Friday, August 5, 2005
In 1983, Roberts questioned life tenure for judges.--
In a 1983 memo, John Roberts raised questions about life tenure for federal judges:
Two decades ago, however, he reasoned that long-entrenched judges could fall out of step with the society they serve. Limiting terms of federal judges would ensure a fresh supply of talent while guarding against "ivory tower" elitism, he wrote.
The Constitution "adopted life tenure at a time when people simply did not live as long as they do now," Roberts wrote in an Oct. 3, 1983, memo to White House Counsel Fred Fielding that is now on file at the Ronald Reagan Presidential Library.
"A judge insulated from the normal currents of life for 25 or 30 years was a rarity then but is becoming commonplace today," Roberts wrote. "Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence."
Roberts, then 28, offered his views while analyzing a Senate resolution that called for limiting members of the federal bench to 10-year terms, after which they could be reappointed.
The Reagan administration opposed the proposal, arguing in part that lifetime tenure protected judicial independence. Though Roberts did not formally object to that position, he saw merit in set terms. He accepted an open-ended federal appeals court seat in 2003.
Ending lifetime tenure would "provide a more regular and greater degree of turnover among the judges," Roberts wrote 20 years earlier. "There is much to be said for changing life tenure to a term of years, without the possibility of reappointment."
In the same memo, Roberts railed against what he described as an overreaching federal judiciary. He suggested that lifetime tenure was defensible only if judges stuck to interpreting — rather than making — law. It was a frequent complaint through his writings of the time.
"It is certainly appropriate to protect judges from popular pressure if their task is limited to discerning and applying the intent of the framers or legislators," he wrote. "The federal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches."
As I said earlier today, the more I read about Roberts, the better I like him.
Push Polling Against John Roberts?:
A well-placed and reliable source (a.k.a. my mom) has informed me that efforts to oppose the John Roberts nomination apparently include "push polling." What is push polling, you ask? The National Council on Public Polls
A "Push Poll" is a telemarketing technique in which telephone calls are used to canvass vast numbers of potential voters, feeding them false and damaging "information" about a candidate under the guise of taking a poll to see how this "information" effects voter preferences. In fact, the intent is to "push" the voters away from one candidate and toward the opposing candidate. This is clearly political telemarketing, using innuendo and, in many cases, clearly false information to influence voters; there is no intent to conduct research. fake polling calls designed to use the perceived legitimacy of polling questions as a way of creating an impression about an event or person.
My well-placed and reliable source received a call today from someone claiming to be a pollster from the apparently nonexistent
"LST Research Center" who was conducting an opinion poll. The poll consisted of two questions. The first question was whether she was pro-life or pro-choice. When my well-placed and reliable source answered that she was pro-choice, the caller then asked for her views on the President's decision to nominate someone who wanted the Supreme Court to overrule Roe v. Wade
. My well-placed and reliable source then began arguing with the caller about the inaccuracy of the factual premise; the caller said that she was just reading from a script, didn't really know the details, and then hung up.
Has anyone else received similar calls? It would be interesting to know how widespread this practice is, and who is paying for it. Of course, if news reports are accurate, it's not exactly something that Karl Rove has standing to object to (see here
). Still, it's an unfortunate development.
Honesty and Accuracy, Even in Arguing Against People You Disagree With:
One reader writes, apropos my defense of the ACLU against charges of "frivolous" and "criminal" litigation:
If the ACLU is successful in their New York subway suit, we all lose our most basic freedom -- not to be killed by a bomb. If they are successful, it will be the end of riding on the subway (following a successful train bombing in the USA).
I usually agree with Eugene but in this case I think he has lost his usual common sense and is thinking only of the legal technicalities.
Distinguishing fair criticisms of one's adversaries from unfair criticisms is not a technicality. I've seen lots of people, left, right, or elsewhere, make the same mistake: Just because they think their adversaries are wrong in one way (e.g., propose an unsound view of the Constitution), they feel free to just throw a barrage of epithets at them -- their arguments are criminal, frivolous, pro-terrorist, dishonest, corrupt, Nazi, or what have you. And then, when a third party defends the targets against the unfair criticisms, the critics seem upset. How can you defend these bad people? They're clearly wrong!
Well, that our adversaries are wrong doesn't justify our making wrong (and unfair) arguments ourselves. Consider the message I quote above: My correspondent is complaining about what would happen if the ACLU is successful in their suit. That is flatly inconsistent with the argument that the ACLU's position is "frivolous." (To be frivolous, a legal position has to be not just a loser, but such a sure loser that it can't be justified as a good faith attempt to change the law.) If the ACLU's positions were really frivolous -- which is the supposed essence of the Christians Reviving America's Value call for "the US Congress to investigate the ACLU for widespread use of frivolous lawsuits" -- then why worry about the ACLU's lawsuit being successful?
If you think the ACLU's legal position is mistaken, explain why you think it's mistaken. Labeling that position with epithets that it doesn't deserve is, I think, on balance ineffective, since it undermines your own credibility. But effective or not, it's just wrong.
Before Criticizing a Group, It Helps To Get One's Facts Straight:
One commenter on my earlier ACLU post writes:
The ACLU may not be a criminal organization but it is certainly dishonest. It is not looking out for the interests of Americans, just a select group of Americans. The ACLU stood silent through decades of speech codes and 'verbal harassment' regulations on American campuses, all aimed toward non-liberal voices. It supports gender and racial discrimination, including outright quota systems. It excuses violations of the Constitution against non preferred groups while pretending to protect everyone's rights.
First, while I strongly disagree with the ACLU's position favoring race and sex preferences, I don't think this position is dishonest. There's a perfectly credible argument that discrimination against historically disfavored groups should be judged under a different constitutional rule than discrimination against historically favored groups. Again, I think this argument is mistaken, but reasonable minds can surely differ about this -- and one can certainly look out for the interests of Americans generally (for instance, as to the Fourth Amendment, Sixth Amendment, and the like) and yet take the view that discrimination against some groups is worse than discrimination against others. The ACLU is wrong here, but not dishonest.
Second, the ACLU most certainly did not stand silent as to campus speech codes. In Iota Xi v. GMU, the first federal court of appeals case striking down college speech codes (in 1993), the ACLU of Virginia filed an amicus brief in favor of the plaintiffs, who were punished for putting on a skit in blackface. According to a Nat Hentoff column -- and Hentoff has long been a vocal opponent of speech codes -- the two earlier district court cases that ultimately struck down campus speech codes, in Michigan and in Wisconsin, were filed by local ACLU affiliates.
In Newsom v. Albemarle County School Bd., a 2003 court of appeals, the ACLU backed a high school student's right to wear an NRA T-shirt (surely a "non-liberal voice"). For another recent example of an ACLU chapter's interceding on behalf of allegedly racially offensive speakers, see here. And the national ACLU's 1994 position statement on the subject condemns campus speech codes; I believe the national ACLU's anti-speech-code policy was adopted in 1991 (though there was a good deal of dissent within the ACLU about it, especially, I'm told, in the California chapters).
One can (and, in my view, often should) disagree with the ACLU's substantive positions. One can criticize them as dishonest, if one can really point to actual dishonesty, rather than just substantive disagreement. But if one is to criticize them, one should first make sure that one's own arguments are factually accurate.
Jonathan Rauch Condemns the Tobacco Settlement:
Thoughtful and well-written, as is characteristic of Jonathan's work.
Internet Porn Tax:
My friend and colleague (and fellow Kozinski clerk) Victor Fleischer (Conglomerate) writes (see the post itself for links):
Paul Caron points me to S.1507, a Senate bill that would impose a 25% excise tax on Internet porn.
Is it good policy? I'm sure my libertarian friends will freak out, but the policy doesn't sound so bad to me. The bill is premised on the notion that teenagers are heavy consumers of internet pornography, and teenagers and younger children are often victims of the industry. These are unfortunate negative externalities of the product, and taxing a harmful product is one way to reach a socially optimal outcome without having to regulate the activity out of existence. Funds generated by the tax will go to things like a cyber-tip line and a task force to investigate internet-related crimes against children.
