Saturday, July 23, 2005

Is there a vacancy on the Court until Justice O'Connor's resignation is effective?--

At Bench Memos, there is an interesting discussion of whether the Senate can confirm Justice O'Connor's replacement until her resignation is effective. Matthew Franck writes:

Ed Whelan speculates about the effects of a delay in Judge Roberts's confirmation, and along the way he notes that Justice O'Connor's "resignation is effective only upon her successor's confirmation." I'm not sure that is altogether true. It may be what O'Connor said, but that doesn't make it so. Some legal scholars I know had an e-mail discussion of this a while back, and here's what I conclude from it.

O'Connor's July 1 letter to President Bush declared that it was "to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor." If those last nine words are understood as setting a condition on her retirement, such that she continues in office and would take part in the next October Term of the Court if Roberts' confirmation were delayed or defeated —- or even if Bush gave Roberts a recess appointment, since that would lack "confirmation" —- then O'Connor has created a classic Catch-22.

Here's why. Title 28 of the United States Code, section 1, reads: "The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." Article II, section 2 of the Constitution tells us that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." For the president to appoint, there must be a vacant seat, whether just vacated or newly created. No tenth seat has been created. If Justice O'Connor remains in her seat today, then there is no vacancy among the nine available seats, and President Bush's nomination of Roberts is a legal nullity. And since there is no legally cognizable nomination for the Senate to act upon, there is no possibility of a confirmation, and Justice O'Connor has been pulling our legs and isn't leaving the Court after all. What a fun three weeks we've all had for nothing!

But of course this is not how the world understands the present situation, and rightly so. President Bush has considered the O'Connor seat vacant since July 1, and has duly nominated Roberts to fill it, and the Senate is poised to go through the confirmation process. These actions speak louder than O'Connor's words, and it is those words that should be considered a legal nullity. There is in fact a vacancy, and she cannot set a condition that would make it otherwise, remaining on the Court as one of the associate justices. Come what may, she's off the bench, and has been since July 1. I never thought Justice O'Connor understood legal principles with any particular clarity, and she departed from the Court in just such a way as to prove me right.

Ed Whelan thinks there is no problem, so long as there is a vacancy when Bush makes the appointment, which there would be since O'Connor's resignation is effective at confirmation.

There is another argument to be made: precedent. Chief Justice Earl Warren announced his resignation in 1968 (with the hope that LBJ would be able to replace him), to be effective when his replacement was confirmed, which didn't happen until June 23, 1969. So Warren officially resigned the same day that CJ Warren Burger was sworn in.

Franck argues that O'Connor has been off the bench since July 1. With Warren having served for essentially a full term after having tendered his resignation, I think that O'Connor would be allowed to serve until her replacement is confirmed, whatever one thinks of the merits of Franck's statutory analysis.

UPDATE: Among the bloggers who have linked to this are Tom Smith at the Right Coast and Armen at DeNovo. So far I'm sticking with my original position — that the Earl Warren precedent would govern, that a justice may resign contingent on his or her replacement's confirmation.

Yet I would expect that this problem must occur with other presidential appointments, so there should be a substantial number of non-judicial precedents that might push the answer strongly one way or the other.

Friday, July 22, 2005

Frye rule in New York:

New York courts continue to be leaders in applying the Frye general acceptance test broadly to all sorts of expert testimony. While the Court of Appeals has not yet spoken, New York may be the strictest Frye jurisdiction in the country, applying Frye about as strictly as federal court apply Daubert.

"I'll Bet You Thought This Post Was About You":

Althouse has this cryptic post, which prompted a Commenter on her blog to utter the phrase in the subject line.

Which reminds me of a joke I heard a comedian (do we still use the term "comedienne"?) tell once. She was observing that with the song "You're So Vain" Carly Simon was really putting Warren Beatty in a bit of pickle. Once the song comes out, he has two choices--either he can admit that he is, in fact, so vain that he probably "thought the song was about him." And if he doesn't admit it, then Carly is going to write a follow-up song for the next album, "You're so stupid, you didn't even realize the last song was about you." Either way, he's stuck.


I had always understood that this song was about Beatty, but as noted in the Comments, apparently Carly Simon has never actually verified this. According to this, she has officially denied that it was James Taylor.

Criminal Mischief:

Not your typical, everyday charge of "criminal mischief":

PITTSBURGH -- Police have flagged a man for an illegal quarterback sneak.

Authorities said Brian Jackson, 31, dated two women by pretending to be Pittsburgh Steelers quarterbacks Ben Roethlisberger and Brian St. Pierre.

Jackson, arrested Friday, was charged with harassment for allegedly continuing to contact both women after they learned of the ruses. He was also charged with criminal mischief for allegedly ruining a Steelers jersey owned by one of the women's neighbors when he signed his worthless rendition of Roethlisberger's autograph on it. The jersey was worth $75 before it was signed, police said.

Here's the interesting legal theory in the case--by signing the jersey with his worthless "autograph" he ruined a $75 jersey, thereby giving rise to a criminal mischief charge.

The Pittsburgh Post-Gazette adds:

He's not 6-foot-5. He's not 23. He doesn't wear No. 7. And he doesn't have a goatee. In fact, Brian Jackson doesn't resemble Steelers quarterback Ben Roethlisberger in any way.

What I want to know is who is this supposed Stiller fan who owns a Roethlisberger jersey--but doesn't even know what Roethlisberger looks like?

New NBA Minimum Draft Age:

Mike McCann at Sports Law Blog has an interesting chart and some reflections on the new NBA minimum draft age, looking specifically at patterns of NBA players getting in trouble with the law (a proxy for personal maturity). Mike has been critical of the NBA's decision to raise the draft age with the intent of excluding kids from going straight to the NBA out of high school and his evidence presented here makes a pretty strong case.

His conclusions:

First, college education does not appear to diminish the probability of a player getting in trouble with the law.


Second, players appear more likely to get in trouble with the law towards the middle and end of their careers than at the start.


No matter the interpretation, it doesn’t appear that the recent decision by the NBA and NBPA to raise the age of NBA draft eligibility from 18 to 19 (or one year out of high school) will improve the overall law-abidingness of NBA players. If anything, actually, this data suggests that it might have the opposite effect.

My view is that raising the draft age by one year will likely just increase the corruption in high school and college basketball. If I had to predict, I suspect that the response will be to just increase the bidding among the Oak Hill Academy-type programs for players to do one year of prep school or for lower-ranked schools to try to grab guys for one year. Either way, I suspect that the corruption in the system is likely to increase.

Overall, I think that raising the draft age by one year will likely have some serious unintended consequences. They may have either been better off keeping it the same and allowing high schoolers to go straight to the pros or moving to an NFL-type system where kids actually have to commit to college for a few years. The current compromise seems like the worst of all worlds.


In the spirit of confirmation battles spawning a new lexicon (e.g., "Borking") the Washington Times reports today on what some Republicans are calling "Estradification"--requiring the Justice Department to turn over internal legal memoranda written by Roberts while he worked in the SG's office. The refusal by the White House to surrender these sorts of documents was the basis for the Estrada filibuster (hence the name) as well as the current Bolton stalemate.

Regardless of the merits of the request, it seems highly unlikely that the White House will surrender these documents. The tone of the article suggests that even though the request held up a vote on Estrada (which was much lower profile), few seem to believe that the refusal to turn over these documents would support a filibuster on a Supreme Court nominee. I haven't followed the exact nature of the Bolton request closely enough to say whether what is being requested there is similar to what may be requested here and in the Estrada situation. So far, it looks like this has not come to a head, so it could turn out to be a non-battle.

Personally, the request for internal Executive Branch documents for judicial confirmations always seemed like a bit of stretch to me. It also seems like it would be a stretch to me to request draft opinions and other non-public deliberation papers from Roberts's time as a Circuit Judge, as opposed to published opinions. The major problem in both situations, of course, is the institutional harm that such requests would have on the internal deliberations of the Executive or the Judiciary if people knew they could come out later.

I looked around a little bit, but I haven't found any legal commentators who think that requesting these sorts of documents is appropriate. During the Estrada filibuster seven former SG's of both parties spoke out against these requests and the use of the filibuster in relation to it. If someone has identified a persuasive argument as to the propriety of requesting these internal memoranda, please note it in the Comments. Overall, my impression is that this is one of those places where there is fairly uniform agreement that it seems like a bad idea to go there. But it may be that someone out there is making the argument and I just haven't come across it.

So my sense is that this issue likely won't reach escape velocity in terms of leading to a filibuster, but it may be one stealth technique that is on the table to try to combat what so far seems to be pretty successful stealth nominee, especially because it did seem to work on Estrada and so far seems to be successful on Bolton. If the request is not made, however, then that seems to create problems of its own, as then it seems to raise the question of why the failure to turn over those documents was definitive in the Estrada (and perhaps Bolton) situation, but is not requred for Roberts. So the question is whether the refusal to surrender the documents in this case would be prejudicial to the Democrat's request to surrender those documents in the other cases and their willingness to filibuster nominations where the documents are not produced. But perhaps there's a difference between what is being requested in the various cases that supports a filibuster in one instance but not the other.


Several people in the Comments have clarified that the Bolton situation (which, as I noted, I haven't followed the details that closely, but was mentioned in the Washington Times article) can be distinguished from Estrada (and presumably Roberts). So I have stricken the Bolton references in the post.

Roberts on the NewsHour: On July 3, 1997, John Roberts participated in a panel discussion of the recently completed Supreme Court term on the PBS NewsHour with Jim Lehrer. The transcript is here, courtesy of Jack Lewis. When asked whether the Supreme Court was conservative, he offered the following response:
  Well, I think it’s a moderate court but one that is very serious about the limits it sees in the Constitution, whether it’s the limits on Congress, limitations on the federal government, or limitations on the court, itself. And if it’s a court that doesn’t seem so warm and embracing of theories that are popular on the law school campuses, I hope the other members of the panel will forgive me for not thinking that’s a serious flaw.
"Public" Arbitrator:

A good friend of mine, a plaintiff's lawyer, tells me that he thinks one of the biggest problems with NASD arbitration is that the "public arbitrators" rarely represent the public, and, indded, they often have ties of various sorts to the securities industry. Putting intentional bias aside, such associations can certainly skew one's perspective. (E.g., I've met several individuals over time who are very liberal on just about every issue except employment law, because they represented defendants in employment law cases and gradually adopted their clients' perspectives on these cases. It's hard not to; I've seen respected attorneys sincerely spout absolute drivel, because they became mentally so attached to their clients' position.)

NASD panels are supposed to be composed of one "non-public" industry representative and two public arbitrators. The NASD has new rules trying to decrease the public arbitrators industry ties. The rules, among other things, "Exclude from the public arbitrator roster attorneys, accountants, and other professionals whose firms have derived 10 percent or more of their annual revenue in the previous two years from clients involved in the securities-related activities."

However, there is no requirement that the "public arbitrators" individually not receive all or most of their own business from such clients. Thus, the law firm bio for the ["public arbitrator"] chairperson of my arbitration panel states that his assignments "have included representation of a defendant in civil, criminal and administrative proceedings arising from The Wall Street Journal insider trading case, a major utility in securities class actions arising from the Three Mile Island incident, issuers and underwriters in securities class actions arising from public offering or trading of securities, banks in letter of credit litigation and other matters and insurance companies in construction of policies."

So, under NASD rules, a "public arbitrator" can, for example, spend his entire career representing defendant corporations in securities law cases, so long as his firm does a lot of other things. But a plaintiffs' employment attorney whose firm happens to do ten percent of its business in municipal bond underwriting could not be a public arbitrator. Bizarre, no?

In my father's case, he did not get any of the individuals he requested as arbitrators, so the arbitrators were chosen by NASD. A reform suggestion: the NASD should train individuals, some lawyers, some not, with no ties to plaintiff's or defendants, in securities law, and have these neutral individuals serve as arbitrators, picked randomly from a pool.

