The Volokh Conspiracy

In a forthcoming article on the law review placement process, Navigating the Law Review Article Selection Process: an Empirical Study of Those With All the Power

From today’s Seventh Circuit opinion by Judge Easterbrook in Nunez v. U.S. (thanks to How Appealing for the pointer):

A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment.

Is this the birth of a new professional pejorative? “He’s such a moose.” “She’s a total moose.”

On the other hand, later on the opinion suggests it disapproves of “a rule that a lawyer is the client’s puppet.” Especially not, I hope, a moose puppet.

Ingmar Bergman, one of the greatest filmmakers of all time, died yesterday at the age of 89. Here is the New York Times obit and a collection of Bergman-related stories. Libertas’ Jason Apuzzo has a remembrance here. An index of his work is available on IMDB here.

UPDATE: Michelangelo Antonioni died too. Daniel Drezner sees a plot.

From tonight’s interview with Larry King, via TPMMuckraker:

KING: The New York Times — which, as you said, is not your favorite — reports it was you who dispatched Gonzales and Andy Card to then-Attorney General John Ashcroft’s hospital in 2004 to push Ashcroft to certify the President’s intelligence-gathering program. Was it you?
THE VICE PRESIDENT: I don’t recall — first of all, I haven’t seen the story. And I don’t recall that I gave instructions to that effect.
KING: That would be something you would recall.
THE VICE PRESIDENT: I would think so. But certainly I was involved because I was a big advocate of the Terrorist Surveillance Program, and had been responsible and working with General Hayden and George Tenet to get it to the President for approval. By the time this occurred, it had already been approved about 12 times by the Department of Justice. There was nothing new about it.
KING: So you didn’t send them to get permission.
THE VICE PRESIDENT: I don’t recall that I was the one who sent them to the hospital.

  UPDATE: As some commenters note, Cheney’s statement is likely to add fuel to the fire over whether Gonzales was being truthful about the scope of the TSP. At the very least, it suggests an understanding within the White House that it was the TSP that was at issue in the now-famous hospital showdown.

Here’s a video someone (I don’t know who) made at an IHS event. Note that the video doesn’t include the entire song, which goes like this:

We’re doing battle with statists
Across the USA,
‘Cause everybody’s reading Hayek,
The man from Austri-ay –
In spontaneous order
We let the market play,
With the writer Fred Hayek,
H-A-Y-E-K.

We use the signals of prices
And then we’ll be O.K.,
‘Cause no one knows what’s efficient
Unless they have to pay;
If we replace that with planning
Like once in Russ-i-ay, [pronounced "Rush-Eye-Ay"]
We’ll take the road to serfdom –
Serfdom USA.

[Backup singers should at this point start singing, "Serfdom, serfdom USA, Friedrich H-A-Y-E-K."]

We still have government bureaus,
Just like the FDA, [replace with three-letter agency of your choice ending in A]
But the welfare state mindset
Will soon become passe.
Ayn Rand said he was evil,
Which makes him A-O.K. –
Friedrich August von Hayek, H-A-Y-E-K.

For another Hayek song, see here.

at least in the criminal investigation competition.

The hedge fund, run by the former manager of Harvard’s endowment, is liquidating after losing 57% of its value. Fortunately for Harvard, it had “only” 500 million dollars invested in this fund. This follows the high-profile collapse of two Bear Stearns credit market hedge funds, victims of the subprime debacle.

Well, Harvard can’t say it wasn’t warned. I posted on Feb. 27th: “[I]f I had my money in a hedge fund that even provided a hint that it invested in mortgage-backed securities, I’d be pulling my money out pronto. Remember Long Term Capital Management? These folks aren’t as smart as those folks.” [Concession: I can't tell from news reports what percentage of Sowoods' funds were in mortgage-backed securities, as opposed to other debt instrument.]

Note: Despite the allure of wishful thinking, even though I’m a homeowner now, I don’t think the housing bubble has finished deflating.

David Lat has an interesting post at Above the Law on the political leanings of law firms. I agree with David’s sense that most firms don’t care — which is to say that they reflect the view of the professional crowd drawn to that city, but they don’t make a big deal of it — but that D.C. firms are more likely to have a reputation as identifying one way or the other. DC is unusual in that a lot of people in DC firms want to go into government at some point. There’s a crowd that will to pick firms based in part on contacts they expect to make to help them get a job in the OTCMGE Administration, which results in some firms leaning towards particular parties.

  That’s my impression, at least: Lawyer-readers, what do you think?