Complicating matters is the bill's questionable constitutionality. The Supreme Court has not been friendly to Congressional attempts to regulate internet porn. And the Supreme Court has, in the past, struck down taxes that differentially burdened constitutionally protected speech. See Minneapolis Star v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983). Still, the tax here seems targeted at addressing the negative externalities caused by the activity, not at stifling the speech for the sake of stifling speech. It probably helps that the funding is mostly earmarked for law enforcement activities, not general revenue. What's not at all clear is how Congress came up with the number of 25% and whether this bears some reasonable relation to the externalities caused by the activity. It is an excise tax based on revenue, and surely if the number were 100% the Court would strike down the bill as an unconstitutional restriction of protected speech. I don't know enough First Amendment jurisprudence to know how hard the Court will scrutinize the reasonableness of the tax and how it is targeted, and my semi-educated guess is that the tax would survive scrutiny, but it seems likely that an Internet Porn tax will be subject to judicial scrutiny in a way that a fat tax would not be.
Of course, this being Congress, there's some question whether dedicating funds to cyber-tip lines, etc. is mainly for show. The wheels start to fall of the wagon as you move further down the bill. The tax will generate a lot of money, and perhaps the bill's drafters were struggling to figure out where to send remaining funds. Section 212(a)(6)(A), after moving down the cascade of recipients past law enforcement, R&D (to develop better filtering software) and educational training, includes the following provision:
(A) FEDERAL AGENCY SUPPORT- 50 percent of remaining amounts shall be used to provide funding to support child Internet safety activities, as well as activities combating sex trafficking and sex crimes against children, on the part of the following Federal agencies:
(i) Department of Justice.
(ii) Department of Commerce.
(iii) Department of Defense.
. . .
(xiii) National Aeronautics and Space Administration.
Yes, to protect children from sex crimes and sex trafficking, let's get NASA on the case. We all know what happened when Cartman was abducted by space aliens, and your child could be next.
I'll take up Victor's First Amendment invitation: The law seems probably, though not certainly unconstitutional. Content-based taxes on the sale of First-Amendment-protected materials (and recall that the law targets not just unprotected and illegal obscenity, but also constitutionally protected pornography) are generally forbidden, see Arkansas Writers' Project v. Ragland (1987).
Nor does it matter whether the government is trying to "address the negative externalities caused by the activity," as opposed to "stifling the speech for the sake of stifling speech." I don't think this sort of motivational distinction really works: Most times that the government seeks to "stifl[e] speech," it does so precisely because it sees speech as causing "negative externalities"; the two motivations aren't antonyms. And (perhaps because of this) the Court has specifically held that unconstitutional discrimination "can be established even where, as here, there is no evidence of an improper censorial motive. . . . Illicit legislative intent is not the sine qua non of a violation of the First Amendment."
Content-based taxes, like other content-based restriction, can generally be upheld only if the government can show that the law is necessary to serve a compelling government interest. But even if the interest in raising money to fight the allegedly harmful effects of Internet pornography (I take no position here on whether Internet porn is in fact substantially harmful) is compelling, it's pretty clear that content-based taxes aren't necessary to serve that interest; taxes that are unrelated to speech would do the job just as well.
The strongest defense of the tax would be that pornography, including constitutionally protected pornography, is different: Though it has some constitutional value, it's of lower value, and may therefore be more broadly restricted. The Court has seemingly adopted this view in some of its "erogenous zoning" cases and broadcast regulation cases.
Nonetheless, the Court has at other times disapproved of this "low-value speech" position; and more recently it has generally judged content-based regulations of nonobscene pornography pretty much as it has judged content-based regulations of fully protected speech. My guess, then, is that if the law is eancted, both lower courts and (if it comes to this) the Supreme Court will ultimately strike this tax down just as they would other content-based taxes.
Unfounded Attack on the ACLU:
I have many differences with the ACLU, but I find many of the attacks on the ACLU to be quite reprehensible. Consider, for instance, the following from the Stop the ACLU blog, quoting a letter from another group:
Yesterday the ACLU announced that they would be suing the city of New York for violating the rights of American citizens who use the public subways because they are subject to random searches. Whether you agree or disagree with the random searches, we all know they are intended for our security in a dangerous time. They are intended as a plan to thwart terrorists and protect Americans from harm.
Don Swarthout, President, Christians Reviving America’s Values, is releasing the following response:
“If the ACLU wins this battle in court they will receive a very large financial boost as they have from similar ‘victories’ in San Diego, Alabama and Virginia. When the ACLU wins their attorneys are paid hundreds of thousands of dollars by tax-payers.
“The never ceasing flow of litigation against cities, states, and the federal government is nothing more than fund-raising stunts. Many of the ACLU’s victories come not because their complaint is just, but because the municipality budget is inadequate to match the abusive onslaught.
“In New York, apparently the ACLU believes these searches are unconstitutional because they are random. Although the ACLU has also called metal detectors in airports an invasion of privacy. There is no pleasing the ACLU, because improving society or protecting the rights of American citizens is no longer its goal.
“Now the ACLU is coming against the Constitutional duty of the United States government which requires the protection of citizens. What is in question here is the definition of freedom. Freedom comes with responsibility. The ACLU has become an anti-Christian, pro-terrorist, entity whose only goal is to get the headlines to keep donations rolling in.
“The ACLU’s abuse of the legal system is criminal. For that reason Christians Reviving America’s Values is drafting a letter asking the US Congress to investigate the ACLU for widespread use of frivolous lawsuits. In the case of the New York lawsuit, the ACLU’s actions may also be dangerous to the citizens of New York City.”
I called Mr. Swarthout on the phone and I have full permission to reprint his statement here. He said he has come across our site when he was doing research a few times, and that he really appreciates what we are doing. Mr. Swarthout, we really appreciate what you are doing too. If people don’t wake up, this trojan horse named the ACLU may just destroy us from within. They consistently defend our enemies, and fight against our efforts to fight them. ACLU, root for the good guys for a change!
We wish Mr. Swarthout the best of luck in this letter to Congress. We hope it is successful, and that Congress will listen. And for those who want to defend the ACLU on this action…just remember…and if they are successful, and one day these terrorists blow up a few thousand in a subway, you will be able to thank the ACLU.
By filing lawsuits, the ACLU is exercising its (and its clients') legal rights and its (and its clients') constitutional rights: The Petition Clause, which protects the right to petition courts for redress of what one perceives as grievances. One may disagree with them. One may try to change the legal doctrines under which they're suing (by Congressional action, by persuading the courts to change the constitutional rules, or for that matter by constitutional amendment) to keep the ACLU from willing. One may call for changes to statutes that give prevailing plaintiffs in some civil rights actions the right to recover attorneys' fees, though I'm skeptical about that. But there's nothing remotely "criminal" about the ACLU's actions.
Filing an outright frivolous complaint -- which is to say one that is not "warranted by existing law or by a nonfrivolous [i.e., legally plausible] argument for the extension, modification, or reversal of existing law or the establishment of new law" -- is punishable. One can already get sanctions for the filing of such frivolous complaints. But I know of no systematic pattern of the ACLU's filing such frivolous complaints.
In fact, my sense is that most of the criticism that the ACLU faces comes because their arguments are too successful -- not only nonfrivolous, but actually ones that win in court. If the ACLU only filed complaints that were such clear losers to be frivolous, they wouldn't much bother people: At most, they'd waste some government lawyers' time, but since government entities tend to have lawyers on salary (and generally not very high salary), they wouldn't even waste much government money. In those frivolous cases, the government would fight the ACLU, win (by definition, since if the government lost, the case wouldn't be frivolous), and even get sanctions against the ACLU.
But in fact the ACLU often wins, and even when it doesn't, its arguments are generally quite plausible. For instance, the claim that random searches of people in subways are unconstitutional is an eminently plausible Fourth Amendment claim, perhaps even a winning one. Searches that aren't based on any individualized suspicion are usually unconstitutional; even some conservative Justices have said so. (See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (Thomas, J., dissenting) ("I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing."); Minnesota v. Dickerson, 508 U.S. 366 (1993) (Scalia, J., concurring) (expressing "doubt" as to whether even suspicion-based searches for weapons are constitutional, unless the suspicion rises to the relatively high level of "probable cause": "I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity").
