limitations on the police power.

The problem is that if this sort of nonexplicit limitation is to be treated as law, there needs to be a firm originalist grounding for it. Barnett tries manfully to establish one, and heaven knows I'm not a legal historian, but my sense is that he does not carry the day. He cites a few general remarks of Madison a propos the Ninth Amendment, and some nineteenth century legal theorists about the limits of the police power. But as against the sheer historical weight of the sodomy laws and other pure "morals laws" that did exist both when the Bill of Rights was adopted and when the Fourteenth Amendment was ratified, I don't think this is enough.

II.
But Barnett's attempt to justify a broader constitutional principle of generalized "liberty" is thought-provoking in its own right. The late-20th century privacy cases all seem to hinge on the subject of sexual activity. Roe is something of an outlier, since it's arguably about the states' power to regulate private violence, not sex; but still, there's an obvious connection between sex and pregnancy. So, why the limitation to sex? The sweeping language that Justice Kennedy has unbosomed himself of in Casey and Lawrence is hard to confine so narrowly. "There are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. ... Freedom extends beyond spatial bounds." (Lawrence). The supertextual liberty identified in the Court's cases protects "choices central to personal dignity and autonomy" (Casey, mystery passage).

Well, then what about the freedom to engage, "outside the home," in a lawful profession without submitting to onerous economic regulations? What about the choice to enter into certain contracts -- as, say, a baker who agrees to work overtime? Are these "choices" not also potentially "central to personal dignity and autonomy"? Who are the Justices to say not? Sex is a vitally important "sphere," but so is work. The Fourteenth Amendment does not enact Mr. Freud's Civilization and Its Discontents.

You can see where I'm going with this: What about Lochner? Is there any principled basis left on which to oppose a resurgence of substantive Fourteenth Amendment review of economic regulation? Sure, it'd be controversial, but so is Lawrence (pace the Court).

To put things concretely, we might ask what light Lawrence sheds on Craigmiles v. Giles (2002), a striking recent decision of the Sixth Circuit. The court unanimously struck down, on Fourteenth Amendment grounds, a Tennessee statute that erected onerous licensing requirements on the sale of caskets. Basically, the court held that there was no reason you should have to go through two years of classes and interships in order to be permitted to sell a box to someone. Deeming the Tennessee regulation a pure monopoly scheme, the court struck it down under rational basis review. That decision is now the law of the land in four states.

Contemporary lawyers are taught to freak out at this stuff; we all get cautionary tales about Lochner from our con law profs. But I wonder whether Americans at large would share that view today. Perspectives are different from the 1930s; socialism is dead. I had occasion to explain the holding in Craigmiles recently to an intelligent nonlawyer, a Democratic voter who is quite far from being a free-market junkie, and she found it perfectly sensible and unremarkable. It took a good deal of explaining to indicate why many lawyers think it is remarkable.

I'd add in closing that the critique of such decisions on textualist grounds might not be as strong as is generally believed. The folks at Cato and IJ and the like have done a lot of historical work on the Privileges and Immunities Clause. They contend that, until it was essentially nullified by the Supreme Court in the Slaughter-House Cases (1873), the P&I Clause was meant to convey a set of "natural law" rights that did indeed include a liberty to engage in a lawful trade without undue government interference.

I'm not saying I accept this interpretation of the 14th Amendment. I simply haven't done the research. My point is just that there are legal and intellectual materials out there for a Lochner renaissance someday. It is not unthinkable. Justices Thomas and Rehnquist have expressed support for a rethinking of the Privileges and Immunities Clause (see Saenz v. Roe), and Justice Kennedy himself wrote an interesting separate opinion in Eastern Enterprises v. Apfel (1998) voting to invalidate an economic pension regulation on substantive DP grounds.

Might Lawrence pave the way? What do you think?

PS: Some of my musings in this line have been spurred by Prof. David Wagner's thoughtful bloggings in the past several days over at Ninomania. He's been on fire since Lawrence came down.

(Now if only he would fix his new, difficult-to-read blog format! The old Ninomania, with a light yellow background and larger, dark print, was a lot more user-friendly, in my view.)

* * *

2003-07-03T14:13:00.000-05:00

You've got to be kidding me

PLAINSMAN: I just lost a nearly complete post of about 1,200 words on Justice Kennedy's opinion for the Court in Lawrence v. Texas! And yes, I had been saving as I went along. But it's still all gone. Darn this new Blogger! It tells me to "report" the loss. Great.

Some of the things I wanted to say about Lawrence

My post was an attempt to walk through the intellectual failings of Kennedy's opinion, which I think is quite bad -- lacking in power to persuade a lawyer who doesn't buy into it a priori. It announces a result and then gropes around for analytic support, unsuccessfully. (E.g.: the European Human Rights Court reached a different holding from Bowers in 1981 under the European Convention on Human Rights. You don't say! Well, then Bowers must have been a wrong reading of the U.S. Constitution. Or this oxymoron: "we think that our ... traditions in the past half century are of most relevance here.")