Roberts Files Dissent in United States v. Jackson: Judge John Roberts filed a dissent in a Fourth Amendment case today that is pretty interesting as an example of his style as a jurist. The case, United States v. Jackson, is very fact-specific: the only issue is whether the facts of a particular traffic stop amounted to probable cause to search the trunk of a car. Judges Judith Rogers and Harry Edwards, two of the more liberal judges on the D.C. Circuit, said no. Judge Roberts said yes.

  On the merits of the probable cause determination, my own sense is that this was a pretty close call. Based on current law, I think Roberts was probably right. At the same time, the doctrine calls for a judgment of probabilities, and reasonable people with different experiences can disagree.

  In this case, the defendant was driving a car with stolen tags and the license plate light out. He didn't have a driver's license on him, and his license was suspended. The police tried to find a registration for the car, but found no evidence the car was validly registered. The police arrested the defendant, and then — and here's the tricky part — they searched the trunk of the car, and found a gun. The defendant was then charged with a gun possession crime.

  The legal question is, at the time that the officers searched the trunk, was there a fair probability that there would be additional evidence in the trunk? In the majority opinion, Judge Rogers says no — it's just pretty unlikely that there would be additional evidence of the crimes the police knew about at the time of the search. Judge Edwards concurs, offering his own sense of the low likelihood that there would be evidence in the trunk, and adding in some rather grand rhetoric about the importance of upholding the Fourth Amendment.

  In his dissent, Judge Roberts argues that the common sense of the facts created a fair probability that some kind of evidence would be in the trunk of the car. The situation at the traffic stop was pretty darn suspicious, he notes, suspicious enough that there was a pretty good chance evidence of crime would be in the trunk. The officers had pretty good reason to believe the car was stolen, for example — it was, as it turns out — and if it was, some kind of evidence of who owned the car and who had stolen it would probably be in the trunk. Given the facts of the situation, the officers were justified in looking there.

  What is particularly interesting about Roberts' dissent is its style. He uses a number of techniques to emphasize that this is a fact-bound common-sense inquiry, not a question of high theory. For example, at one point he uses humor to break through the formal reasoning and draw attention to the common sense of the situation:
Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action.
  He makes much the same point through a citation to Holmes:
The majority doubts the rationale for replacing a stolen vehicle’s real tags with stolen tags and therefore discounts the inference that the car might have been stolen. Op. at 10. But lawyers learn early on that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). Officer Garboe’s history with stolen tags had confirmed that they, more often than not, led to real tags in the trunk. The reported cases confirm that criminals often use stolen tags on stolen cars. This history is enough to support the officers’ inferring from the stolen tags and the lack of any registration (current or expired) linking Jackson to the car that the car might well have been stolen.
  Finally, Roberts goes out of his way to express his view that the right answer in the case should derive from a straightforward lawyerly question of applying law to the facts, not of a general commitment to the Bill of Rights or of helping the police fight crime. Here is how he responds to the rhetorical passages in Judge Edwards' concurrence:
  I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment’s place among our most prized freedoms. See Conc. Op. at 1, 5. But sentiments do not decide cases; facts and the law do. There is no dispute here on the law: if the officers had probable cause, they did not need a warrant; if they did not have probable cause, no warrant would issue in any event. As for the facts, the officers encountered at 1:00 a.m. an unlicensed driver operating an unregistered car with a broken tag light and stolen tags. The experienced district court judge concluded — and I agree — that "the circumstances were suspicious enough to amount to probable cause to search the trunk." Memorandum Order, at 5. Right or wrong, nothing about that determination reflected insensitivity to constitutional values, any more than a contrary determination would have reflected insensitivity to the needs of law enforcement.
  I respectfully dissent.
  A nice touch, I think. Thanks to Howard for the link. (Oh, and it may be worth pointing out that the case was argued in April, and Roberts has been sort of busy recently, so the chances are very high that he wrote this dissent long before he was nominated.)

  UPDATE: One more notable aspect of the opinion is the paragraph criticizing Judge Rogers for discussing what the police should have done to get probable cause. It's a very Harlan-Bickel-Legal Process point about not wanting judges to go beyond the facts and law of the case. He writes:
  Finally, my colleagues’ insistence that police should have further questioned Jackson amounts to prescribing preferred investigative procedures for law enforcement. We have neither the authority nor the expertise for such an enterprise. See United States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985) ("creative judges engaged in post hoc evaluations of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished" (internal quotation marks omitted)). In the end, I would leave the judgment as to what lines of inquiry ought to be pursued to the officer himself, and judge probable cause on the facts as they are, rather than on what they might have been had the officer pursued a different course.
[Puzzleblogger Kevan Choset, July 22, 2005 at 12:16pm] Trackbacks
Three Countries in a Row:

The Final Jeopardy! clue a few weeks ago was the following:

On the Globe

Moving west from Canada, the next 3 countries through which the Arctic Circle passes

For the answer, click below:


My challenge for you is this: There is a place in the United States where, if you travel in a straight line in one of the four cardinal directions, the first three foreign countries you hit will all start with the same letter of the alphabet. Where is that place, what direction must you travel, and what are the three foreign countries?

FIFA World Soccer Rankings:

I'm excited, but skeptical, of the latest FIFA World Soccer Rankings, which has the U.S. ranked 6th (up 4 spots) ahead of France, England, Germany, Portugal, and Spain, among others.

Professor Roberts? recalls John Roberts law school days at Harvard. One of his classmates recalls:

Barrack, Rodos & Bacine partner Mark Rosen remembered that John G. Roberts had two goals when the two young men were classmates in their first year at Harvard Law School -- becoming a professor at the law school or serving on the U.S. Supreme Court.

"It's up to him to say whether he got the consolation prize," Rosen said, just a day after Roberts was nominated by President George W. Bush to replace Sandra Day O'Connor on the Supreme Court.

His undergraduate History thesis advisor adds:

"He did not have that sort of showy type of intelligence," Strasbaugh said. "It was more of a controlled, thoughtful, not-aggressive type of intelligence."

I have wondered whether legal academia today (perhaps even more than other academic fields) tends to place an undue premium on a "showy type of intelligence" as opposed to "controlled ... not-agressive type of intelligence." I don't know, of course, whether this has always been the case. But it is my impression that this is the case today (there's no empirical test for this assertion, of course, so I could be completely wrong).

But compare, for instance, former appellate attorney Roberts to former Professor Scalia--who, I think we can all agree, has somewhat more of a "showy type of intelligence." From how he is described, one can guess that if Roberts were a professor today, he would likely be a doctrinally-oriented scholar and probably hornbook writer. In fact, Roberts does teach as an adjunct professor. These folks seem to be less-highly valued in the market today than interdisciplinary thinkers and theorists. If I am correct that law schools today tend to value "showy" intelligence as opposed to quiet intelligence, it seems to follow that we are inadvertently turning away some extremely able people from the academy.

On the other hand, given the institutional arrangement of modern law schools, it may be that this bias in inevitable. In particular, for whatever reason, law reviews today seem to overvalue novel, glib, and clever articles in the market, thus it may be that to the extent that the law school hiring process selects for "showy" intelligence, it may be an efficient response to peculiar market in which we sell our services, i.e., law reviews.

So, while at first glance the relative absence of people like "Professor Roberts" seems like a market failure in the professorial hiring market, it may be perfectly rational in light of the peculiar market for which future scholars are being selected. Today, it seems we find people like John Roberts teaching as adjuct professors (and I might add, these adjuncts are usually very popular with students who appreciate their attention to craft as opposed to bombastics) and passing along lawyering skills, whereas the profile of tenure-track professors looks completely different and selects for "showy intelligence."

Sunstein on Hayek:

Cass Sunstein, guest-blogging for Lessig this week, has had a number of posts on Hayek (here and here). Most of the posts have actually been on why certain institutions, such as blogs, open-source software, Wikipedia, etc., are not actually Hayekian information-processing mechanisms. That is correct. There is a fundamental difference between a Hayekian information-processing mechanism, such as the price system, and the type of information-processing mechanism that Sunstein is exploring.

Oversimplified, the distinction is between those systems where the purpose is simply to centralize dispersed knowledge in one place versus systems that centralize knowledge for the purpose of decentralizing it again.

[Continue reading "Sunstein on Hayek" under hidden text]

MoveOn is collecting signatures on a petition against John Roberts.--

MoveOn is collecting signatures on a petition opposing the confirmation of John Roberts:

Oppose John Roberts' Supreme Court Nomination

In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people. Working for mining companies, Roberts opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be "overruled," and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion. That's why we believe:

"The Senate must not confirm right-wing corporate lawyer John Roberts to the Supreme Court."

MoveOn has a list of talking points against Roberts as well.

USA Today Poll finds initial support for Roberts.--

USA Today reports that 51% of Americans polled consider the nomination of John Roberts excellent or good (tip to RealClearPolitics):

An early sampling of public opinion found support for Roberts, but also a desire for more information about his views. A USA TODAY/CNN/Gallup Poll of 625 adults Wednesday found:

•51% called the choice excellent or good; 34% called it fair or poor; the rest had no opinion.

•76% said they needed more information before they could decide whether his views were “mainstream.”

•74% felt it would be appropriate to ask Roberts about abortion at the hearings. The poll has an error margin of +/— 4 percentage points.

If MoveOn, the Alliance for Justice, or the People For the American Way decide to run TV ads opposing Roberts, I would expect this to change. Progress for America already has a 30-second pro-Roberts commercial ready to run for a week.

My reading of the climate right now is that without a significant change, the Democratic senators believe that Roberts will be confirmed. While many do not want to confirm a nominee who is likely to be more conservative than Justice O'Connor, many of those most vocal in oppposing Circuit Court of Appeals nominees said that they would confirm judges if they were in the conservative mainstream. Because Roberts is in the conservative mainstream, Democratic senators would find it hard to vote against Roberts in good conscience, especially most of the members of the Gang of 14.

So one question is whether Democratic senators will support Roberts in order to garner good will to fight a future nominee tooth and nail. My guess is that it depends on whether there is a big TV ad campaign against Roberts. If there is, then there may well be enough cover to make the campaign against Roberts a nasty one in the Judiciary Committee. If there is no big TV ad campaign, then I think it will go relatively smoothly for Roberts--a lot of grumping and showboating, but few real fireworks. But a major negative TV ad campaign is a real possibility, and it could change the dynamics considerably.

The New York Times Loves John Roberts: Yes, seriously. If you haven't seen it yet, check out this detailed biography of John Roberts from the Thursday New York Times.

Thursday, July 21, 2005

Government's Brief in Solomon Amendment Case: The Justice Department has filed its brief in the Solomon Amendment case (the one involving miliary recuiting at law schools). The brief is available here (.pdf -- via Marty Lederman). The government's case is the easier one to make, but still, it's a good brief.
John Roberts Does Not Belong To The Federalist Society: The Washington Post reports:
  Everyone knows that, like all good Republican lawyers, John G. Roberts Jr. is a member of the Federalist Society, the conservative law and public policy organization where right-of-center types meet to denounce liberalism and angle for jobs in the Bush administration.
  And practically everyone — CNN, the Los Angeles Times, Legal Times and, just yesterday, The Washington Post — has reported Roberts's membership as a fact. One liberal group opposed to Roberts's nomination, the Alliance for Justice, has noted it on its Web site.
  But they are wrong. John Roberts is not, in fact, a member of the Federalist Society, and he says he never has been.
  This part of the story is particularly funny:
  Upon reflection, some Federalist Society members conceded that they had never actually seen Roberts at meet-and-greets such as the society's annual black-tie dinner.
  "That's a good question, let me think. Now that you mention it — no," was former Bush Justice Department official Viet Dinh's response when asked if he had ever spotted Roberts at any Federalist events.
  Hat tip: ACSBlog.
Higher Punishment, Lower Conviction Rate (Another Arbitration Post):

It's well-known that if punishments are too harsh, triers of fact will be less willing to convict, so long as they are aware of the punishment. [Almost] no one would want a burglar to face the death penalty.

An analogous problem can come up in NASD arbitration. If a brokerage employee is named in an arbitration, and the defendants lose on any count, this goes on the employee's public record. Apparently, this is a big deal, because folks go to a lot of trouble to get arbitration records expunged when they win on all counts.