There are some exceptions, including one for airport searches. Perhaps courts should extend this exception to subway searches, especially aimed at finding bombs. But given the current law, the ACLU's argument is eminently credible.
If you don't like the Fourth Amendment rules that make it possible for the ACLU to sue, fault the Justices who have developed those rules. (In some situations, fault the Framers for setting up the constitutional provisions based on which these rules have been developed; while the Fourth Amendment's ban on unreasonable searches doesn't clearly prohibit the New York searches, it doesn't clearly authorize them, either.) Or fault the Framers for maintaining the English system of justice, in which people have legal rights against the government, and are entitled to go to court to vindicate those rights, even when the majority believes (for good reason or bad) that the rights are dangerous to the common good. Or perhaps, at most, argue that while the ACLU has a legal right to do what it's doing, it ought to (presumably in highly unusual circumstances) refrain from exercising its rights.
But stop calling them "criminal" for exercising their constitutional rights. Stop calling their lawsuits "frivolous" when the lawsuits bother you precisely because they may well prevail. Stop calling them "pro-terrorist" when there's absolutely no reason to think that they indeed favor terrorism, and lots of reason to think that they favor (whether soundly or misguidedly) legal rules -- such as limits on government power to search -- that unfortunately sometimes protect terrorists while at the same time protecting law-abiding citizens. (It's far from clear to me that random searches are going to do much good at stopping suicide bombers, or that bans on random searches will help terrorists; but I acknowledge that some constitutional rules that the ACLU defends do at times protect terrorists as well as protecting law-abiding citizens.)
What is in question here, indeed, is "the definition of freedom." There is lots of room for good faith disagreement about the scope of our freedoms. But that some people have a broader view than you do -- whether it relates to the right to bear arms, the right to be free from unreasonable searches and seizures, the right to counsel, the right to spend one's money for political causes -- doesn't make them criminals, doesn't make them pro-criminal or pro-terrorist, and doesn't make their arguments frivolous.
Ken Karst on Judge Roberts:
My colleague Ken Karst -- one of the nation's foremost constitutional scholars, a solid liberal, and as it happens my free speech law teacher -- e-mailed this to some colleagues; I asked him whether I could blog it, and he graciously agreed:
From: Karst, Kenneth
Sent: Friday, August 05, 2005 8:57 AM
To: . . .
Subject: FW: Judge Roberts
In case anyone cares, here's a note I sent in response to a query from a member of the ABA's committee on the federal judiciary. Think of this as a one-time mini-blog.
From: Karst, Kenneth
Sent: Friday, August 05, 2005 8:37 AM
To: . . .
Subject: Judge Roberts
Dear Mr. Marshall,
Thanks for your letter asking for my views on the nomination of Judge Roberts to the Supreme Court. Alas, I have nothing useful to say about his history. I don't know Judge Roberts, nor have I seen him in action as an attorney or a judge. All I know about him, I have read in the press.
However, ignorance rarely prevents one from having a view, and I do have one. I am one of those liberal law academics whom Justice Scalia sometimes blames for the Supreme Court's straying from the True Path. Even so, I believe the Senate should confirm Judge Roberts's nomination. By all accounts, he is a first-rate lawyer, who listens carefully to arguments, even when they go against his initial inclinations. He seems to me to be a true conservative, who sees the judicial role as one in which courts conserve. I don't expect to agree with all his decisions, even on matters of intense controversy. I should compare him to the second Justice Harlan--with whom I often disagreed, but whom I still consider an excellent Justice.
Even though I have nothing to offer except opinion, I am grateful that you had me on your list, and I wish you and your ABA colleagues well in your deliberations.
Indymedia Server Seizure Update (AKA, We Told You So):
Do you remember the major online civil liberties scandal of October 2004, the Indymedia server seizure by the FBI? Recall that according to news reports
at the time, the FBI had shut down Indymedia's servers by taking servers owned by a hosting company named Rackspace. The story was sold as an "FBI tries to chill speech by shutting down website" story
, and received fairly wide mention in the press. The usual suspects were quoted, such as this bit from an AP story:
"The implications [of the seizure] are profound," said Barry Steinhardt of the American Civil Liberties Union, calling the Indymedia activists "classic dissenters" and likening the case to "seizing a printing press or shutting down a radio transmitter."
"It smells to high heaven," he said.
As you may recall, we here at the VC were pretty skeptical about this story. Here is what I posted about the case on October 26th, 2004
But what really happened? I decided to take a closer look, and I have reached a tentative conclusion: This story was badly misreported from the beginning. Not only did the FBI do everything by the book, but they didn't even seize or attempt to seize any computers.
. . .
Here's the important part: It seems fairly certain that the FBI order did not order Rackspace to hand over the server or shut down the site. Based on what we know, it seems highly likely that the order was obtained under the Electronic Communications Privacy Act, which gives the government the authority to compel information (not physical things) from ISPs. Why is this likely? There are a few reasons, but one is that Rackspace has claimed that it cannot disclose the details of what happened under a court order. A non-disclosure order is a "smoking gun" that ECPA provided the authority. Normal subpoenas are not accompanied by any type of order not to disclose, but ECPA allows prosecutors to apply for a court order requiring the ISP not to disclose the existence of an order to disclose information under 18 U.S.C. 2705(b). I can't be sure, but it seems highly likely that Rackspace's refusal to comment further is a response (whether justified or not) to a Section 2705(b) order. If that's true, all the FBI did was serve a court order to disclose information on Rackspace.
Why was Indymedia's service shut down? This post from Eugene offers the most probable answer; in all likelihood, Rackspace figured it would be easier to give up the server and let the law enforcement folks figure out what they want rather than go through and get the information themselves. It seems that the servers were not given to the FBI, however; the relevant servers were located in England, and the FBI has denied involvement. All we know is that Rackspace handed over the servers to someone in England, and that the servers were then returned to Rackspace a few days later — apparently after the relevant information was obtained. When its service was disrupted as a result of the server switch, and Rackspace was asked to explain what happened, Rackspace put out a press release pointing to the FBI for the problem: the statement says that "Rackspace is acting as a good corporate citizen and is cooperating with international law enforcement authorities. The court prohibits Rackspace from commenting further on this matter."
To summarize, it seems highly likely that the FBI only served an order to disclose information on Rackspace. Rackspace was lazy, though, and instead, on its own volition, handed over the entire server (to whom, we don't know). . . . Further, it's not clear why any gag order on Rackspace would forbid Rackspace from admitting this. I don't know much about Rackspace, but I wouldn't be surprised if they are taking an unreasonably broad interpretation of the nondisclosure order to try to shield their goof-up from the public.
(emphasis in original) The Electronic Frontier Foundation
, thinking it might have another Steve Jackson Games case
on its hands, filed a lawsuit to try to have the underlying documents unsealed so as to reveal the extent of the government's wrongdoing.
Okay, enough recap. Many of the documents have now been unsealed, available here
, and seem to reveal what I expected: the FBI did everything right, and the "seizure" (and possibly the cover-up) was the work of Rackspace, not the FBI. As I read the documents, it seems like Rackspace goofed and may have made up the gag order story to make sure that the blame for the shutdown was pinned on the FBI instead of Rackspace. Declan McCullagh
has the udpated story:
In October 2004, a federal prosecutor sent a subpoena to Rackspace Managed Hosting of San Antonio, Texas, as part of an investigation underway in Italy into an attempted murder. Under a mutual legal assistance treaty, the U.S. government is required to help other nations secure evidence in certain criminal cases.
The newly disclosed subpoena, which has been partially redacted, asks only for specific "log files."
But Rackspace turned over the entire hard drive at the time, taking the server offline and effectively pulling the plug on more than 20 Independent Media Center Web sites for about a week.
Rackspace claimed at the time that the subpoena required the company to turn over the customer's "hardware."