I was disturbed by Kennedy's failure to discuss, or even cite, the Court's opinion in Washington v. Glucksberg (1997), the assisted-suicide case. Glucksberg held that only those unenumerated interests that are "deeply rooted" in the nation's history and tradition are protected by the Due Process Clause. Moreover, courts must not allow broad, abstract liberty claims to go forward, but must insist on "a careful description" of the interest asserted. Kennedy joined this opinion in full. Yet Glucksberg is far more consistent with the analysis and result in Bowers than with the analysis and results in Lawrence or Roe. So if you're going to argue that Casey "eroded" Bowers, as Kennedy does, then you need to acknowledge that Glucksberg "eroded" Roe and Casey. That was certainly how it was perceived by both liberal and conservative scholars. Kennedy does not do this.

One of the most important things about the American judiciary is that it has to operate within a structure of reasons. While this is its great strength and a chief source of legitimacy, it also gives judging a tragic aspect at times. Because judgments are connected, there are results that would be wise, moderate and sensible if achieved by a legislature that are disturbing and potentially destructive when imposed by a federal court. Overall, Lawrence strikes me as such a case. The Court's opinion makes me sad as a lawyer, even though it makes me happy as a policy result. The opinion is vague, evasive, and grandiose. The Court says its holding is limited (no constitutionalized incest, prostitution, gay marriage, etc. -- yet), but as Justice Scalia points out, the limitations are ad hoc and make the decision appear nakedly political and legislative. (As if to say: "we think the populace will accept this logical consequence of our privacy jurisprudence, but not the others, so we'll hold off on the others, though maybe we'll impose them, too, at a later time if we think they're a good idea and we can get away with it."). That is not a good way for a court of law to appear.

I don't think Justice Kennedy's a bad guy. I think he tries to get the cases right, and he often does. But that just points up the problem more acutely: what gets into the Justices in cases like this? I cannot imagine offering an opinion like Kennedy's to the world as my legal handiwork in such an important case. It is so full of conclusory statements, arguments that sputter out (see, e.g., Kennedy's attempt to contest the historical underpinnings of Bowers, which ends in a whimper) and awkward, pompous pontification.

Let me just say it: the problem may be that Kennedy, despite his good qualities, is not in the same intellectual league as Scalia, Thomas, Souter, and some of his other colleagues. I'm sorry to be blunt; I'm not saying he's a dummy, just that others have better legal minds. That can make a difference to the quality of judging: Professor Balkin had a nice post to this effect a few weeks back.

I wish that Justice Souter had written for the Court in Lawrence. Souter has thought long and hard about Justice Harlan's Poe dissent, as his Glucksberg concurrence makes clear. I think he would have produced a majority opinion (with endless footnotes) that would be worth arguing with.

Thus the first step in discussing Lawrence should be to try to come up with a better, more serious majority opinion. What do you think it would say, D.? Did you like Justice O'Connor's concurrence in the judgment?

PS: While Justice Thomas wrote an apt, succinct dissent in Lawrence, I found myself wishing anew that we could get Judge Kozinski on the Court. He would have gone to town in this case, calling forth hidden premises, boiling down arguments, shedding an unblinking, detailed light on the proceedings. And I would have felt better about it all, as a lawyer.

PPS: I'm really P.O.'d that I lost my prior post. There was a lot more analysis of Kennedy's opinion in there.

PPPS: I agree with D. that Scalia's Lawrence dissent was not great. Too much time at the outset sniping at the other Justices about Roe and stare decisis -- his points were fairly well taken, but they shouldn't have been the first thing in the opinion, and they shouldn't have gone on for seven full pages either. Scalia's been in the trenches too long. First it made him grouchy; now I fear it's starting to affect his perspective on the relative importance of issues.

* * *

2003-07-01T13:39:00.000-05:00

I'm Back

From a lovely week vacation a beach on one of our country's coasts and/or large inland lakes. It was refreshing. I did not finish, as I had hoped, an academic project that I would like to mail out soon. Neither did I succeed in avoiding a sunburn. However, I was able to relax, and sleep in, and play some basketball, all of which was just wonderful.

Oh, you wonder what I thought about the "biggest law week in recent memory?" I'll tell you, I'm conflicted. I loved the sweeping language in Kennedy's Lawrence opinion. I also love the Marshmallow Peeps I've got on my desk. Both are pure pleasure when first encountered, but grow rank with repetition. But the result was right, and Scalia's concurrence was I thought among his least analytically compelling. Scalia's main task should have been to articulate why it is necessary to analyze liberty interests at their most specific incarnations (e.g. the right to homosexual sodomy so disdainfully dismissed in Bowers) as opposed to the general levels of Roe and Lawrence.

On Grutter, I know that P is disappointed by O'Connor's expected pragmatism. I haven't read the decisions yet except in excerpted form, so I'll serve as P's foil when he comes out with the comments he's been stewing over. I confess I'm mystified by the 25 year dicta's relationship to the diversity rationale, so educate me!