At my arbitration, the defendants' attorney emphasized in her closing argument that the defendant broker had not previously been subject to an arbitration, and that unless the arbitrators ruled for her side on all counts, he would have a black mark on his record.

In my dad's case, this may or may not account for the arbitrators' failure to even rule on the very small claim that was obviously legitimate, and may also account for the funny ruling on the bond issue, each discussed in previous posts. My father, at least, got the distinct impression that this issue weighed heavily on the arbitrators' conscience. Certainly, defendants' in-house counsel, very experienced in these matters, thought this would influence the arbitrators.

Regardless of what effect it had on my father's claim, the system I've described puts a lot of pressure on arbitrators to rule against Claimants on small claims. Why harm someone's career, I'm sure they say to themselves, over a few hundred or a few thousand dollars (easy for them to say, it's not they that were harmed)? Of course, if brokerage houses know that this is arbitrators' attitudes, they have no less incentive [Update: well they do have the incentive to avoid the costs of arbitration, counterbalanced against the desire for a reputation for fighting each claim to the death] to settle small but legitimate claims.

I can think of a several ways around this problem, but none of them seem satisfactory.

Related Posts (on one page):

  1. "Public" Arbitrator:
  2. Higher Punishment, Lower Conviction Rate (Another Arbitration Post):
  3. Arbitration Arbitrariness:
  4. Arbitration Lost:
Behind on Correspondence: For the past month, I have been deep into writing a new major work on the Ninth Amendment, entitled, "Five Originalist Models of the Ninth Amendment." (When it is ready in August, you will hear about it here first and I will make it available to everyone on SSRN.) So I have been blogging light of late, and am way behind in answering emails received over the past several weeks. While lecturing next week in Germany, I hope to be able to catch up, but I may overlook someone. My apologies to anyone whose thoughtful email goes unanswered.

I do have a tip for correspondents. Any email that requires any substantial effort to answer is likely to be read, appreciated, and saved for a later time, which may or may not come. The easier is the response required, the more likely it will receive an immediate response and won't end up getting lost in my overflowing inbox. I always regret when this happens, but it inevitably happens sometimes.
Roberts Won't Bork Himself: After wading through Judge Roberts' judicial opinions, Larry Solum has reached the following conclusion: Judge Roberts won't Bork himself.
Congressional Bill on Sentencing Would be 2d Amendment Disaster:

And it would be pretty bad for lots of other civil liberties as well, including the principle of punishment proportionate to the crime. And for the principle that the government should not force family members into becoming informants against each other. The bill is H.R. 1528, which has already passed a subcommittee, and is ready for consideration by the House Judiciary Committee. Mike Krause and I dissect the bill is a new Issue Paper from the Independence Institute.

Sunstein on Roberts: Over at the Los Angeles Times LiveCurrent blog, Cass Sunstein writes:
  Judge Roberts has a first-rate mind and by all accounts he’s a wonderful person. In addition, his opinions to date are excellent and they show a healthy respect for people who disagree with him. It’s far too soon to reach any final conclusions — the process has just started — but Judge Roberts combines quality with a fine character, and that’s certainly something to applaud.
Were the latest London bombs made incorrectly?--

An interesting account from Sky News about the bomb on the double-decker bus:

Security sources have told Sky News that a high explosive was found on the bus, similar to that used in the July 7 attacks.

They said the strong smell of acetone would have sparked fears of a chemical attack.

And the smell indicated that the explosives had been made up incorrectly, with too much acetone and not enough peroxide.

Witnesses to the explosion said there had been a bang followed by the smell of smoke.

By the way, acetone is the primary ingredient in nail polish remover (if you are wondering what acetone smells like).

Other accounts of the bombs on the trains also mentioned a chemical smell. And early reports suggested that perhaps only the detonators exploded. This Sky News story suggests that the reason for the smell and the small size of the explosions may have been faulty bomb-making.

Arbitration Arbitrariness:

As several VC readers have pointed out in the comments section in response to previous posts, NASD arbitration awards are notoriously arbitrary. How arbitrary? I've already mentioned that the arbitrators' ruling managed to completely ignore a small claim that the other side essentially conceded, with no explanation for this omission. Consider also the following: It was undisputed (indeed, admitted by the respondent broker), and backed by documentary evidence, that my father called his H&R Block Financial Advisors broker and requested that he purchase for him a 7.625% Household Finance Corporation bond at par that he saw on the internet. His broker, after checking with the bond people at Block, informed him that "no such bond existed", and instead sold him a bond from the same company at par for 7.5%. A letter from Block in our possession stated that my father was sold the highest-yielding bond "in inventory." The evidence was ambiguous at the hearing as to whether the higher-yielding bond was available that day when my father called, or only became available later that same day. But note that my father was not told that the bond "is not available right now" but that it "didn't exist" (and that my father must have confused the APR with the yield).

At the hearing, Block denied that the the bond was in fact in inventory, despite the prior admission to the contrary. It's possible, given the letter noted, that Block in fact dumped a bond in inventory. It's also possible that that Block sold my father a 7.5 percent bond at par that they purchased below par just to sell it to him, knowing (or maybe not knowing) that higher-yielding bond at par was about to hit the market. But even if there is a much more innocent explanation for the confusion, Block was certainly negligent, and at the very least Block engaged in an "innocent misprepresentation," which, as I noted in a brief (which the arbitrators, so far as I can tell, completely ignored, as they cited no precedents in their ruling), is a valid cause of action under governing Michigan law and under the investors' agreement my father had with Block.

All the arbitrators say in their ruling is that my father could not succeed in this claim because they determined that the 7.625% bond was "unavailable" when he called (I'm pretty sure this isn't correct, but, as I said, the evidence was ambiguous). Given that the actual claim was that he was told not that the bond was not available yet, but that the bond actually didn't exist, and given the fact that he certainly would have waited a few hours to purchase a bond from the same company, also at par, at a higher yield if he had not been told this, I don't at all see how this settles the issue. Again, consider the innocent misrepresentation issue. The elements of innocent misrepresentation are: a transaction between the parties (yes); representations that are false in fact and actually deceive the other (yes); detrimental reliance (yes); and benefit obtained by misrepresenter from the deception (yes, a significant commission and perhaps more). Pretty simple.

I'm sure jury verdicts are at least as arbitrary, perhaps often more so, than are are arbitration awards. Indeed, the arbitrariness of jury awards is the major reason why I'm not a big fan of civil juries, especially when it comes to damages. But the jury system is able to survive, in part, because the juries do not provide explanations for their rulings, giving them a lot of immunity from criticism. Now that NASD arbitrators are providing rationales for their awards, but (at least in my case) making up facts, relying on documents not admitted into evidence, not ruling on claims raised in the Statement of Claim and at the hearing, ignoring briefing, and relying on nonsequitors as discussed above, I wonder how long the system will last. VC reader comments suggest that defendants often find arbitrator awards equally arbitrary--it all depends on the panel you get (more on that, perhaps, later).

BTW, if you are now, or are considering becoming, an H&R Block Financial Advisors customer, consider whether you want to deal with a company that gives you misinformation about a bond, then stubbornly insists that it's your fault for relying on their information!

UPDATE: In case you were wondering, NASD proceedings are not confidential: "Absent an agreement or order to the contrary, parties are generally free to disclose details of their own proceeding as they see fit."

Further UPDATE: Just looking at an article I wrote a long time ago expressing some of my concerns with the jury system. Remarkable how many of them apply to NASD arbitration. First, the use of juries to decide civil cases undermines one of the most important values of civil law, certainty. A jury trial, as any trial lawyer will tell you, is a crapshoot; one can never predict what combination of principle and prejudice will motivate the jury. [This is what I hear from attorneys about NASD arbitration panels.] Juries, moreover, do not and cannot officially explain the reasons for their decisions, so their verdicts have no precedential value. Nor are juries bound by judicial opinions rejecting prior claims based on the same evidence. [same with arbitration panels] Judges, however, face certain constraints that juries do not. First, as noted previously, judges, unlike juries, must justify their rulings in writing. A judge motivated by political or other illegitimate considerations will nonetheless need to issue an opinion justifying his result on legal and logical grounds. [NASD arbitrators now write brief opinions, but they don't seem to need to justify rulings on anything in particular.] If the judge cannot do so, a higher court will overrule him. Juries, however, can base their rulings purely on whims, and their verdicts are upheld if the victor can point to any evidence supporting its position. [NASD arbitrators are not even subject to that constraint.] Judges are also constrained by the fact that their written opinions are publicly available. Even the least-principled judges are usually constrained by concern about their professional reputations. Lawyers generally take a big salary cut when they become judges, but gain the nonpecuniary benefit of the respect and prestige that attends judicial office. It is therefore a rare judge indeed who desires to be the subject of negative commentary. [When is the last time you saw public criticism of an NASD arbitrator, who, in any event, have other careers?]

There is, of course, a big difference between juries and arbitration panels, which is that the parties to an arbitration contractually agreed to it. But I haven't argued that my father should not have been required to go to arbitration, and I don't see any inconsistency between thinking arbitration can be a good thing, thinking arbitration contracts should be enforced, and suggesting that the current system of arbitration could be vastly improved. Indeed, when even many defense attorneys state that they would rather litigate in federal court then go through arbitration, you know something is amiss.

If I were NASD, I would either make arbitration a wholly equitable forum, thus explicitly warning parties in advance that arbitrators are free to do whatever their gut tells them is right, or provide a forum that more closely follows the law.

Expectations Versus Realities of the Confirmation Picture: On July 1, co-blogger Todd had a very good post offering a quite reasonable prediction: there was going to be a brutal confirmation battle regardless of who Bush nominated to replace O'Connor. Todd wrote:
  Reading the tea leaves, it seems clear that there will be a brutal confirmation battle regardless of who is nominated. At this point, a confirmation battle will be supply-side driven--the interest groups have the money already, and they are going to spend it one way or the other. And then try to raise some more. And the politicians are going to try to raise money by pandering to these same players. No one is going to roll over on either side just because a particular nominee is thought to be "moderate" rather than "conservative".
  The credentials or qualifications of the particular nominee under consideration will be largely beside the point.
  If my sense of things is right, though, Todd's quite reasonable prediction looks like it may turn out to be wrong. It looks like there probably won't be a brutal confirmation battle over John Roberts, even though Roberts is generally understood to be conservative, and Roberts' credentials and qualifications are a part of his appeal. Here's the Washington Post today on the reaction to Roberts's nomination:
  An array of interest groups on the left began mobilizing opposition to Roberts, but reticent Senate Democrats demonstrated little eagerness for an all-out war against him. Some Democratic senators laid the groundwork for a struggle focused on prying loose documents related to Roberts's career in government and using any resistance by the administration against him. Yet as the day progressed, Democrats seemed increasingly resigned to the notion that they cannot stop his appointment.
  The key barometer came from members of the Gang of 14 senators who forged a bipartisan accord in May to avoid a showdown over lower-court appointments. Two Republican members of the group, John McCain (Ariz.) and John W. Warner (Va.), said the Roberts selection would not trigger the "extraordinary circumstances" clause of the agreement that would justify a Democratic filibuster.
  ;Under Senate rules, a filibuster would be the only procedural way the minority party could stop the nomination. By the end of the day, though, Democrats held out little prospect of a filibuster.
  "Everybody ought to cool their jets on this and let the process work," said Sen. Ben Nelson (Neb.), a Democratic member of the group. "Going in, it looks good" for Roberts, he said.
  The question is, what happened? I can think of a bunch of possible reasons why the early signs are pointing away from a brutal battle. Here are two.

  First, Roberts is not an unknown quantity in DC, and has not lived in a Republican cocoon. Many Democrats know him and like him, leading to lots of water cooler conversations that resemble this excellent post from Brad Joondeph at Supreme Court Extra. It's hard to man the battle stations in light of reactions like that.