Now that the documents have been unsealed by a federal judge in Texas, though, Rackspace is backpedalling. "A Rackspace employee mistakenly used the word 'hardware' to describe the contents of a federal order," company spokeswoman Annalie Drusch said in an e-mail message to CNET News.com on Tuesday.
Drusch's e-mail also said: "Rackspace employees searched for the specific information requested in the subpoena but were unable to locate this information prior to the strict delivery deadline imposed by the FBI. In order to comply with the mandated deadline, Rackspace delivered copied drives to the FBI. . . .
Over at the Electronic Frontier Foundation website
, they're asking some interesting questions about this alleged gag order:
On October 8, 2004 Rackspace issued a statement that "The court prohibits Rackspace from commenting further on this matter." However, the unsealed documents do not contain a gag order; the court order authorizing the Commissioner's Subpoena only said that notice to other parties was not required.
On August 1, 2005, EFF spoke with Annalie Drusch, the Director of Corporate Communications for Rackspace Managed Hosting, seeking comment now that the case files were unsealed. We are awaiting a response.
This type of dynamic seems to happen a lot in online civil liberties stories. The key seems to be that the FBI and DOJ don't comment on pending cases and matters as a matter of policy, but refusal to comment always sounds kind of suspicious. To get the press very worked up, all that is needed is one vaguely credible person willing to say something that sounds like it may involve government wrongdoing. By the time it becomes clear that there was no 'there' there, the particulars of the story have been forgotten and people just have a general sense that the government was up to no good. Of course, sometimes it is true that the government has erred, and those cases are vitally important. Having a vigilant press is a very good thing. At the same time, there seems to be an unusually low signal-to-noise ratio in this area. The stories follow a predictable course, from press frenzy to Heather MacDonald
story recapping the misunderstanding months later.
What do these words have in common? You'll know it when you have it. Once you get it, post some more examples in the comments (with citations, please).
I've posted the following challenge in the comments: When did the phenomenon that joins the four words above begin? What is the earliest reference to an example of it that we can find?
Housing stocks are getting massacred today. A good day to check out the housing bubble blog.
Interesting Scientific Evidence Cases:
Two interesting headlines in the latest BNA Expert Evidence Report:
(1) "Silicosis Diagnoses Were 'Manufactured,'Court Finds, Recommends Mass Dismissal." For more on this story, see Ted Frank's PointofLaw entry.
(2) "Suit Says Animal Tests Were Unreliable When Epidemiological Data Was Available." A Vioxx plaintiff is arguing that Merck should not be able to rely on animal data showing Vioxx's safety in the face of contradictory human clinical data. The interesting aspect of this case is that 99% of the time, it's plaintiffs who are arguing that animal data should be admitted in the face of contradictory human data. Indeed, the plaintiffs in this case(Tufford v. Merck) are relying on decisions disallowing the use of animal tests by plaintiffs to prove causation.
Roberts and his Pro Bono Work on Romer.--
I find the discussion of John Roberts' pro bono work on Romer interesting because it shows one or both of two things: either Roberts favors sexual liberty or he really does approach legal issues as a lawyer, able even to offer his very valuable time without pay to helping a client take a position at odds with conservative political views.
People should not discount Roberts' ability to decline to work on a hot-button case, if he were too careerist to take on a controversial case or so morally opposed to gay rights that he did not want to lend his help.
I did a bit of pro bono work for the National Organization for Women (NOW) on a big abortion clinic bombing case that went before the US Supreme Court twice (reading briefs, suggesting strategies, some limited research, mooting an argument). Before one of the Supreme Court arguments, I set up a small mooting session at Northwestern. We got a panel together, but both of the conservatives (former Supreme Court clerks) whom I asked to moot declined. I didn't ask them why, but either morality or potential careerist reasons were likely.
So I wouldn't discount the importance of Roberts' mooting and advising on Romer v. Evans, though I have no idea whether it means that he is inclined toward recognizing sexual liberty in the Constitution or whether it means that he approaches even hot-button political issues according to the role he should play in the legal scheme.
Either way, the more I read about Roberts the better I like him.
This is another example that very well educated conservatives rarely fit the public stereotypes assigned to them. While very high educations tend to make liberals more consistently liberal, very high educations tend to make conservatives less consistently conservative (and thus less extreme) on social issues. For this reason, those presidential nominees targeted as "outside the mainstream" are very probably not extreme at all. While they would be likely to be conservative on some issues, on some other issues they would be likely to take the liberal side of things.
This is a bit like highly educated bloggers: while supposedly "conservative" bloggers might support Bush's court nomineees and the War on Terror, such "conservatives" often take the liberal side on some issues, such as perhaps abortion rights, gay rights, assisted suicide, and stem-cell research, and they might also believe in evolution, oppose mandatory school prayer, or favor the right to burn flags. Such a diversity of views among the highly educated left is much more rare.
UPDATE: More on this at the New York Times, Althouse, William Woody, and A Knight's Blog.
Thursday, August 4, 2005
From his Blue Mass. Group site (blue to reflect his Democratic colors):
The LA Times reports today that Supreme Court nominee John Roberts gave substantial behind-the-scenes assistance, pro bono, to the activists who asked the Supreme Court to overturn Colorado's infamous "Amendment 2," which prohibited municipalities in Colorado from adopting any gay-friendly ordinances or policies. . . .
What to make of this? Is Roberts a clandestine agent of the dreaded "homosexual agenda"? Is he, in fact, secretly gay? (Perhaps that would explain his son's controversial pastel clothing?)
Maybe. But more likely, he was doing his job. A partner at Roberts's firm was working with the plaintiffs in Romer; the partner asked for Roberts's help (Roberts was, after all, the firm's best Supreme Court lawyer), and Roberts agreed. And having agreed, he gave it his all, reviewing briefs, preparing the lawyers for oral argument, and generally being "terrifically helpful." That is exactly what lawyers are supposed to do.
This is, in other words, an excellent illustration of how difficult it is to discern a lawyer's views from his professional activities. . . .
I will say this, though. It is of course always open to a lawyer to decline to participate in a case because for whatever reason the lawyer cannot in good conscience represent the client's interests in that case. The fact that Roberts agreed to participate in Romer at least suggests that he was not viscerally, fundamentally opposed to the pro-gay rights result that the plaintiffs sought in that case. . . .
More at David's site.
(a phrase that seems almost sacrilegious in the U.S., but that describes a common phemonenon, I'm told, in English newspapers): Eric Muller points to a good one, with an interesting anecdote about law, marijuana, and more.
Economics Blog Rankings:
Newmark's Door has a ranking of the top Econmics Blogs. (HT: Andrew Samwick at Vox Baby).
A special shout-out to my GMU Economics colleagues at Marginal Revolution, Cafe Hayek, Knowledge Problem, and Econlog, all of whom fare pretty well on at least some of the measures used (and all of which I read regularly).
I noticed this article on the payola settlement the other day, which dusted off old memories from my Econ grad student days reading Coase explaining the efficiency of payola in the recording industry. Apparently some lessons have to be relearned every generation or so.
Josh Wright guest-blogging on the Conglomerate has an excellent analysis of the case, with an update and extension of Coase's classic article, plus an explanation of why similar deals are efficient in other contexts as well (such as grocery store slotting).
I love his closing paragraph on the unintended consequences of General Spitzer's "victory":
Because radio airtime is a substitute for advertising, it is completely unsurprising that music publishers desired to collude to stop advertising --- an important dimension of competition for record sales. Collusion is notoriously difficult to accomplish in the first instance, and even harder to sustain because members of the cartel increase profits by deviating from the collusive agreement. Successful collusion often takes a third party to regulate the agreement and punish defectors. Occasionally, would-be cartel members are able to persuade the government to take the job. It appears that Spitzer may succeed where the recording industry has failed for over a century by stepping up to police the industry restriction on competitive payments for spins.
Sorry, I originally forgot to post the link to Wright's post. It is there now.
Michael Barone on Constitutional Age Limits:
Michael Barone has a nifty post on his new blog on the historical background to the minimum age requirements in the Constitution.