Over at Concurring Opinions, Dan Solove has posted the latest “Law Professor Blogger Census.” The key point: the number of law professor bloggers continues to increase steadily.

  I wonder: Would you get the same impression by counting the number of posts rather than the number of self-identified bloggers? My very casual impression is that the number of professors who are members of a blog is growing, but the set who post regularly is still very small. That’s my sense, at least: I only read a small subset of law blogs, so maybe I’m wrong on this.

Missouri just enacted a new statute (2007 House Bill 820, revising Rev. Stat. Mo. § 546.720), which provides in relevant part:

3. A person may not, without the approval of the director of the department of corrections, knowingly disclose the identity of a current or former member of an execution team [i.e., a group of people chosen to perform executions] or disclose a record knowing that it could identify a person as being a current or former member of an execution team. Any person whose identity is disclosed in violation of this section shall:

(1) have a civil cause of action against a person who violates this section;

(2) be entitled to recover from any such person:

(a) actual damages; and

(b) punitive damages on a showing of a willful violation of this section.

A state is free to demand that its employees, and others with whom it contracts, not reveal certain confidential information. It is probably also free to impose civil or even criminal liability for people who violate such confidentiality obligations — consider, for instance, the law barring the disclosure of income tax records. But a state may not punish third parties (such as reporters, commentators, activists, bloggers, and the like), who never entered into any confidentiality agreements, for revealing accurate information about whom the state is using to perform this important government function.

Perhaps in rare circumstances a state may restrict publishing employees’ names when doing so would risk violent attack on the employees, though even there I have argued the First Amendment should generally prevail, since knowing even the names of undercover policemen and the like can often be important for the public’s evaluation of government actions. I’m unaware, however, of any real risk of violence to people who are on execution teams, nor is the law limited to situations in which such a risk of violence is present.

Nor should this speech be punishable, I think, on the grounds that whoever republishes it must be aware that it was originally illegally leaked by some government employee. First, sometimes the information may indirectly come from incautious statements by the execution team members themselves, or their relatives or friends who know the team members’ identities. But second, the government generally may not punish the redistribution of speech by third parties simply because the original leaker was violating some confidentiality obligation — if it could, then a wide range of investigative journalism, for instance reporting on corporate or government misconduct, would be legally punishable, on the theory that it reports on information that employees were duty-bound to keep confidential. See generally the Supreme Court’s decision in Bartnicki v. Vopper for a discussion, albeit not entirely conclusive, of a related issue.

Of course, people who participate on execution teams may suffer social ostracism or even private discrimination — not from me, but perhaps from some people who are strongly opposed to the death penalty. But the government may not punish people from publishing accurate information simply because this information might prove embarrassing and socially troublesome for some people.

And this is especially so when the information is connected to such an important government activity, and may be relevant to whether it’s being carried out soundly. The Missouri law, according to a New York Times story published yesterday, was enacted following a controversy over supposedly flawed executions: “A Missouri doctor who had supervised more than 50 executions by lethal injection testified last year that he sometimes gave condemned inmates smaller doses of a sedative than the state’s protocol called for, explaining that he is dyslexic. ‘So it’s not unusual for me to make mistakes,’ said the doctor, who was referred to in court papers as John Doe I.” The identity of the doctor may be quite relevant to deciding whether the state was negligent in using him; and the identity of doctors who deny making mistakes may be relevant to deciding how credible they are.

Thanks to M. Louis Offen for the pointer.

Germany has decided to phase out subsidies for the domestic coal industry over the next decade.

For decades, German lawmakers have propped up the industry, unwilling to risk massive layoffs and reluctant to eliminate a reliable energy source as gas and oil supplies become scarcer.

But after spending more than $200 billion in subsidies since the 1960s, the federal government this year decided that the practice had become unaffordable. The 2018 sunset for the hard-coal industry was set.

Economists and free-market lawmakers have long decried the subsidies as handouts to the politically influential coal industry and powerful trade unions. This year, for instance, Deutsche Steinkohle AG, the owner of the remaining eight mines, will receive more in government subsidies ($3.3 billion) than it will from selling coal ($2.9 billion).

With just 32,000 miners left, that’s the equivalent of more than $100,000 in annual subsidies per worker.

As bad as U.S. coal subsidies are (and I’d like to see them phased out too), Germany’s sound worse. At least U.S. coal companies are profitable.

I find myself more or less in agreement with Ruth Marcus, at least based on what we know so far. As I’ve said before, more than once, I think Gonzales should resign as AG. But based on the public record, the allegations that he committed perjury seem pretty weak to me.