  Second, I suspect that the Rehnquist retirement rumors are helping Roberts. Everyone is assuming that within the next year or so Chief Justice Rehqnuist will retire, meaning that the Roberts confirmation is just the first round in a two-round series. I'm not a political strategist, but my sense is that this makes things more complicated for Democrats who may want to oppose Roberts now. If Roberts is on the reasonable end of the likely nominees Bush may name, then it makes some sense to scrutinize Roberts but then let him through, saving energy for the real battle in the next round.
ThinkProgress has some great posts on Roberts.--

The blog ThinkProgress has some superb posts on John Roberts (and other Supreme Court issues). For a new blog, they have certainly hit their stride quickly.

Severus Snape and Harry Potter book 7:

That's the subject of my new essay analyzing the Harry Potter and the Half-blood Prince, the sixth book in the series. Don't read the essay unless you have finished the sixth book. If you have finished it, my essay will show that many of the mysteries left to be resolved in book 7 have actually been hidden in plain sight in book 6.

More Attacks in London: Here is the important story via CNN.
  Four "explosions or attempts at explosions" have hit three London Underground stations and a bus two weeks after the July 7 terror attacks, the city's police chief has said.
[Puzzleblogger Kevan Choset, July 21, 2005 at 11:26am] Trackbacks
Supreme Names:

What has been the most common first name among Supreme Court Justices? (Click below for the answer.)


There's a 46-way tie for last place, including a Lucius, a Melville, and a Ruth.

A Catholic Plurality on the Court:

Today's Washington Times has the most extensive write-up of Roberts's youth that I have seen (and it isn't very extensive):

Judge Roberts grew up in Long Beach, Ind., near Lake Michigan — a community where Bethlehem Steel managers lived. In high school, he was an excellent student and athlete, named as captain of the football team as well as editor of the school's newspaper. He graduated from Harvard summa cum laude in three years and received his law degree magna cum laude from Harvard Law School.

At 50, Judge Roberts — if confirmed — would be the youngest associate justice currently on the court. He also would be the 11th Catholic to serve on the high court and join with Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy in outnumbering Protestants on the court for the first time.

According to the Indianapolis Star, Judge Roberts attended a Catholic boarding school in Long Beach, Ind., then transferred to La Lumiere, at the time an all-boys Catholic boarding school near La Porte, Ind. He graduated from there in 1973.

But Judge Roberts considers his faith "a private matter," said Shannen Coffin, former deputy assistant attorney general during Mr. Bush's first term.

"He is not going to approach the law as a Roman Catholic, nor as a white male," Mr. Coffin said. "John is a practicing Catholic but like most Catholics, he doesn't wear his faith on his sleeve. He is a man of deep and personal faith, but he'd also say he'd like to leave it at that."

Judge Roberts' wife, Jane Sullivan Roberts, also is an attorney. From 1995 to 1999, she was an executive vice president for Feminists for Life, a 33-year-old pro-life group based in the District. She still serves as legal counsel for the FFL board.

"She's a brilliant attorney and we're very proud of her service to Feminists for Life," FFL President Serrin Foster said. "She's smart. There's a very Kennedyesque feeling when you look at them and their kids."


A couple other profiles here and here.


Wednesday, July 20, 2005

How Roberts Voted on the DC Circuit: Over at The Supreme Court Nomination Blog, Kevin Russell, Anisha Dasgupta and Brian Fletcher have looked at John Roberts' complete voting record on the DC Circuit, and conclude that it didn't show any particular ideological patterns:
While Judge Roberts agreed most often with some of the court's most conservative members (agreeing nearly 100% of the time with judges Ginsburg and Silberman), he agreed nearly as often with some of its most liberal members (agreeing 95% of the time with judges Rogers and Garland). The two judges with whom he disagreed the most were relatively liberal judge Edwards (disagreeing in whole or part 18% of the time) and quite conservative senior judge Williams (10%).
  Of course, as they note, it's hard to read too much into this: Roberts has been on the DC Circuit for only a brief time, and a very high percentage of DC Circuit opinions are unanimous.
Comments on Who is John Roberts? I published the post below without activating comments, which I discover you cannot do after the fact. So I am doing so here for comments on that post.

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Coulter on Roberts: Ann Coulter has decided to try to help the confirmation of John Roberts by criticizing Bush's decision to nominate him: "[Bush] has given us a Supreme Court nomination that will placate no liberals and should please no conservatives." Thanks to a slew of VC readers for the tip.
Record from Roberts' DC Circuit Nomination: If you're interested in finding out a lot of information about John Roberts, and you want to download the 1,236 page record from his DC Circuit nomination, you can get it right here (watch out -- it's a 40 MB .pdf file).
Apology for Deleted Post:

I deleted a post regarding the NASD arbitration in which I participated, because, though I did an initial check on the matter, I wanted to follow up with someone more knowledgeable than I on exactly what one is allowed to reveal about arbitration proceedings, whether reporting on such proceedings is treated the same way by the legal system as reporting on trials, etc.

Who is John Roberts? Who Knows? Jonathan Adler says John Roberts is the "best available" nominee. John Podhoretz says he is a "boring choice." So which is it? . . . .

Sorry, I seemed to have fallen asleep. I guess that means Podhoretz is right. John Roberts is who you get when the President finally nominates the "best qualified" candidate. I mean truly best qualified as measured by college and law school degrees (both Harvard), grades (summa, Harvard; Magna, Harvard Law School), clerkships (Friendly, Rehquist), post law school job (Chief Deputy SG), big prestigious law firm job. He is widely reputed to be considered by the Justices themselves as among the very best Supreme Court oral advocates around today. And no one dislikes him.

But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record--a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don't know. Is he a majoritarian conservative like Robert Bork? We don't know. Would he find any limits on the enumerated powers of Congress? We don't know. Would he have ruled with the majority in Kelo? We don't know.

What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him other than "well-crafted" opinions, and are unlikely to find out. Perhaps some previously expressed view will emerge from the confirmation process. If so, I very much look forward to reading it.

John Roberts appears to be the quintessential A+ student. That means being very smart, working very hard, and generally scoping out what the teacher wants to hear--which includes just the right amount of intellectual disagreement. Indeed, these would seem to be the qualities most desired in a judicial clerk who needs to anticipate and articulate the views if his judge, a Deputy SG who needs to voice the views of the administration, a Supreme Court advocate who needs to figure out what the justices want to hear while making his client's case, and an appellate judge who is trying faithfully to anticipate and follow Congress and the Supreme Court. Add to this what appears to be an admirable personal character and you have the "best qualified" person to sit on the highest court. But what may be missing is a judicial philosophy that will withstand the rigors of decades on the Court.

Am I being too hard on Judge Roberts? Perhaps. But I do know this. Writing an article, giving a speech, or even writing a column or blog about how the Constitution should be interpreted--taking a position, and defending it against all comers--is hard. Not the same kind of hard as standing up to judicial questioning in oral argument, to be sure. Almost completely different, actually. It requires a knowledge of one's own principles and an ability to articulate them and defend them publicly against contrary views.

This is a type of trial by ordeal that hones one's beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one's judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.

In contrast, Judge Michael McConnell, to name another conservative, has been through this ordeal. As a law professor, he has had to make such a commitment about judicial philosophy and defend it. When it comes to originalism, he has practiced it himself, and the fruits of his analysis have been subjected to severe academic scrutiny. In doing so, he has earned the respect of his academic adversaries. But because he has a paper trail, McConnell would have had a much tougher confirmation fight, which I imagine entered into the decision to pick Judge Roberts instead.

So we are still ducking and hiding from a debate over how the Constitution should be interpreted, beyond "not legislate from the bench." Will these questions be asked by the Senators? Maybe, but not likely. Will they be answered by the nominee? Only if asked, and then I expect to get answers that the Senators want to hear, delivered in a calm, cool, articulate and thoughtful manner. In a word, "boring." I predict no gavel-to-gavel network coverage. Even CNN and Fox News will cut away. C*SPAN will end up having this one all to itself.

Should Judge Roberts be confirmed? From what I now know, absolutely. He is well within the range of Presidential picks that are entitled to Senate confirmation. This was the President's choice to make, after all, not mine. But with someone like Judge McConnell we would have known what we were getting, for better or worse. With Judge Roberts, we can only sit and wait...and hope for the best.

Update: This post mde the blog round up on MSNBC. You can see it on Political Teen. Thanks!

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More on NASD Arbitration:

Temporarily deleted for reediting.

Reading One's Preferences into the Constitution: There is a great debate on the Kelo case today on National Review Online between two friends of mine, Jonathan Adler and Scott Bullock. The debate concerns the original meaning and judicial effect the "public use" portion of the Takings Clause. The only sour note in the exchange is when Jonathan says:
I will not defend the justices in the Kelo majority on this score as they did not seek to rest their opinion on originalist grounds. Alas, there are others, including my friend Bullock, who seem willing to read their own ideological preferences into ambiguous constitutional text.
When you stop think about it, this is really a pretty serious insult that goes to the intellectual integrity of those about whom it is said. In essence, it is asserting that, while I have the integrity to set my own preferences aside when reading the Constitution, my opponent does not. It attributes a form of intellectual corruption to one's opponent, in which he puts his interests above the truth, so much so that he is unable to tell the two apart. And it adds nothing substantive to any particular debate. Whether or not your opponent is guilty of this will depend entirely on the originalist evidence for his or her position, or the lack thereof.

Now when it comes to original meaning, I think that this form of corruption does exist. It exists especially when there is no good faith argument based on the original meaning of the text. But especially when we are discussing an ambiguity or vagueness in the text, we should generally refrain from casting this particular mud ball, and let our evidence and arguments speak for themselves.

I know that this accusation is so commonplace that Jonathan just slipped into it without thinking. But I think we all ought to realize the true implications of this particular form of (non)argument, and generally refrain from using it unless it is overwhelmingly justified.
My Sense of the Roberts Confirmation Picture: It's less than a day since President Bush nominated John Roberts to be an Associate Justice of the Supreme Court, but I wanted to offer some thoughts on how the nomination is playing out so far based both on my reading of the press and blog reactions and my own discussions about these issues with folks in DC.

  1) My sense is that most people expect Roberts to sail through. Roberts is widely liked and respected, and there are no obvious red flags. More importantly, from the perspective of many Democrats, Roberts was one of the two or three least objectionable names on the list of a dozen or so possible picks floated by the Bush Administration. The big question had been whether Bush would nominate someone with some Democratic support (which mostly meant McConnell, Roberts, or Gonzales), or someone Democrats saw as a lunatic or Republican hack (Janice Rogers Brown, etc.). Bush has answered that question by picking a safe nominee, someone with considerable Democratic support. And most expect Bush will be rewarded with a fairly straightforward nomination.

  2) The interest groups have to make a lot of noise right now, but it's mostly because they see that as their job regardless of who is the candidate. Lots of groups have been given lots of money to fight or support whoever Bush nominates, and that money has to be spent somehow. The spring has been wound very tight, and now we have to let it unwind a bit. But most people I've talked to aren't taking it very seriously, or seeing it as very specific to Roberts.

  Of course, all of this may change. These sorts of things are very fluid. But at least the initial sense seems to be that Roberts is in pretty good shape.
[Puzzleblogger Kevan Choset, July 20, 2005 at 10:35am] Trackbacks
Intra-Court Clerkships:

John Roberts clerked for Justice Rehnquist in 1980-81. If he is confirmed, it appears the two men will serve on the Court together. Would this be the first time that two people, one of whom clerked for the other (on any court) served together on the Supreme Court?

[The Times ran an interesting article about the many other connections between the people involved in the nomination process.]

O'Connor On the Roberts Nomination: A Spokane, Washington newspaper interviewed Justice Sandra Day O'Connor about the Roberts nomination, and her reaction was pretty enthusiastic:
Her first words were unequivocal: "That's fabulous!" she said. She immediately described John G. Roberts as a "brilliant legal mind, a straight shooter, articulate, and he should not have trouble being confirmed by October. . . . "
Hat tip: Howard.
A Response to Orin on Tradesports.--

1. Response to Orin's Response.

Orin wrote that about two hours before his 8:38pm post Roberts futures were trading at 1% and (at 8:38pm) were trading at 99.5%. He concluded: "Looks like Tradesports was right after all — at least after the announcement was made."