Legal Affairs Debate Club:
I'm delighted to say that the Legal Affairs Debate Club
will feature a debate next week about my forthcoming article, Searches and Seizures in a Digital World
. I have just posted a reworked and revised draft of the article, available here
; the article is about how the Fourth Amendment should apply to government searches of personal computers. I will be joined in the debate by Professor Susan Brenner
of the University of Dayton Law School. Susan and I will start our debate on Monday and go through the rest of the week.
Question for Bankruptcy Professors on Statutory Supplements:
Much to my surprise, although the bankruptcy reform legislation was enacted in April, West does not have a current Bankruptcy statutory supplement (with the 2005 amendments) available for classroom use this Fall. For the past several years, I have used West's "Law School Edition" of the statutory supplement, primarily because it has Legislative History as well as the Code itself.
Are there any bankruptcy profs out there who have been using the "Law School Edition" and are aware of a suitable replacement available for classroom use this fall? It must, of course, have the most current text of the Bankruptcy Code (preferably blacklined), and ideally legislative history for the rest of the Code as well. I assume other profs are in this same situation if they are teaching bankruptcy in the fall. So you can respond to me directly if you like, and I will post as an update anything useful that I find out.
Alabama Says "Don't Mess With Our Property":
Alabama yesterday became the first state to limit Kelo-style takings, unanimously passing legislation in a special session. My favorite quote is from one of the sponsors in the Alabama Senate:
"We don't like anybody messing with our dogs, our guns, our hunting rights or trying to take property from us," says state Sen. Jack Biddle, a sponsor of the law.
As the owner of two Labrador Retrievers, I'm with Sen. Biddle on this one.
Other states are exploring similar legislative and state constitutional responses:
Calling the high court's June 23 ruling "misguided" and a "threat to all property owners," [Alabama Governor Bob] Riley said, "A property rights revolt is sweeping the nation, and Alabama is leading it."
The backlash against the judicial ruling has not received much attention in the national press, although legislative leaders in more than two dozen states have proposed statutes and/or state constitutional amendments to restrict local governments' eminent-domain powers.
Besides Alabama, legislation to ban or restrict the use of eminent domain for private development has been introduced in 16 states: California, Connecticut, Delaware, Florida, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee and Texas.
Legislators have announced plans to introduce eminent-domain bills in seven more states: Alaska, Louisiana, Oklahoma, Ohio, South Dakota, South Carolina and Wisconsin, and lawmakers in Colorado, Georgia and Virginia plan to act on previously introduced bills.
In addition, public support is being sought for state constitutional prohibitions in several states -- Alabama, California, Florida, Michigan, New Jersey and Texas.
I have been contacted by some cities that are considering similar limitations as well (I'm not sure if they are public yet).
Sadly for Justice Souter, the story does not report New Hampshire as one of the states looking at imposing such limits, so it looks like he is stuck having to take his chances with the political processes to try to fend off the private developer that wants to build the Lost Liberty Hotel on his property.
Congratulations to Bill Kovacic:
Congratulations to my friend and former FTC colleague Bill Kovacic (and Orin's current colleague) for being nominated as a Commissioner to the FTC to replace Orson Swindle, who completes his period of distinguished service to the Commission. Bill was General Counsel of the FTC during my time as Director of the Office of Policy Planning. Not only does Bill have an amazing knowledge of antitrust and consumer protecition law, he is one of the truly finest people I have ever met and worked with. He also has an immense appreciation for the history and capabilities of the FTC. It is a well-deserved honor for Bill and even more, a great honor for the country. I think is a testament to the quality of the leadership of the FTC over the past dozen years (Pitofsky, Muris, Majoras) that they have also been able to draw in such able non-Chair Commissioners as well (including minority-party Commissioners, such as Liebowitz and Harbour).
An interesting question is what happens now with the FTC antitrust practice at Jones, Day, one of the leading antitrust firms in town. Kovacic's wife is a partner at Jones, Day, and Chair Debbie Majoras is a former Jones, Day partner. Depending on the recusal policies adopted, this could conceivably recuse two of the three Republican members of the Commission for mergers involving Jones, Day. Of course, this will leave unaffected Jones, Day's DOJ practice.
As for outgoing Commissioner Swindle, I am not aware of his plans after leaving the FTC. But working with Commissioner Swindle was one of the great privileges of my time at the Commission. I just can't say enough about how much I admire Commissioner Swindle. He is a true American hero and a remarkable voice of common sense and sound judgement, not to mention an incredibly friendly and honorable man. I will confess to feeling a bit of awe every time I met with him in his office, surrounded by the memorabilia of his time in the service and Vietnam. An amazing man with an amazing life story.
Plus, he was one of the few fellow Atlanta Braves fans in a Commission seemingly dominated by Yankess fans (hiss). It is unclear what impact Kovacic's appointment will have on the balance of baseball loyalties at the FTC. Perhaps this issue will come out in the confirmation hearings.
Wednesday, August 3, 2005
Man Clones Dog:
The Washington Post
has the story. Of course, it would be much more newsworthy if the headline were Dog Clones Man.
The recent discovery of another Pluto-sized object orbiting the Sun brings up the question: Is Pluto even a Real Planet, in which case this new one has a similar claim to planethood (planetosity?), or is it merely one of thousands of minor-planet poor stepchildren of the solar system? And this brings up one of my favorite arguments on the subject, which I noted in 2002:
ALWAYS A PLANET TO ME (to the tune of Billy Joel's "She's Always A Woman to Me")
He can orbit the sun, he can look like a moon
He can leave the ecliptic from April to June
He'll be just a faint smudge, magnitude twenty-three
He hides in the sky, but he's always a planet to me
Ohhh...a potato-shaped ball...
He can drift where he wants
He's a relic of time
Ohhh...if he's made of pure ice
Or of vapor and dust
It's the same to my mind
If he zooms in near us, would he show us a tail?
Was the Kuiper Belt once the great home whence he sailed?
And if he gets demoted, who'll be next, Mercury?
And the most he can do is cast shadows, it's true
But he's always a planet to me
[Attributed to Steven DeRose, Chief Scientist, Brown Univ. Scholarly Technology Group; if anyone has reason to doubt this attribution, and can suggest a more accurate one, please let me know.]
I've been thinking of a particular kind of pun, which I can best describe using the quintessential example:
Have you heard? The Pillsbury Doughboy died. [Oh, how sad! How?] Yeast infection.
For want of a better term, I therefore call them "doughboys." The other example I know of is:
Have you heard? Cap'n Crunch died. [Oh, how sad! How?] Cereal killer.
No, I'm not claiming this is a high art form -- but I thought I'd open up the comments for people to add others. Remember, the goal isn't to mock someone (no matter how much they deserve it); it's just a pun, preferably a slightly absurdist one.
Presidential Word Play:
I won't even post answers to these, since they're too easy, but I imagine most of you will be surprised by how long it takes you to think of the answers:
Another very amusing column by Cathy Seipp about my town's dysfunctional signature industry. It closes with this funny story:
Screaming actors, it seems, can be easier to deal with, perhaps because they are not always famous for their brains. Many years ago, I read a story about how Roger Moore (a nonscreamer) took a younger actor aside and suggested he stop attacking everyone on the set. “I'm not in this business to win a popularity contest,” the screamer fumed. “I just want to be a good actor.”
“Well, you've failed at being a good actor,” Moore replied reasonably. “Why not try for the popularity contest?”
Justices and Religion:
Professor Bainbridge has a thoughtful post on Justices' religious faith and their legal decisions.
John Roberts Internal Memo on the Role of the Courts and DOJ:
The National Archives
has put up a page with a bunch of the more interesting internal DOJ memos John Roberts wrote as a young lawyer, and Chris Geidner
has found one memo in particular
that paints a fascinating picture of how Roberts views judicial decisionmaking and government institutions (or at least how he did when he was a young lawyer).