In other news, I'm happy to report that my phillies are finally starting to win some games. On the other hand, as a philadelphia fan, I think this is a good moment to point out that whatever success we enjoy today, we will pay for it in August and September.

2003-06-27T13:24:00.000-05:00

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.

* * *

2003-06-22T21:33:00.000-05:00

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.

* * *

2003-06-22T12:46:00.000-05:00

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.

* * *

2003-06-21T17:28:00.000-05:00

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.

* * *

2003-06-20T16:49:00.000-05:00

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.

* * *

2003-06-20T16:30:00.000-05:00

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.

* * *

2003-06-20T08:38:00.000-05:00

D:

"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.

2003-06-19T01:19:00.000-05:00

D:

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.

2003-06-18T21:34:00.000-05:00

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.

2003-06-18T20:17:00.000-05:00

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.

* * *

2003-06-18T18:10:00.000-05:00

D
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.

2003-06-18T10:42:00.000-05:00

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."

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2003-06-16T22:53:00.000-05:00

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".

2003-06-16T22:14:00.000-05:00

D:

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.]

2003-06-16T21:56:00.000-05:00

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.

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2003-06-16T20:35:00.000-05:00

D:

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.

2003-06-16T12:21:00.000-05:00

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.

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2003-06-16T07:58:00.000-05:00

D:
[again, ignore]

2003-06-14T18:07:00.000-05:00

[ignore]

2003-06-14T17:45:00.000-05:00

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.]

2003-06-13T18:46:00.000-05:00

Fashion

PLAINSMAN: Blogger hoodies. That's the ticket.

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2003-06-13T11:43:00.000-05:00

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.

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2003-06-11T22:43:00.000-05:00

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.

2003-06-05T22:03:00.000-05:00

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.

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2003-06-04T21:17:00.000-05:00

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.

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2003-06-03T16:28:00.000-05:00

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.

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2003-06-02T21:09:00.000-05:00

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).

2003-06-02T14:36:00.000-05:00

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.

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2003-06-01T17:07:00.000-05:00

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.

2003-05-30T17:09:00.000-05:00

Some thoughts on your latest post

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

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

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

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

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

2003-05-29T15:34:00.000-05:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

2003-05-23T16:16:00.000-05:00

[testing. never mind.]

2003-05-23T09:43:00.000-05:00

D:
Time's Arrow

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

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

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

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

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

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

2003-05-21T17:23:00.000-05:00

Explosion at Yale Law School

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

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

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

* * *

2003-05-20T23:50:00.000-05:00

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

* * *

2003-05-20T20:16:00.000-05:00

D:

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

2003-05-20T09:50:00.000-05:00

Two Paths Diverged in a Wood, etc.

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

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

* * *

2003-05-19T12:09:00.000-05:00

More Dots and Dashes on Neoformalism

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

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

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

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

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

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

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

* * *

2003-05-19T08:54:00.000-05:00

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

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

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

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

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

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

2003-05-18T16:40:00.000-05:00

Neoformalism Is in the House; A Caveat on Stare Decisis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

2003-05-17T18:59:00.000-05:00

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

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

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

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

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

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

And here is Andre's verse:

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

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

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

(emphasis added).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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2003-05-17T15:44:00.000-05:00

Judicial Restraint

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

That is restraint.

2003-05-16T12:29:00.000-05:00

Beginning To See the Light *

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

* Velvet Underground reference in honor of Friday.

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2003-05-15T16:54:00.000-05:00

Reading List

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

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

2003-05-14T19:36:00.000-05:00

Federalism for me and for thee

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

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

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

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

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

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

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2003-05-13T10:15:00.000-05:00

D:

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

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

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

2003-05-12T16:20:00.000-05:00

Slim pickings

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

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

2003-05-08T13:30:00.000-05:00

A Nice Article on the Commerce Clause

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

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

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

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

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2003-05-07T17:34:00.000-05:00

Say What?

(via John Rosenberg's comments section)

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

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

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

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

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

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

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

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

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

Finally, this is a sloppy error:

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

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

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2003-05-07T17:27:00.000-05:00

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

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

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2003-05-07T12:56:00.000-05:00

Scary SARS Post

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

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

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

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

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

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

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

2003-05-04T22:18:00.000-05:00

Bamf

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

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

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

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2003-05-03T13:30:00.000-05:00

D:

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

Note: the following contains spoilers about the movie.

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

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

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

2003-05-02T20:08:00.000-05:00

D:

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

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

2003-05-02T15:59:00.000-05:00

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

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

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

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

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2003-05-02T10:57:00.000-05:00

D:

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

2003-05-02T10:42:00.000-05:00

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

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

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

2003-05-01T14:51:00.000-05:00

A great "Rules v. Standards" case

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

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

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

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

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

Go check it out.

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

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2003-05-01T14:09:00.000-05:00

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

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