In response, I pointed out (1) that at 6:38pm (two hours before his post), Roberts futures were trading at 10%, not 1% (but I noted that they had been trading at 1% at 5:55pm); and (2) that "At 6:48pm (almost two hours before Orin's post and nearly an hour before the final press leak), Roberts became one of the top two favorites for the first time, trading at 30. At 7pm, for the first time, Roberts became the favorite at 41.9%. After remaining one of three favorites for the following 40 minutes, Roberts became the favorite for good at 7:40pm."

Now in response, Orin acknowledges only my first point:

But as best I can tell, the only apparent ground for his characterization is that I said Roberts was trading at 1% "about 2 hours" before my post, when the exact time Roberts was trading at 1% was 2 hours and 45 minutes before my post. But even assuming we construe "about" to exclude a 45-minute error window, what difference does that make?"

The main reason I wrote my update was to point out that Orin was "incorrect or misleading" in that the trading on Tradesports indicated that Roberts had a very substantial likelihood of being the nominee, not only after the press announced that Roberts would be nominated, but before the press announced it.

Orin points out that KJ Lopez had a post at the Corner at 5:24pm predicting Roberts as the nominee. But, of course, hers was one of many posts that predicted one or another nominee (indeed, Lopez herself was pushing Clement earlier in the day, as were traders on Tradesports). Her reasoning on NRO's The Corner and at NRO's Bench Memos was far from compelling. Here is Lopez's 5:24pm post that Orin notes:

Prediction: Bush will nominate a white male tonight. Just because they said he couldn't.

John Roberts. Bill Pryor! John Bolton!! Karl Rove.

I'm serious about one of those guys, by the way (and, no, I'm not being a right-wing lunatic this time, so this one's an easy guess).

Lopez follows this up at NRO's Bench Memos by pointing out that Luttig's family is in Washington. Her colleague at Bench Memos, Jonathan Adler floats Maurren Mahoney and makes a brief case for Edith Jones. Robert Alt on Bench Memos comments on Luttig's presence with his family in Washington.

At 6:14pm, Lopez follows up her prediction of Roberts or another white male by saying:

Did Major Garrett Just Say that he expects it won't be anyone who can be perceived as "an angry white man"? I assume there's no other kind of white male? With every comment like that I become more and more convinced Bush will do the impossible.

Here's my question: Supposedly when O'Connor was chosen everywoman got goosebumps, wanted to hug her...will men have the same reax if John Roberts is the nominee?

So the reasons Lopez actually gives for Roberts are only (1) that Bush will nominate a white male "Just because they said he couldn't" and (2) "With every comment like that [about angry white males] I become more and more convinced Bush will do the impossible."

At 6:17, Lopez says that she is told it's not Luttig. At 6:27, Lopez says that Roberts is in town, but she wonders where Mary Ann Glendon is, saying, "I can dream."

My point in reviewing some of this (and there is more) is that, while in hindsight Lopez was correct, her publicly stated reasons were far from compelling, and even her colleagues at Bench Memos and The Corner were not giving up on other speculations. The advantage of a market is that it can sift through information and assign a value to it.

Markets are good at evaluating publicly traded stocks, not because no analyst is correct in hindsight, but because it is difficult to know a priori which analyst is correct and which isn't.

So Orin asks whether markets such as Tradesports "just mirror the collective common wisdom of newspapers and blogs." Yet aggregating the collective wisdom and putting a probability on it is a very valuable function in itself. Markets should do this better than most experts reading through the blogs and newspapers and trying to figure out whom to trust.

Orin ends by saying:

I suppose this means that you could try to use Tradesports as a way of monitoring what a few newspapers and blogs are saying, but on the whole this seems like a quite modest function. It seems easier to just scan the headlines at How Appealing.

I just scanned the headlines at How Appealing. Before the press's announcement of Roberts as the nominee, there were headlines suggesting that Clement would be the nominee and then one saying she wouldn't. So How Appealing would not have been a way to aggregate opinion on who the nominee would be, except for the time earlier in the day when Clement was the conventional wisdom choice at How Appealing, The Corner, and Tradesports.

2. The Larger Question.

Part of Orin's and my disagreement tonight is that we are talking past each other.

Orin questioned the predictive ability of trading markets. I responded:

markets are frequently wrong; . . . The question is whether experts can usually do a better job than markets. It would seem that the answer is generally No.

Orin responded:

I think the question is whether markets do a good job predicting the discretionary decision of one person, as compared to predicting the collective outcome of the individual decisions of many. I can see markets doing a good job predicting collective decisionmaking, but I don't see the advantage they have in predicting what one person is thinking. Thus, it seems to me that Tradesport users incorrectly predicted Rehnquist would decide to retire because that's what newspapers were incorrectly predicting at the time; ditto for the idea that Clement would be nominated to replace Rehnquist.

My claim is a comparative one. Markets should do a better job than experts who lack actual inside information of the choice for a number of reasons that are raised in the comments to one of Orin's earlier posts. I would think this would be true both for predicting individual decisions and for predicting voting or future big market decisions, though I don't know what the state of the empirical evidence is on this narrower point.

Orin says that "the question is whether markets do a good job predicting the discretionary decision of one person, as compared to predicting the collective outcome of the individual decisions of many." This way of stating the issue potentially conflates two questions:

(1) the relative difficulty of predicting individual v. collective decisions; and
(2) the relative effectiveness of experts v. electronic markets.

For obvious reasons, predicting one person's decision is probably harder than predicting the aggregate decisions of many people, though sometimes that is not true (I suspect that for some Supreme Court decisions, I could better predict how Scalia would vote than how the Court as an aggregate would vote. Similarly, I expect that I could also better predict how Senator Hatch would vote on Bush's next Court of Appeals nominee than how the Senate Judiciary Committee would vote.)

But if all that Orin were claiming is that individual decisions are usually harder than agggregate decisions to predict (by markets or by experts), then I would suspect that this is generally true.

Yet Orin is questioning the effectiveness of trading markets: "the question is whether markets do a good job predicting the discretionary decision of one person, as compared to predicting the collective outcome of the individual decisions of many."

I am claiming that markets (however "good" or bad they are in absolute terms) should be better than experts on balance, or at least better than experts who lack actual first-hand knowledge of the forthcoming decision. So Orin and I may be talking past each other. I am asserting that I would expect a comparative advantage for markets over experts; Orin is questioning whether markets would "do a good job" predicting individual decisions compared to group ones.

A Response to Jim on Tradesports: Given that Jim hasn't opened comments for his post, I hope VC readers won't mind an up-top response to Jim's post and update below about the usefulness of Tradesports in predicting who Bush would nominate to replace Justice O'Connor.

  Jim describes my earlier post as "incorrect or misleading." But as best I can tell, the only apparent ground for his characterization is that I said Roberts was trading at 1% "about 2 hours" before my post, when the exact time Roberts was trading at 1% was 2 hours and 45 minutes before my post. But even assuming we construe "about" to exclude a 45-minute error window, what difference does that make? It doesn't seem relevant to the usefulness of Tradesports in this context.

  The question I asked in my initial post was whether we expect a site like Tradesports to provide something "particularly useful" on the issue of O'Connor's replacement, or to "just mirror the collective common wisdom of newspapers and blogs." I gather the answer is that Tradesports simply mirrored the common wisdom: its predictions simply reflected what newspapers and blogs were saying, with a built-in time delay of anywhere from a few minutes to an hour. So, for example, K.J. Lopez at The Corner put up a post predicting Roberts at 5:24pm, and about a half hour later, Roberts went from 1% to 10% on Tradesports. I suppose this means that you could try to use Tradesports as a way of monitoring what a few newspapers and blogs are saying, but on the whole this seems like a quite modest function. It seems easier to just scan the headlines at How Appealing.

Tuesday, July 19, 2005

Trading in Roberts Futures at Tradesports.--

Given our discussion earlier today, I thought that people might be interested in this chart of trading in Roberts futures at Tradesports since about 6:30pm ET.

(click to enlarge)

This is a 2-trade moving average.

As you can see, Roberts became the favorite for the first time about 6:47pm ET (there were several trades between about 6:47 and 7:02 at a price of 30-40) [see update below with more precise data. Roberts became the close 2d favorite to Jones about 6:48 and the favorite for the first time at 7pm, after which he dropped below Jones and then overtook her again at 7:40pm about 6 minutes before the choice was announced by AP.] The market anticipated by about an hour the NBC announcement at about 7:47 that AP was reporting Roberts as the nominee[, but only by making him one of the top two favorites with Edith Jones]. So Clement, the early betting favorite, was replaced by Jones as the betting favorite, who was replaced by Roberts as the betting favorite, who has remained so until just before Bush's news conference.

I still await the actual announcement in a few minutes.

UPDATE: While I was writing the above post, Orin posted on this topic, so I went back and checked some of the other nominees just to be sure who was the favorite at what time, downloading the actual trading data for Roberts, Jones, and Luttig. While Roberts first jumped up to a price of 30% at 6:48ET (about an hour before AP broke the story), Edith Jones was then trading at about 35.7%, so Roberts was then running a close second to Jones. Roberts briefly became the favorite at 41.9% at 7pm (and his next 5 trades were 38% or above), after which he remained one of the favorites along with Jones and Luttig until 7:40 when he overtook both of them for good to trade at 25. Roberts rose to about 30 at 7:43, 30-55 at 7:44, 50-55 at 7:45, and he jumped from 60 to 90 at 7:46.

At 8:38pm, Orin posted:

Although gave John Roberts less than a 1% likelihood of getting the nomination as of about two hours ago, right now it is giving Roberts a 99.5% chance of getting the nomination. Looks like Tradesports was right after all — at least after the announcement was made.

This is incorrect or misleading:

1. At 6:38pm ET, exactly two hours before Orin's post at 8:38pm ET, Roberts had most recently traded (at 6:34pm) at 10%, not 1%, which made Roberts one of several favorites (see the chart above). Roberts had, however, traded at 1% just 45 minutes before that (at 5:55pm).

2. At 6:48pm (almost two hours before Orin's post and nearly an hour before the final press leak), Roberts became one of the top two favorites for the first time, trading at 30. At 7pm, for the first time, Roberts became the favorite at 41.9%. After remaining one of three favorites for the following 40 minutes, Roberts became the favorite for good at 7:40pm.

As Frank Cross has noted, people may expect too much of trading markets. If they function well, they reflect the best estimate (at the time of the trade) of the occurence of a future event. As information changes, estimates can and should change. Whether you think Tradesports did a "good" or a "poor" job reflecting the best estimates of who would be appointed depends on your point of view, and the time frame chosen. Two hours before the 7:46pm AP/NBC report that Roberts was the nominee, Tradesports gave no hint that Roberts would be chosen. About one hour before the announcement, Tradesports began showing him as one of the three favorites, which was far from a consensus view at the time. Certainly, I continued to share the view of many experts that Bush would probably choose a woman or a minority. About 5-6 minutes before the AP/NBC press announcement, Roberts finally edged ahead to stay.

According to Tradesports Betting, President Bush Will Pick John Roberts: Although gave John Roberts less than a 1% likelihood of getting the nomination as of about two hours ago, right now it is giving Roberts a 99.5% chance of getting the nomination. Looks like Tradesports was right after all -- at least after the announcement was made.
Abortion War Over Roberts?!?

That's the headline on Drudge. The charge is based upon Roberts' co-authorship of the brief in Rust v. Sullivan. I explained why this does not mean he is anti-Roe here. Indeed, whatever Roberts' opinion of Roe, he is a phenomenal nominee. The SCOTUSBlog profile can be found here.

UPDATE: Adam White at Southern Appeal notes that Roberts was the sixth lawyer listed on the Rust brief, and didn't even argue the case.

Why is this [as in the broader issue] important? Because it is improper to ascribe to an attorney the positions advocated on behalf of his or her clients. As I said before, I don't know whether Roberts would vote to overturn Roe. Maybe he would, but neither his participation in Rust nor his wife's pro-life views is enough to make such an assumption. [Note addition in brackets above.]