The background of the 2/16/82 memo is that Roberts' boss, Attorney General William French Smith, was scheduled to give a speech to conservative groups. Roberts was tasked with coming up with ideas for how to respond to criticisms from conservatives that the Reagan DOJ was not conservative enough. The National Review and the Heritage Foundation had been criticizing DOJ for not not taking consistently conservative views in cases, and for helping to select Sandra Day O'Connor as a Supreme Court nominee. Roberts wrote a memo on possible responses to this criticism; in the course of the memo, he offers some interesting suggestions about the role of the Supreme Court and government more generally:
A related criticism [conservatives have made about the Reagan DOJ] focuses on the screening and appointment of federal judges, highlighted by the O'Connor debate. The assertion is that appointees are not ideologically committed to the President's policies, again with particular emphasis on the social agenda.
Here again I do not think we should respond with a "yes they are"; rather we should shift the debate and briefly touch on our judicial restraint themes (for which this audience should give us some credit). It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decisional process — i.e., so long as they believe in judicial restraint. This theme has to be glossed somewhat, because of the platform, but we can make the point that much criticism of our appointees has been misdirected. Judges do not implement policy in the true conservative view of things, and the hot issues of today will not be those of ten or fifteen years hence, when our judges will be confronted with new social issues. Our appointments process therefore looks beyond a laundry list of personal views to ascertain if the candidate has a proper appreciation of the judicial role.
We have been criticized [by conservative groups] for not following Reagan policy in the Grove City, North Haven, and ERA cases. Perhaps without naming specific cases, we can make the point that we must defend acts of Congress in the courts (ERA) and must enforce the laws as written, not rewriting them to comport with policy desires (Grove City, North Haven). This is the role of the Department in the constitutional system, and our conservativism believes in that system. Any other approach would be trying to use the courts to set policy, having policy set by the Executive rather than Congress (cf. Bob Jones), or inviting Congress or other intervenors to present the position of the United States in court.
(emphasis in original)
It's hard to read too much into this one memo, but to me it's consistent with the idea that Roberts is less a committed political conservative than a committed judicial conservative of the Harlan/Frankfurter school. If his views today are the same as they were in 1982, Roberts' conservatism is a conservatism that "believes in the system" of institutions, not one that pushes the law to reach conservative results. That's the sense I get from the memo, at least.
Tuesday, August 2, 2005
The Vast Right Wing Conspiracy Revisited:
Congratulation to the People for the American Way for getting their entire collection of John Roberts talking points into a single "news" article
in the Legal Times.
The New York Times Fashion section ran an opinion piece Sunday titled "Longing for a Cuss-Free Zone." Now I don't like profanity in conversation, though I have nothing against it in fiction or in humor. (I often much enjoy off-color jokes, if they're funny, and don't find that the profanity makes them inherently less -- or more -- funny.) But one thing I found interesting about the article is that it didn't really explain why the author longs for a cuss-free zone, or why we should.
So what exactly is wrong with profanity? Let's focus for now on "fuck," "shit," and the like, and set aside both insults and relatively light profanity (such as "damn" and "hell," which are at least pretty light in my big city secular circles); let's also set aside any legal questions about when such speech should be constitutionally protected. Why do I get annoyed -- not tremendously annoyed, but still annoyed -- by hearing a lot of it? Should I be annoyed?
One possible answer is that we shouldn't be annoyed by it. Perhaps we should teach our children not to use it, the theory would go, but only because other people are annoyed by it. Under this theory, the decision to use or not use profanity has become a shibboleth, much like whether one uses "ain't": By listening to whether a person uses profanity you might learn a bit about his social class or his affinity group, and you might want your children to signal membership in a particular class or group. Yet I don't think that's all there is to it.
Likewise, some people suggest that we disapprove of profanity just because we're too Puritanical; if only we realized that there was nothing wrong with sex, or for that matter with excretion, then we wouldn't view "fuck" or "shit" as bad at all.
Another possible answer, which I've heard from some people, is that use of profanity reveals lack of creativity or inarticulateness: If every other word from your mouth is "fucking," that shows that you don't know how to speak in a more interesting and precise way. But I don't think that's right; people's reaction to people who use profanity is quite different (and usually more negative) than their reaction to people who simply speak monotonously, or to people who use imprecise words.
Others say that profanity is wrong because it's vulgar, debasing, dirty, or what have you. But that's just a label or a metaphor -- it doesn't explain why profanity is bad.
Here's my tentative answer (with apologies in advance if it's too obvious): Profanities have historically been ways of conveying anger or contempt. "Fuck," for instance, is often (not always, but often) a reference not just to sex but to sex that involves contempt for one of the participants, and often a reference not to sex at all but simply a signal of anger. The deliberate transgression of taboos has intensified this emotional message: The implicit message is often (again, not always, but often) "I'm so angry or contemptuous that I'm going to use this taboo word precisely to convey the strength of my feeling." And this message remains of anger or contempt to some extent even if, from context, one can figure out that the person isn't angry or contemptuous -- the context can soften the emotional impact of the word, but it often doesn't eliminate it.
And many people are uncomfortable being around other people who are apparently angry or contemptuous. Anger and contempt are emotions that, we've learned, are sometimes followed by other things -- personal insults, or even fights. Hearing people express these emotions, even when one is not the target of those emotions, makes us uneasy and unhappy.
I noticed this most clearly once when I was playing a chess game against a classmate, who swore when he realized he'd made a bad move. I knew he wasn't really getting angry at me; if anything, he might have just been getting angry at himself, or maybe he was just swearing out of habit. But it was unpleasant for me to be around a person who was behaving in an angry-seeming way.
Of course, if people altogether stop using a word to convey a message of anger or contempt, then over time it will lose this connotation. My sense is that this is one reason why, at least in some circles, "damn" and "hell" don't really raise many eyebrows. Likewise for terms such as "bloody," which don't have a visceral effect on many Americans even if the Americans know that the term is (or at least was) a profanity in England.
But so long as these words are often used to convey these emotions, they will carry an angry or contemptuous connotation even if other contextual cues suggest the emotion is not intended. This may also explain why at least many people have a different reaction when they hear the words in a joke, or in something that's clearly playacting: That sort of contextual cue may be so strong that it becomes very clear to us that the anger or contempt isn't real, but purely fictional.
If I'm right, then the main problem with these words isn't "vulgarity" per se or reference to bodily functions per se. Rather, it's that the reference uses words that are often used to convey an emotion (as I suggested, anger or contempt) that people find unsettling and unpleasant.
This, though, is just a tentative thought on the subject -- I'd love to people's (polite!) views on the subject, in the comments thread.
ACS Convention Balance:
I want to add to Orin's post about the ACS convention that, months ago, they invited me to speak on their panel on the Privileges or Immunities Clause. I was forced, regretfully, to decline because I was scheduled to be in Germany until Saturday afternoon. After I spoke at their Supreme Court Review at the National Press Club in June, they renewed their invitation and even considered the idea of reordering their program so the panel on Privileges or Immunities took place after my arrival at Dulles. (Ultimately they wisely decided not to do so, as there was a great risk that flight delays from Europe might cause me to miss even a rescheduled later panel. Altering a schedule at that late date would have been extraordinary for any conference.)
Naturally, I was impressed with and grateful for their efforts to include me in their program and look forward to other such opportunities in the future.
Related Posts (on one page):
- ACS Convention Balance:
- ACS Convention Report:
What's Wrong With This USA Today Item,
from the July 22 issue?
All places have, on average, the same amount of daylight (12 hours a day, setting aside possible technical quibbles having to do with twilight and the like). Southern states have more than the northern ones during the winter, but less during the summer.
What's with ABC?
I was just asked to do an interview for ABC's Guilt or Innocence spot, on a controversy involving the First Amendment. Sounds good; I like doing these things. As always, these gigs don't pay anything — perfectly fine by me.
To my surprise, though, while every other network I've dealt with sends a car to pick up and return the guest (based on my clear and fresh recollection, CNN, Fox, and MSNBC, but I'm sure that's been true of everyone else except perhaps the NewsHour with Jim Lehrer), the ABC people told me they didn't do this any more. What's more, their studio is way on the other side of Hollywood, which given afternoon traffic would likely be 45 minutes there and back.