Stuart Taylor thinks that Senate Democrats are being short-sighted on judicial nominations, and that their actions may come back to haunt a President Clinton or Presient Obama:

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative? . . .

If “too conservative” is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then “too liberal” will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

I would add to Taylor’s argument an additional reason why the Senate Democrats’ approach is particularly short-sighted: As a campaign issue, judicial nominations has been a more successful campaign issue for Republicans than Democrats. In both the 2002 and 2004 elections, judicial confirmations were an issue that helped motivate the Republican base and boosted GOP candidates in tight Senate elections.

As I have said before (perhaps ad nauseum), I believe that Senate “advice and consent” should be fairly deferential, and I do not believe that ideology is a reason to reject highly qualified judicial nominees. Insofar as judicial philosophy should influence judicial selection, I believe it should influence the President’s selection of nominees, not the Senate’s decision on whether to confirm that nominee.

Among other things, I believe there are many reasons why the Executive is more likely to take a “long view” in assessing judicial philosophy than is the Legislature, and is less likely to focus on specific judicial controversies. Some of these reasons were suggested by Alexander Hamilton in Federalist 76.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office, and you shall have the one you wish for that.” This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

Others relate to the fact that Presidents are term-limited, whereas Senators are not — meaning that Senators are more likely to have to “live with” the decisions of confirmed judges for a longer period of time than the President, and therefore may be prone to consider how a judge will address specific issues. Thus, executive branch interviews of judicial nominees include broad discussions of judicial philosophy, whereas Senators routinely try and pin judges down on specific issues, sometimes even specific cases.

Such arguments aside, Taylor is clearly correct that Senate Democrats are creating conditions for future judicial nomination fights with their treatment of Southwick and other Bush nominees.

UPDATE: I have already addressed most of the objections of the questions raised in the comments in prior posts on judicial nominations. I summarize my views in this post, which includes links to prior posts with greater detail. (See also here.)

I recognize the difficulty of convincing either side to engage in “unilateral disarmament.” My suggestion — which I have made before but is hardly original with me — would be for a Senate resolution endorsing a given set of rules to take effect after the next Presidential election. If done far enough in advance, there is the possibility that there would be enough uncertainty about which party would control the White House (and the Senate) that each side might agree, but it would require substantial political leadership to make this happen — and the window for such a deal before the 2008 election is rapidly closing.

The subtitle of my new book is “Use Incentives to Fall in Love, Survive Your Next Meeting, and Motivate Your Dentist.” You can order it here.

Eugene asked me to write a few posts on the book; I thought I would start by citing an Economist.com characterization:

An earlier generation of these books, like Steven Landsburg’s The Armchair Economist and David Friedman’s Hidden Order, tackle the economic puzzles of everyday life by applying good old-fashioned price theory to novel situations. Many of the new spate of pop-econ page-turners reflect the maturation of economics as an increasingly empirical science. Freakonomics is the exemplar of this shift. But Cowen’s new book, which may seem superficially similar to old-style pop-econ, in fact integrates a great many of the insights of Levitt-style work, as well as insights from behavioral and experimental economics... Cowen’s synthesis of these new insights adds up to a level of psychological realism heretofore unseen in the pop-econ genre. If Cowen succeeds in offering excellent cute-o-nomic advice, and I think he often does, it’s because economics as a whole is now generating a more empirically adequate picture of the world. For those of us weird enough to love economics, that’s better than cute: that’s beautiful.

I would go further: we won’t make much more progress on the macro issues without first understanding the micro-complexities of everyday human life. Why are nominal wages sticky at the macro level? In the United States at least, it’s not mainly about long-term contracts or government regulation (those do play a role, however). It’s more about morale, the need for workers to feel in control of their situation, and perceptions of fairness. If you want to understand what is happening in the BLS statistics, you’re not wasting your time if you are hanging around the water cooler and listening to what people have to say.

According to the AP:

U.S. Chief Justice John Roberts, the senior judge in the United States, was reported alert and fully recovered from a seizure and fall at his seaside summer home, in which he experienced minor scrapes but no serious injuries.

Supreme Court spokeswoman Kathy Arberg said Monday that Roberts, 52, would remain overnight in a hospital in the northeasternmost U.S. state, Maine. “It’s my understanding he’s fully recovered,” said Christopher Burke, a spokesman for Penobscot Bay Medical Center, where Roberts was taken. . . .

Roberts was taken by ambulance to the medical center, where he underwent a