SECOND UPDATE: A PFAW release (posted on BenchMemos) warning of Roberts' "alarming" record reads in part:

Roberts urged the Supreme Court to overturn Roe v. Wade while arguing before the Court as Deputy Solicitor General in a case that did not even directly concern that issue. His brief plainly states that "Roe was wrongly decided and should be overruled."(emphases added).

THIRD UPDATE: According to Robert Alt, Harvard law professor Lawrence Tribe, who argued the other side in Rust, says those who attack Roberts over the Rust brief are giving him a "bum rap."

Related Posts (on one page):

  1. Abortion War Over Roberts?!?
  2. Roberts on Roe:
It's Roberts:

The AP is reporting that the President has selected D.C. Circuit Judge John Roberts, Jr., as his USSC nominee. I have nothing against against Roberts, and I'm sure he's a fine judge, but I do have a strong preference against "Washington insiders," which is how Roberts is described.

Bravo: It's all over the news that the President is nominating John G. Roberts to replace Justice O'Connor. He's an inspired choice. Robert is probably the best Supreme Court litigator of his generation, and is considered a total star within the DC legal community (on both sides of the aisle). Bravo.
I Hope Drudge Is Right This Time: The Drudge Report is saying that President Bush will be nominating John Roberts to fill Justice O'Connor's seat. Roberts is my favorite among all of the people on the short list: he is brilliant, and his opinions as an appellate judge are textbook examples of outstanding judicial craft. Drudge was wrong about Rehnquist retiring, but I hope he's right about Roberts getting the nod. Stay tuned.
NBC and AP reporting that John Roberts is the nominee.--

NBC and AP are reporting that John Roberts is the nominee.

Edith Clement, perhaps (but maybe not)...

Tyler writes:

She has heard the voice of VC contributor Todd Zywicki.

Well there goes her chances of confirmation...

Related Posts (on one page):

  1. Edith Clement, perhaps (but maybe not)...
  2. Edith Clement, perhaps...
Arbitration Lost:

Well, I received word from my father that in the case of Bernstein v. Craig Hassel and H&R Block Financial Advisors, Inc., the arbitration case in which I represented my father, we lost. Not only that, but the arbitrators chose to award $4,500 in costs against him.

[CLARIFICATION: My father misunderstood the ruling. Each party was assessed his own costs. Both Claimaints and Respondents had to pay normal NASD fees.]

I haven't seen the decision yet, and I'm sure I'll have more to say when I do. But two things strike me as very odd about the decision: (a)there was one small claim for $360 which H & R Block conceded at the hearing, and that they truly had no defense to. Regardless of the other claims, I don't see how the arbitrators could have awarded nothing, or for that matter, costs to the other side, given that fact; and (b)our side consistently requested mediation, to save both sides time, money, and aggravation. The other side consistently refused it, obviously (and correctly) thinking that my father couldn't represent himself adequately in an arbitration, and that his claim wasn't large enough to get a securities attorney to represent him(think about that if you are currently or thinking in the future of becoming an H&R Block customer!--more on why you shouldn't be one in the future). How in God's name can you justify awarding costs against a party who consistently sought to be in a different and less expensive forum?

I'll be blogging a bit about the arbitration, partly to get it off my chest, and mostly because I think my experiences have some important public policy ramifications, given that the NASD is a huge forum for litigation at this point.

Samuel Colt: Great Inventor, Exemplary Businessman:

Today is the anniversary of the 1814 birthday of Samuel Colt, the inventor of the Colt revolver. We tend to remember Colt as the man who first figured out how to manufacture and mass produce a reliable repeating firearm. In an article a few years ago, I argued that all Americans, not just gun enthusiasts should honor Colt for his contributions to American business. The Colt Manufacturing Company was a pioneer in precision manufacturing. One of the most important reasons for the Company's success in mass production of complex products was how Colt treated his employees. Colt employees were well-paid, well-fed, and well-rested. Colt also insisted that outside contractors treat their own employees well. As a businessman who showed that the best way to get rich was to treat one's employees better than competing companies do, Samuel Colt remains an admirable model for business today.

More on the Accuracy of Electronic Markets: Jim writes, in the post below: "The question is whether experts can usually do a better job than markets. It would seem that the answer is generally No." This is far, far from my expertise, but I'm not sure that is the question. I think the question is whether markets do a good job predicting the discretionary decision of one person, as compared to predicting the collective outcome of the individual decisions of many. I can see markets doing a good job predicting collective decisionmaking, but I don't see the advantage they have in predicting what one person is thinking. Thus, it seems to me that Tradesport users incorrectly predicted Rehnquist would decide to retire because that's what newspapers were incorrectly predicting at the time; ditto for the idea that Clement would be nominated to replace Rehnquist.
Alice Batchelder:

Very nice piece on one of my top choices for the Court, Alice Batchelder of the 6th Circuit. Even if she doesn't get the nod, I think this is a nice piece that captures not only Judge Batchelder's intellect, experience, and work ethic, but also her genuine goodness and thoughtfulness as a person and a judge.

Of course, from a purely selfish intellectual perspective, it also would be pretty neat to have a former Bankruptcy Court Judge on the Supreme Court...

Related Posts (on one page):

  1. Alice Batchelder:
  2. Seconding the Motion for Edith Jones:
The Accuracy of Small-Volume Electronic Markets.--

Orin Kerr asks about the accuracy of electronic markets. Saul Levmore has an interesting review of the evidence:

Efficient Markets and the Role of Regulation: Lessons from the Iowa Electronic Markets and the Hollywood Stock Exchange Symposium: Revisiting the Mechanisms of Market Efficiency, 28 J. Corporation L. 589 (2003).

Levmore reviews the evidence that even small fantasy markets with little money at stake and thin trading do an extraordinary job predicting outcomes. Those who log on through their law school or law firm computers might be able to download the article at

I'm reasonably certain that predicted the outcome of every state in the Nov. 2004 election, even New Hampshire, Iowa, Wisconsin, and New Mexico. That said, markets are frequently wrong; a recent Tradesports example is that traders overwhelmingly thought that Rehnquist would step down before O'Connor. The question is whether experts can usually do a better job than markets. It would seem that the answer is generally No.

UPDATE: By the way, Edith Clement's odds (actually, probabilities) have dropped to 32-48%, while Edith Jones's odds (probabilities) have risen to 27-31% by 5:10pm ET.

2d UPDATE: Cass Sunstein is dicussing information aggregation and markets at Lessig's blog.

And Jones is now (5:30 ET) at 50-54%, while Clement has dropped to 20-28%.

Edith Clement, perhaps...

Jane Galt says she is pro-Roe vs. Wade on abortion.  Googling "Edith Clement Economics" reveals she attended this seminar on climate change.  She also has attended other seminars on economics and the environment, plus she is a member of The Federalist Society.  She has heard the voice of VC contributor Todd Zywicki. Might she be a libertarian at heart? 

The Washington Post claims she has no real paper trail, The Village Voice wrote:

EDITH BROWN CLEMENT: A former federal judge in the eastern district of Louisiana, she's on the Fifth Circuit now. Clement is thought to be a trustworthy conservative, but she has participated in few controversial cases. In one case she limited the claim in an auto accident suit, giving conservatives reason to believe that at the very least she would support Bush in his attack on lawyers and demands for tort reform.

Dallas News called her a "libertarian conservative" and noted the following:

5th U.S. Circuit Court of Appeals Judge Edith Brown Clement: Dissented from a case that blocked development on a site with endangered bug species, saying it had nothing to do with congressional power to regulate interstate commerce.

Here is a lengthy list of her interesting opinions.  Here is opinion from NRO.  Kos has excellent links. Stay tuned...

Related Posts (on one page):

  1. Edith Clement, perhaps (but maybe not)...
  2. Edith Clement, perhaps...
Edith Clement Open Thread: Lots of people seem convinced that President Bush will accounce the nomination of Edith Clement tonight to replace Justice O'Connor. I have started looking into Clement's record, but for now I thought I would just open a thread for comments. Your thoughts?

  UPDATE: RedState.Org is reporting that we may have the wrong Edith — it may be Edith Jones, not Edith Clement. (Those Fifth Circuit Ediths are very hard to tell apart, so the confusion is understandable.) So far no one is saying that the nominee will be Edith Piaf, but then we still have a few hours before the President's annoucement.

  ANOTHER UPDATE: ABCNews says it's not Clement.
Tradesports and Supreme Court Nominations: I've seen lots of blogging about betting sites on who will be nominated to replace O'Connor, including Jim's post below about the betting at Maybe I am just missing something obvious, but I confess I don't understand why we would expect such sites to reveal anything particularly useful on the question of O'connor's replacement.

  Here's my thinking. The choice of O'Connor's replacement belongs to one man, George W. Bush. A few inside advisors are privy to his thinking, but I think it's fair to assume that neither Bush nor any of his inside advisors are placing any bets on sites like This means that the people who are placing bets presumably are outsiders who are getting their predictions from newspaper articles, blogs, horoscopes, etc., and then placing bets. As a result, a site like TradeSports would seem to just mirror the collective common wisdom of newspapers and blogs on a question like this. Am I missing something?
O'Connor Replacement to Be Announced at 9PM: Big news — President Bush will be announcing his pick to replace Justice O'Connor tonight at 9pm. Given the unfortunate realities of the confirmation process, I feel a bit like it's the opening scene of a new Stephen Sondheim musical, "A Funny Thing Happened on the Way to the Courtroom."
Something familiar,
Something peculiar,
Something for everyone:
A nominee tonight!

Something appealing,
Something appalling,
Something for everyone:
A nominee tonight!

Nothing with kings, nothing with crowns;
Bring on the lovers, liars and clowns!

Old situations,
New complications,
Nothing portentous or polite;
Tragedy tomorrow,
A nominee tonight!

Something convulsive,
Something repulsive,
Something for everyone:
A nominee tonight!

Something aesthetic,
Something frenetic,
Something for everyone:
A nominee tonight!
  Or something like that, anyway. Stay tuned.
According to Tradesports betting, Bush will choose Edith Clement [or Edith Jones].--

[UPDATE: The post below reflected the betting consensus early to mid afternoon. By 5:50pm ET, the betting at had switched, and the favorite was Edith Jones of the 5th Circuit (40-52%), not Edith Clement (19-29%).]


According to betting, Bush will choose Edith Clement to fill the O'Connor vacancy on the Supreme Court. The odds on all other nominees have collapsed. The last trade on Clement was at 88 (an 88% probabilty), and the current bid/ask spread is bid 60 / ask 85.5. So, according to the traders at, there is a 60%-85.5% probability that Bush will choose Clement.

The next highest bids are Jones (5.2) and Owen (5.1), followed by Gonzales at 3.0.

ThinkProgress's Supreme Court Clerk Blog: ThinkProgress has started up a new blog on the Supreme Court that promises to be staffed by a truly stellar list of young left-leaning lawprof types, many of them recent Supreme Court clerks. The blog is here, and the list of potential participants is here. Here is ThinkProgress's blurb about the new blog:
  American Progress has launched Clerks, a partner blog of ThinkProgress dedicated entirely to Supreme Court coverage.
  What sets Clerks apart from many of the other SCOTUS blogs is its writers: an esteemed group of legal thinkers, professors, litigators, and advocates, virtually all of whom clerked for Supreme Court justices in recent years. Although each blogger brings a different perspective, all write from a deep awareness of the Court’s importance and a deep concern about how a new justice could change our country.
  The first few posts at the new blog are terrific. Recent topics include the alleged "Constitution in Exile" movement, the Jurisprudence of Justice O'Connor, and whether Justice Stevens is a liberal; authors include Sam Bagenstos, Goodwin Liu, Eduardo Penalver, and Tim Wu.
Stanley Fish is an Originalist.--

Stanley Fish has a well-written and interesting op-ed in the NY Times. (I don't know whether the op-ed is available to non-subscribers.) Although mainly on the coming debate over the judicial philosophy of prospective nominees, Fish has a lot to say about constitutional interpretation:

If interpreting the Constitution — as opposed to rewriting it — is what you want to do, you are necessarily an "intentionalist," someone who is trying to figure out what the framers had in mind. Intentionalism is not a style of interpretation, it is another name for interpretation itself.