If they had only sent a car, that would be one and a half hours that I could spend working. (Trust me, no-one wants this sort of a car for prestige, since there's no prestige to it; it's just a way of avoiding wasting more time than necessary.) If I have to drive myself, that would be one and a half hours that I'd spend driving through nasty traffic. And this so I can provide them a free service. I thus regretfully declined.
Seems like a pretty short-sighted move on ABC's part. They'll still get guests who have rarely done television, and see this as a great deal of fun. (I still see doing TV appearances as some fun, but not nearly as much as when I started.) They'll still get guests who have consulting careers they want to advance, or who are deeply ideologically invested in a position. But I suspect they'll lose quite a few people who are experienced, objective, and busy. Aren't those the very sorts of people they'd most want?
And, yes, I do see something amusing in a blogger complaining about a project that requires spending time with no payment . . . . Suffice it to say that blogging is fun, and driving isn't.
UPDATE: OK, score one for ABC, at least from my perspective: They're willing to have me on by phone, presumably with my picture on-screen. That might not be optimal television -- though given that they'll probably just have a sentence or two from me, I doubt it will matter much. But it sure is convenient for me.
Should Supreme Court Justices Have Fewer Law Clerks?:
Michael Barone has an op-ed in the Washington Times
arguing that Supreme Court Justices should have fewer law clerks. According to Barone, the fact that Justices have four law clerks these days has led to more confusing and less clear legal opinions. The Court's opinions are no longer crisp and simple, as they were in the 1920s, but rather are complex, long, and divided. Here is the evidence Barone offers in support of his conclusion:
The proliferation of law clerks — justices got two in 1948, three in 1970, four in 1978 — has proliferated separate concurring and dissenting opinions.
The two-clerk era, saw an annual average of 107 opinions of the court, 78 dissents and 33 concurrences. In the three-clerk era, there were 146 opinions of the court, 134 dissents and 73 concurrences. In the four-clerk era, when the Rehnquist Court started hearing fewer cases, there were 118 opinions, 98 dissents and 65 concurrences.
In other words, there were 104 separate opinions for every 100 opinions of the court when justices had two clerks, 142 when they had three clerks and 138 when they had four.
And the opinions got more complex. In the 1920s, Chief Justice William Howard Taft encouraged justices to agree on unanimous opinions, and when justices disagreed there was usually just one crisp and clear dissent. Today on many, many cases, we get hundreds of pages of opinions, and justices stating agreement with parts I, II(B) and IV of the majority opinion and disagreement with parts II(A), II(C) and III. You can't read them without making a flow chart showing each justice's position first.
Once, Supreme Court opinions were widely read and understood by interested citizens. Now, they're mostly read by law professors and practicing lawyers paid $500 an hour or more to do so — and by law professors and law firm partners making hiring decisions, who want to know which opinions their applicants have written. All this has resulted in opinions that complicate rather than clarify the law and encourage litigation rather than set clear rules everyone can follow.
Is Barone correct? I doubt it. First, notice that Barone's evidence is actually pretty weak. The numerical differences Barone identifies are quite small, and his other claims seem a bit suspect. For example, Barone's numbers suggest that the situation actually improved slightly when the Justices went from three clerks to four clerks. The number of opinions filed per case declined a bit, contrary to his theory. Also, is it really true that Supreme Court opinions were widely read by the public in "the old days"? When was that?
Let's assume Barone is right that opinions are more complex and less clear today than they used to be. The question is, why? The most likely explanation is the dramatic change in the Supreme Court's docket over the last 80 years. Federal law used to be fairly narrow, and the number of cases that worked their way up to the Supreme Court was small. In that era, the Supreme Court used to take lots of simple and straightforward cases. It didn't have any discretionary jurisdiction until 1925, and even after 1925 used to take a good chunk of the cases petitioned.
These days, the scope of federal statutory and constitutional law is much broader than it used to be. The Justices receive more than 8,000 petitions every year asking them to review lower court cases, and many of those cases are very complicated. The role of the Court has shifted as the number and complexity of petitions has grown; the Court has tended to reserve its role for the most difficult and important cases that have divided the lower courts. The Court takes fewer cases, but my sense is that the cases are on average more difficult and more complex than they used to be.
There may be multiple reasons why the Supreme Court's opinions tend to be more complicated today, if in fact they are. Computers have made writing and editing easier, which may have led to longer opinions. And law clerks may have played some role in facilitating the shift to a more selective Supreme Court docket, because each clerk spends about 25% of his or her time helping the Justices sift through the 8,000 petitions and identifying the most difficult and important cases to review. At the same time, my sense is that the primary reason for any increase in the complexity of opinions isn't the law clerks. The primary reason is that the cases the Court hears these days are, well, more complex.
Thanks to How Appealing
for the link.
Statistically Improbable Phrases:
A few months ago, Amazon.com began listing "Statistically Improbable Phrases" ("SIPs") for certain books. These are phrases that appear in a book disproportionately to how often they appear in the rest of the books in Amazon's database. (By comparing the phrases to the rest of the database, Amazon gets rid of common contentless phrases like "the man said," etc.)
Try to identify the ten books whose SIPs are listed below. (Simply googling each list will readily provide the answer... so don't do that.)
tyrannosaur roared, soft hooting cry, big rex, duckbilled hadrosaurs,
little raptor, two raptors, lizard bites, basilisk lizard, east dock,
cilice belt, lame saint, seeded womb, lettered dials, corporal
mortification, rosewood box, sacred feminine, royal bloodline, stone
cylinder, sweater pocket
roque mallet, hedge lion, hedge animals, roque court, hotel truck,
inhuman place, concrete ring, batwing doors, bug bomb, mallet head,
brass nozzle, silk wallpaper, wiped his lips
gun show loophole, car tags, assault weapons ban, independent counsel law, defense downsizing, family leave law, people from welfare
social epidemics, transactive memory, mouth epidemics, teenage smoking
belt sewer, whole barricade, big sou, vocal mothers, little barricade,
two barricades, forty sous, sixteen sous, fifteen sous, detracted
nothing, fifteen hundred francs, thirty sous, assassinated man, eighty
francs, fifteen francs, four sous, hundred livres, twenty sous, making
least black boy, bull goose loony, day room door, big black boys,
wicker bag, three black boys, ward policy, drug room, tub room, two
black boys, dorm door, red capsules
certiorari before judgment, agriculture languishes, popularly elected branches, oral advocate, junior justice, senior associate justice, packing plan, eight colleagues, petitions for certiorari
hibiscus plant, old professor
original public meaning, commerce that occurs, unenumerated liberties, moderate originalism, procedural assurances, first come rights, unenumerated rights, regulate commerce among the states, assurances that the laws, judicial nullification, originalist interpretation, rightful activity, natural liberty rights, latitudinarian interpretation, trade with foreign nations, enumerated end, state ratification conventions, bounded freedom, signal bleed, meaningful scrutiny, lawmaking system, constitutional construction, bank speech, rightful conduct, state law rights
ACS Convention Report:
I had a terrific time at the American Constitution Society convention
this weekend. A few thoughts and reactions to the convention:
1) The ACS convention is very similar to the Federalist Society's annual Lawyer's Conference
. It covers many of the same topics, and even shares a number of the same speakers. The biggest difference between the two is that the Federalist Society has separate conventions for lawyers and students, whereas the ACS convention has one combined convention. Other than that, it's very much the same: lots of judges, activists, professors, and former government officials walking around and chatting, and interesting and provocative panels with at least one person from the "other side." (The Federalist Society's lawyer's conference has somewhat more balanced panels, but the ACS deserves credit for having a right-of-center presenter on most of their panels this year).
2) Anyone who is a law professor or a wannabe law professor should consider going to the ACS convention, regardless of where you fall on the ideological spectrum. While the ACS convention is progressive/liberal, its chosen strand of progressive/liberal is more or less the mainstream of legal academia. Indeed, given that the ACS presents at least one right-of-center presenter on each panel, it probably ends up with a more fair and serious presentation of conservative ideas that many other academic conferences on similar topics. The uniformly high quality of the presenters left me thinking that this is what the AALS annual meeting
should be like (but generally isn't).