Think about it: if interpreting a document is to be a rational act, if its exercise is to have a goal and a way of assessing progress toward that goal, then it must have an object to aim at, and the only candidate for that object is the author's intention. What other candidate could there be?

One answer to this question has been given by Justice Antonin Scalia and others under the rubric of "textualism." Textualists insist that what an interpreter seeks to establish is the meaning of the text as it exists apart from anyone's intention. According to Justice Scalia, it is what is "said," not what is "meant," that is "the object of our inquiry."

The problem is that there is no such object. Suppose you're looking at a rock formation and see in it what seems to be the word "help." You look more closely and decide that, no, what you are seeing is an effect of erosion, random marks that just happen to resemble an English word. The moment you decide that nature caused the effect, you will have lost all interest in interpreting the formation, because you no longer believe that it has been produced intentionally, and therefore you no longer believe that it's a word, a bearer of meaning.

It may look like a word — it may even seem to be more regularly formed as such than the scratchings of someone who is lost — but in the absence of the assumption that what you're looking at is a vehicle of an intention, you will not regard it as language.

. . . Justice Scalia has it backwards: if you're not looking for what is meant, the notion of something being said or written is incoherent. Intention is not something added to language; it is what must already be assumed if what are otherwise mere physical phenomena (rocks or scratch marks) are to be experienced as language. Intention comes first; language, and with it the possibility of meaning, second. And this means that there can be no "textualist" method, because there is no object — no text without writerly intention — to which would-be textualists could be faithful.

And if there is no object — no plain and lucid text to which interpreters could be faithful — neither is there an object to which interpreters could be unfaithful. Consequently, "judicial activism," usually defined as substituting one's preferred meaning in place of the meaning the text clearly encodes, becomes the name of a crime no one could possibly commit. After all, you can't override a meaning that isn't there.

Indeed, because texts do not declare their own meanings, activism, at least of a certain kind, is inevitable. You must actively try to figure out what the author or authors had in mind when setting these marks down on paper. And while the text as written can be a piece of evidence, it cannot — just as that rock formation cannot — be self-sufficient and conclusive evidence.

It follows that any conclusion you reach about the intention behind a text can always be challenged by someone else who marshals different evidence for an alternative intention. Thus interpretations of the Constitution, no matter how well established or long settled, are inherently susceptible to correction and can always (but not inevitably) be upset by new arguments persuasively made in the right venues by skilled advocates.

This does not mean, however, that interpreting the Constitution is a free-form activity in which anything goes. The activism that cannot be eliminated from interpretation is not an activism without constraint. It is constrained by the knowledge of what its object is — the specifying of authorial intention. An activism that abandons that constraint and just works the text over until it yields a meaning chosen in advance is not a form of interpretation at all, but a form of rewriting.

Rewriting is what is being done by those who talk about the "living Constitution" and ask, "Why should we be constrained by the dead hand of the past?" This makes no more sense than asking, "Why should we be constrained by wills and contracts?" The answer is that without that constraint handed down by the past, law and predictability disappear and are replaced by irresponsibility and the exercise of power. If you can just make it up when interpreting the Constitution, you can also make it up when deciding whether or not to honor your contractual obligations, and so can everyone around you. In fact, if your question is "What do I want it to mean" rather than "What did they mean by it?" you can dispense with "it" and "them" entirely and just go right to the fashioning of the meaning you prefer.

And that is why the only coherent answer to the question "What does the Constitution mean?" is that the Constitution means what its authors intended it to mean. The alternative answers just don't work: the Constitution can't mean what the text alone says because there is no text alone; and it can't mean what present-day society needs and wants it to mean because any meaning arrived at under that imperative will not be the Constitution's.

Only if the specification of the authors' intention is its goal does interpretation have a real object of inquiry; and only the goal of specifying authorial intention allows us to distinguish between what we might like the Constitution to mean and what we can show — by reasons and evidence publicly offered — that it does mean. . . .

If the nominee identifies himself or herself as a textualist or a strict constructionist and pledges to be a faithful interpreter of the Constitution (as opposed to an unfaithful one?), you will know that he or she is blowing smoke and laying claim to virtues no one could practice. If the nominee promises to test the Constitution against the needs of our present situation, you will know that he or she will not be an interpreter but a rewriter, and no one on either the left or right wants that. And if the nominee says, "I am an intentionalist," the declaration will be uninformative, because every interpreter is necessarily an intentionalist — not by choice but by definition.

There is much to be commended in Fish's account. And I hadn't realized until now that Fish was an originalist. Further, he is presenting highly sophisticated argumentation in the form of an op-ed, which means that he can't be faulted for simplifying or for not dealing with counter-arguments.

Yet it strikes me that Fish's extraordinary literary background makes him misstate (or misunderstand) the central problem that "original intent originalism" purports to solve. Fish writes: "if interpreting a document is to be a rational act, . . . then it must have an object to aim at, and the only candidate for that object is the author's intention." But what gives a law or a Constitution its force as law is that its language was enacted as law or ratified by the states. Why would the author's intention as to the meaning of the words trump the meaning of the words to those who enacted or ratified the language? It is their act that made the language law; it is their act of agreeing to enact the language that transforms what is otherwise only a proposal.

While Fish says there is no alternative to looking to the intent of the author, there is an alternative, indeed, what might seem to be a better alternative: looking to the intent of the enactors, signers, and ratifiers. OK, so Fish might be willing to accept that move, perhaps by revising the idea of the "author" to mean not the author of the language but rather the enactors of the statute or Constitutional provision.

Yet that simple move changes the analysis considerably. Once you have hundreds or thousands of enactors or ratifiers, then you are usually talking about the public meaning of words at the time, not the idiosyncratic private meanings of the man or woman who drafted the language. Now you are in the realm of "original meaning originalism," not "original intent originalism" which Fish posits as the only form of interpretation.

Nonetheless, some original meaning originalists will allow idiosyncratic meanings to trump the usual public meaning at the time if that idiosyncratic meaning was publicly discussed and probably agreed upon (or presumably if legal terms of art are used that differ from ordinary public meaning, e.g., "under color of official right"). Where such idiosyncratic meanings were not discussed publicly or where searching for them might lead to more error than not searching for them, for some people (not me) "textualism" might be a crude shorthand label for looking to the meaning intended by the enactors and ratifiers. Given the cooperative enterprise of enactment or ratification, their intention is very likely to be the public meaning of the words at the time.

So, although Fish is right that intentionality matters and provisions are more than simply arrangements of markings on the face of a rock, he does not follow up that insight by asking (as Rick Kay did in his classic 1980s Northwestern Law Review article) what makes these words important. It is not, as Fish supposes, the intention of the author, but rather the political act of enactment that makes them deserving of respect as law. Thus, I think Fish is wrong that there is no alternative to the intentionality of the author of a provision. The alternative is the intention of the enactors and ratifiers, which will almost always be the public meaning of the words at the time. I leave for others whether Fish or the "textualists" and "strict constructionists" are closer to this form of sophisticated original meaning originalism, which I find a coherent and defensible position (though I don't endorse it). The Constitution is more than a literary text and sometimes modes of interpretation designed for literary texts will be appropriate — and sometimes not.

(Perhaps my other conspirators or Larry Solum over at Legal Theory blog can provide some more informed analysis. In particular, I hope that Randy Barnett, who was the primary expositor and popularizer of the distinction between "original intent originalism" and "original meaning originalism," will weigh in with a closer and more informed analysis of Stanley Fish's argument for original intent originalism than I can give.)

Column Idea for David Brooks: NYT columnist David Brooks likes to explain any situation as a split between two different types of people. Given this, I think he should write a column that begins:
  There are two kinds of people in the world. Those who love Harry Potter, and those who think Harry Potter is silly. I call them the Potters and the Notters.
  Meanwhile, Heidi Bond, whose blog is presently the #1 google hit for "Horcrux," has found Potterblogging to be an easy way to run up 680 blog comments in about a day.
Sunstein at Lessig Blog: Cass Sunstein is guest-blogging at Lessig Blog, and is asking all sorts of interesting questions about blogging, wikis, and Friedrich Hayek. Check it out.

Monday, July 18, 2005

The New York Times ACLU Story Begins to Look A Bit Fishy: If I'm not mistaken, it's beginning to look like Eric Lichtblau's New York Times story about the FBI's keeping records on the ACLU is based on a serious misrepresentation. I haven't reached the bottom of the story yet, and I'm tentative about my conclusion, especially given that I am not a FOIA expert. But I worry that the facts may be pretty different from what the New York Times is reporting. [UPDATE: See the end of the post for an important update.]

  First, a brief recap. You will recall that the New York Times reported today that the FBI had 1,173 pages of records "on" the ACLU, which makes it sound like the FBI is keeping a large dossier on the ACLU. In the post below, I noted that the number cited in the Times story was from a DOJ court filing that said the FBI had 1,173 pages of documents relevant to a FOIA request by the ACLU. The question I posed below was whether it was fair for the New York Times to assume that every page that is potentially responsive to the ACLU's FOIA request is a page "on" the ACLU.

  I think we have an answer to that question, and the answer seems to be "no." A friend who is a FOIA expert pointed me to a .pdf file containing the text of the ACLU's FOIA request in this case. If I understand FOIA correctly, the 1,173 figure is the number of documents found by the FBI to be responsive to the ACLU's request. So the question is, what exactly did the ACLU request?

  It turns out that the language of the ACLU request was tremendously broad. The ACLU didn't request just documents about the ACLU, or documents about monitoring the ACLU. Rather, it made an extremely broad request that asked the FBI to collect any documents in its possession that even just referred to the ACLU. The key language starts on page 6 of the ACLU's request, see especially paragraph 1 of 18, and the language of the request goes on to page 8.

  I'm not entirely sure, but my suspicion is that the New York Times reported the number of FBI pages that mention the ACLU as if it were the number of FBI pages that were about the ACLU and its activities. It seems to me that the difference is considerable. For example, imagine that one FBI agent e-mailed a press clipping about the FBI to another FBI agent, and that press clipping contained a quote from Anthony Romero identifying him as the Executive Director of the ACLU. That document would seem to be responsive to ACLU's request: it is a document possessed or transmitted by the FBI that refers to the ACLU.

  Here's an interesting question: Where did Times reporter Eric Lichtblau get the idea that the 1,173 documents were "on" the ACLU, rather than than that they just mentioned the ACLU? I've blogged before about how the MSM has a tendency to rely heavily on ACLU press releases instead of underlying documents, and I wonder if this may have happened again. Here is how the ACLU press release presents DOJ's court filing in response to its FOIA request:
Government Has Amassed Thousands of Pages on National Peace and Civil Rights Organizations

  NEW YORK — The American Civil Liberties Union today revealed that the FBI has amassed more than 1,100 pages of documents on its organization since 2001, as well as documents concerning other non-violent groups including Greenpeace and United for Peace and Justice.
  "We now know that the government is keeping documents about the ACLU and other peaceful groups - the question is why," said ACLU Executive Director Anthony D. Romero.
  . . . "The government’s claim that it needs nine more months to turn over these documents is a stalling tactic," Romero said, referring to the FBI’s request for more time to "process" the 1,173 pages of documents it says it has on the ACLU.
  Note that the ACLU press release features the 'pages on the ACLU' concept several times in just the beginning of its press release. (I think it's also kind of funny that the press release credits the ACLU with "revealing" the information, when it seems that it was filed in open court by DOJ, but I think you have to give the ACLU a little poetic license with their press releases.)

  Now let's compare the ACLU's description of the disclosure with the opening two paragraphs of Eric Lichtblau's story in the New York Times (emphasis mine):
  The Federal Bureau of Investigation has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups in what the groups charge is an attempt to stifle political opposition to the Bush administration.
  The F.B.I. has in its files 1,173 pages of internal documents on the American Civil Liberties Union, the leading critic of the Bush administration's antiterrorism policies, and 2,383 pages on Greenpeace, an environmental group that has led acts of civil disobedience in protest over the administration's policies, the Justice Department disclosed in a court filing this month in a federal court in Washington.
  Hmm, looks pretty similar to me. Of course, it could be a coincidence. But it does look a bit suspicious.

  Am I being unfair, or have I misunderstood the facts? I am not a FOIA expert, so I'm not entirely confident in my conclusion. If I'm wrong, I'll be delighted to post a correction immediately. Plus, I should point out that it is at least theoretically possible that all of the documents that "refer" to the ACLU are actually "on" the ACLU. At the same time, my tentative sense is that Lichtblau's story may have a significant error.

  UPDATE: In a comment, reader Fabian has a possible explanation for the perceived inconsistency: It may be that the ACLU's request was very broad, but that the way the FBI responds to even broadly-worded FOIA requests ensures that the responsive documents are more-or-less fairly described as being "on" the relevant group. I don't yet know enough about how the FBI responds to FOIA requests to have certainty on this, but I wanted to flag it as a possible explanation for now. More on this tomorrow, I hope.

Related Posts (on one page):

  1. The New York Times ACLU Story Begins to Look A Bit Fishy:
  2. Help Needed on ACLU Dossier Story:
Help Needed on ACLU Dossier Story: I'm trying to make sense of this New York Times story by Eric Lichtblau on FBI records about the ACLU, but I'm having trouble with it. I was wondering if any VC readers who understand FOIA have any insights.

  The Times story makes it sound like the FBI is keeping dossiers on the ACLU, Greenpeace, and other groups:
  The Federal Bureau of Investigation has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups in what the groups charge is an attempt to stifle political opposition to the Bush administration.
  The F.B.I. has in its files 1,173 pages of internal documents on the American Civil Liberties Union, the leading critic of the Bush administration's antiterrorism policies, and 2,383 pages on Greenpeace, an environmental group that has led acts of civil disobedience in protest over the administration's policies, the Justice Department disclosed in a court filing this month in a federal court in Washington.
  The filing came as part of a lawsuit under the Freedom of Information Act brought by the A.C.L.U. and other groups that maintain that the F.B.I. has engaged in a pattern of political surveillance against critics of the Bush administration. A smaller batch of documents already turned over by the government sheds light on the interest of F.B.I. counterterrorism officials in protests surrounding the Iraq war and last year's Republican National Convention.
  F.B.I. and Justice Department officials declined to say what was in the A.C.L.U. and Greenpeace files, citing the pending lawsuit. But they stressed that as a matter of both policy and practice, they have not sought to monitor the political activities of any activist groups and that any intelligence-gathering activities related to political protests are intended to prevent disruptive and criminal activity at demonstrations, not to quell free speech. They said there might be an innocuous explanation for the large volume of files on the A.C.L.U. and Greenpeace, like preserving requests from or complaints about the groups in agency files.
  I spent some time this afternoon trying to figure out what to make of the claim that the FBI has all of these documents "on" the ACLU and other groups. I was able to figure out that the source of the figures is a paragraph in this 50-page DOJ court filing arguing against the ACLU's motion to expedite its FOIA request. The key paragraph appears on page 37:
  The biggest volume of the pending requests involve plaintiffs ACLU, ACLU Foundation, and Greenpeace, as well as records related to the NJTTF. For records related to the ACLU and ACLU Foundation, the FBI has identified approximately 1173 pages to review – a medium queue case for which the FBI will need eight months, or to March 1, 2006, to complete processing. Hardy Decl. ¶ 36 (Chart). The FBI estimates that it would require until June 1, 2006 to complete processing of records related to plaintiff Greenpeace, which total approximately 2383 pages – another medium queue case. Id.
  Here's my question for any FOIA people out there: Was it fair for the New York Times to present these numbers as the number of pages that the FBI has "on" the ACLU, Greenpeace, and the like? I don't know how the FOIA process works, so I can't tell if the documents that the FBI has to review are fairly presented as documents "on" these groups — or if they merely are documents that mention them, contain the name of the group for other reasons (e.g., case names of ACLU litigation), or merely might do so. If you happen to know, I'd much appreciate it if you could leave a comment or send me an e-mail.

Related Posts (on one page):

  1. The New York Times ACLU Story Begins to Look A Bit Fishy:
  2. Help Needed on ACLU Dossier Story:
What if the Grateful Dead had been observant Jews who lived in Israel?

Then they would have sounded a lot like Reva L'Sheva. Their website includes a good sample of free music. Start out by listening to the 27 minute live jam from their New York City show. If you like the Dead, or other jam bands, you'll be an instant convert.

Should the Media Withhold Accurate Information?

In my latest media column for the Rocky Mountain News, I suggest the answer is "yes." A case in point is the recent controversy over the Boulder Daily Camera publishing a picture of a man arrested for a notorious local crime, even though publication of the photo could taint the line-up identification made by witnesses, thereby ruining the criminal case.

More broadly, I suggest that the media should not become a de facto accomplice of people who murder to achieve publicity--such as school shooters, or assassins of celebrities. Put the photos of the victims, not the killers, on the front page. And minimize use of the killer's name.

Finally, the media and the public should begin a dialogue for how the media can avoid serving as a force multiplier for terrorists by making terrorists seem more powerful than really are.

Washington Post on FBI "Monitoring" of Website: An ACLU Freedom of Information Act request has revealed that in the course of investigating the security situation at the 2004 Republican convention, someone at the FBI visited a website of a group that planned to stage protests at the convention — and then wrote an e-mail to agents who were involved in the counterterrorism side of the security picture to let them know about the planned protests announced on the website. You can get a redacted copy of the e-mail here.

  Looking at the document, it seems pretty innocuous to me. Imagine you're an FBI agent trying to get a handle on the security situation at a political convention, and you want all the security people to know what's up. Wouldn't you want to visit the public website that announced major planned protests? And why would you want to keep the counterterror people in the dark about what you found posted on the website?

  The Washington Post offers a more troublesome picture. Here's how the Post reports the FBI's web surfing and e-mailing:
FBI Monitored Web Sites for 2004 Protests
Groups Criticize Agency's Surveillance for Terror Unit

By Michael Dobbs
Washington Post Staff Writer
Monday, July 18, 2005; Page A03

  FBI agents monitored Web sites calling for protests against the 2004 political conventions in New York and Boston on behalf of the bureau's counterterrorism unit, according to FBI documents released under the Freedom of Information Act.
  The American Civil Liberties Union pointed to the documents as evidence that the Bush administration has reacted to the Sept. 11, 2001, terrorist attacks on the United States by blurring the distinction between terrorism and political protest. FBI officials defended the involvement of counterterrorism agents in providing security for the Republican and Democratic conventions as an administrative convenience.
  The documents were released by the FBI in response to a lawsuit filed by a coalition of civil rights, animal rights and environmental groups that say they have been subjected to scrutiny by task forces set up to combat terrorism. The FBI has denied targeting the groups because of their political views.
  "It's increasingly clear that the government is involved in political surveillance of organizations that are involved in nothing more than lawful First Amendment activities," said Anthony Romero, executive director of the ACLU. "It raises very serious questions about whether the FBI is back to its old tricks."
  I suppose you could say that visiting a website and e-mailing someone about what you find is "monitoring" the website "on behalf" of the person you e-mail. But this seems to be a somewhat odd way to describe it. What am I missing? Is the FBI's conduct more troubling than I am suggesting, or is the Washington Post overplaying the story?
[Puzzleblogger Kevan Choset, July 18, 2005 at 12:47pm] Trackbacks
Nested Words:

There is a well-known three word phrase/saying/slogan whose third word is contained entirely (using consecutive letters) within its second word and whose first word is contained entirely (and consecutively) within its third word. E.g., "Hose Choset chose" would work if it were a well-known phrase/saying/slogan. I've enabled comments and if it's too difficult I'll add hints throughout the day.

Thinking Ahead: I was doing some edits to an article on computers and the Fourth Amendment over the weekend, and spent some time reworking a discussion of the Supreme Court's 1987 decision in Arizona v. Hicks. In that case, a police officer picked up a stolen Bang & Olufsen turntable and copied down the serial number to confirm it was stolen. The Court held that picking up the turntable was a Fourth Amendment search, but writing down the number was not a Fourth Amendment seizure.

  Here's the question: When describing the facts of the case, should I describe the turntable as, well, a turntable, or should I just describe it more generically as audio equipment? If anyone is reading my article in 20 years, will they know what a turntable is? Will they wonder what a turning table looks like and why someone would want one? I like to think that people will still be playing vinyl LPs on machines like my Harman/Kardon T-65C for a long time, but it doesn't seem too likely.
Legal Versus Political Philosophy:

Judge Michael Luttig is generally perceived and described as more "conservative" than Judge J. Harvie Wilkinson III. Thus, I was surprised to read this tidbit in a Washington Post article this weekend:

In a 2002 article in Judicature, published by the nonpartisan American Judicature Society, three political scientists compared Luttig's recent opinions with those of five other appellate court judges considered potential Supreme Court nominees.

They concluded that Luttig's rulings — in the areas of criminal justice, civil rights and liberties and economic and labor regulation — were conservative 68.2 percent of the time. That still made him "consistently conservative," the authors wrote, but not as conservative as the other judges.

The most conservative, the study concluded, was J. Harvie Wilkinson III, Luttig's colleague on the 4th Circuit, who is also considered a potential Supreme Court nominee.

The article suggests that the reason for this counterintuitive result may be Luttig's commitment to textualism as part of his larger judicial philosophy:

Indeed, although Luttig's rhetoric has earned him a reputation as a staunch conservative, his adherence to textualism as he sees it has sometimes led to results that cannot be so easily categorized.

In 2002, Luttig became the first federal appeals judge to rule that inmates have a constitutional right to post-conviction DNA testing to try to prove their innocence, calling it "a matter of basic fairness." In 1999, he granted protection to a female college football kicker under the federal law, known as Title IX, that bans sex discrimination in federally funded educational programs.

This has been noted in the context of the recently-completed Supreme Court term, where in several high-profile cases some of the individual Justice's votes were hard to explain in terms of political ideology, but instead seemed to reflect differences in judicial philosophy, such as principles of federalism. Luttig has articulated his philosophy of textualism in a number of interesting cases over his time on the bench.

The Washington Post article refers to a 2002 article by Manning, published in the journal Judicature (85 JUDICATURE 278, available on Westlaw). Here's a summary of the key chart from that article (Table 3: "Percentage conservative decisions in three case type areas by possible Bush Supreme Court Nominees"):

[Continued Under Hidden Text]


Court Pick Soon?: The Washington Post is reporting:
  President Bush, accelerating his search for a new Supreme Court justice, appears to have narrowed his list of candidates to no more than a few finalists and could announce his decision in the next few days, Republican strategists informed about White House plans said yesterday.
  Advisers to Bush had anticipated an announcement closer to the end of the month, but the White House signaled allies over the weekend to be prepared for a nomination this week, according to the strategists, who asked not to be named because the process remains officially confidential. "We've been told to be ready," one strategist said.
  Meanwhile, Stuart Taylor makes the case against nominating Alberto Gonzales.
Remarkably Illogical Wisconsin Supreme Court Opinion:

Here's all you need to know: "we conclude that the $350,000 ceiling adopted by the legislature is unreasonable and arbitrary because it is not rationally related to the legislative objective of lowering medical malpractice insurance premiums."

The ceiling (on non-economic damages) won't have a large effect? Perhaps. Won't have a noticeable effect? It's possible. Is not "rationally related?" Only because the court seems to define "rationally related" as "having a guaranteed large effect." Applied consistently (which I don't expect it will be), under that standard, I would guess that a very wide swath of the Wisconsin Code is vulnerable to constitutional challenge.

Sunday, July 17, 2005

Sunday Op-Eds: I am gratified to see this morning that, despite Chief Justice Rehnquist's decision not to retire, the New York Times editorial board has already started using my op-ed template. (Or perhaps they just read the VC?)