3) It's hard to pick favorites from among such a strong group, but my two favorite presentations of the conference were probably those given by Judges Alex Kozinski and Michael McConnell. Judge Kozinski was both very funny and quite effective in arguing that we should be skeptical about interpreting the Constitution in light of our moral values; Judge McConnell gave a very powerful analytical critique of the Supreme Court's recent decision in United States v. Booker
Related Posts (on one page):
- ACS Convention Balance:
- ACS Convention Report:
Monday, August 1, 2005
Asking for A Little Respect:
Doug Berman, the latest lawprof guestblogger over at PrawfsBlawg
(which perhaps should be renamed GuestsBlawg
), has an interesting post asking how blogs can be improved as an academic medium.
Stuart Taylor On Querying Roberts:
Stuart Taylor offers a typically thoughtful discussion
of the pros and cons of requiring Supreme Court nominees to disclose how they would expect to vote in particular cases if confirmed to the Supreme Court. Taylor gets to the issue that I think is the real question: how requiring a nominee to answer at the hearing stage would impact the White House's selection process.
As of now, the president and his people avoid asking potential nominees detailed questions not only because of ethical scruples but also because they know that senators would demand full disclosure of all questions and answers; would denounce the White House for exacting and the nominee for providing "litmus-test" answers; and would properly expect similarly detailed answers to their own questions.
The converse is also true. To the extent that senators succeed in forcing nominees to detail their views publicly, the White House will feel freer to grill potential nominees secretly. Does the president want a nominee who has implicitly committed to vote in certain ways on abortion, gay rights, religion, and — most important of all — the president's own claims of virtually unlimited war powers? He could direct his staff to grill would-be nominees until the staffers get the right answers.
Of course, in order to win confirmation, the nominee would have to give very different sworn testimony to the Senate. So presumably, the White House would not keep transcripts. But once on the Court, those who had successfully slimed their way through this gantlet would know that their sponsors and friends in the White House were watching.
Would such new justices adhere to their secret commitments, or to their public ones? Would they welsh? Do we want honest, independent jurists? Or do we want political hacks?
I'm not sure of where I come out ultimately on the normative question of how much nominees should be required to disclose. But I think Taylor may be on to something. As an abstract question, it seems to me that disclosure of a nominee's tentative thinking on a question is mostly a good thing, all other things being equal. The tougher question is the presumptive need for information symmetry at the selecton and hearing stage. As Taylor points out, if detailed questioning at the latter stage is okay, then detailed questioning at the former stage presumably is okay, too. Given that, I'm not sure if a regime of more detailed questioning at the hearing stage would have the effect that its proponents think. VC readers, what are your thoughts?
Hat tip: Howard
Promoted Bankruptcy Judges:
A reporter doing a story on the new bankruptcy judgeships asked me if I happened to know how many current Article III judges were previously Bankruptcy Judges. I can think of only two: Conrad Cyr of the 1st Circuit and the previously-mentionted Alice Batchelder of the 6th Circuit. Does anyone know of any others? Thanks in advance.
Someone on the Comment Board gave me a perfect Google search to find the info I needed. Thanks!
While looking around, I also came across this delightful story by Judge George about his encounter with Frank Sinatra at the Sands when he was a kid:
[George] was at one time a lifeguard at the Sands Hotel. The job payed for his studies at Brigham Young University. At the Sands, he met Sinatra many times. One day after delivering some pool furniture to Mr. Sinatra’s private suite, he received a call from the front desk that Sinatra wanted four chairs and a screwdriver. He thought about it and figured Sinatra wanted to build something or had a handyman fetish.
George arrived with the chairs and told Mr. Sinatra that he couldn’t find a screwdriver but would go and get one. Mr. Sinatra asked “What the hell, kid, are you going to have a party here?” George tried to explain what he was doing and what he was told and Sinatra laughed and yelled, “I ordered four beers and a screwdriver. Nobody can get anything straight around here.”
A Phone Conversation, Nearly Live-Blogged:
Caller: Hello! I was hoping you folks could help me out.
Me: Yes? [Me, thinking: Sounds like someone is looking for legal advice, probably on employment law (those are the calls I mostly get from laypeople, because of my workplace harassment law online materials). Need to find someone to refer him to.]
Caller: I was just on a flight last night from Vancouver to Los Angeles . . . .
[Me, thinking: Some supposed illegal search, racial profiling, or whatever else? Why would he have called me?]
Caller: . . . and my bags were supposed to arrive . . .
[Me, thinking: Unconstitutional search and seizure.]
Caller: . . . but they didn't, and I was hoping you could help me find them.
It turns out he didn't dial 1 before the ten-digit phone number he was supposed to call, and thus called my number in the West L.A. 206 prefix instead of an Alaska Airlines number in Seattle. (I'd gotten calls like that before, I realized.)
Sometimes a looming constitutional question is really just a wrong number.
What do Justice Brennan, Human Rights Campaign founder James Hormel, and John Bolton have in common?
They were all recess appointments. In addition to being a gay rights activist and heir to the Hormel Foods (SPAM) fortune, Hormel was appointed by President Clinton as the Ambassador to Luxembourg. Justice Brennan was appointed by President Eisenhower during a Senate recess in 1956 and was confirmed when the Senate came back into session.
Leiter's Law School Reports:
Lawprof Brian Leiter has started a new blog today: Leiter's Law School Reports
, which will feature the news and commentary related to law schools and legal academia that in the past have appeared at his existing blog The Leiter Reports
. Leiter explains:
[F]rom now on you can get your law school news without wading through philosophy, Nietzsche, politics, etc. Some of you may view this as a blessing; those who don't are, of course, welcome to continue visiting. . . .
The month of July brought the heaviest traffic we have had at the Volokh Conspiracy: over 600,000 visits
during the month, at least as measured by Sitemeter. Some of that was due to the O'Connor retirement and Roberts nomination, which like pre-election traffic will mostly drop away over time. Still, thanks to everyone for visiting.
Sunday, July 31, 2005
This Washington Post article is one of many signs I've noticed lately that the housing bubble is beginning to burst (as it previously did in Australia and England), as I predicted back in March. Inventories are growing in other metro areas, banks have run out of creative financing options (once you've allowed negative equity, no money down loans, where is there to go?), interest rates are rising, new home prices (a more consistent indicator than existing home prices) are down nationwide, insiders at big homebuilding companies like Toll Brothers and KB Homes are selling like mad...
With home builder stocks at record highs, investors with some speculative money to throw around should be buying January 2007 Puts on these stocks.
First Souter, Now Breyer?:
The Associated Press
Critics of a U.S. Supreme Court's ruling that governments may seize private property for economic development want to use the process to seize a justice's vacation home and turn it into a park.
The New Hampshire Libertarian Party is collecting signatures for a petition to ask the town to use Justice Stephen G. Breyer's 167-acre Plainfield property to create a "Constitution Park," with stone monuments to commemorate the U.S and New Hampshire constitutions, said party Vice Chairman Mike Lorrey.
"The point is: What goes around comes around," Lorrey said. "This is a way of saying, 'You're going to be held to your own standard.'"
I assume this means that Mr. Lorrey is willing to have his own property taken, as well? After all, what goes around comes around; surely Mr. Lorrey would want to be held to the same standard as he is holding Justice Breyer. Seems like a strange position for a libertarian, even just for a publicity stunt.
The New York Times book review section has a review of Harvey Kaye's "Thomas Paine and the Promise of America" by Joseph Ellis (some NY Times content may not be available to non-subscribers). After setting out Paine's influence on the American left, Ellis writes:
Oddly enough, however, over the past 30 years Paine's chief fans have appeared within the conservative wing of the Republican Party, making Paine, like Jefferson, the proverbial man for all seasons. Though weird, and surely not the legacy Kaye has in mind, the Goldwater-Reagan-Gingrich persuasion has a plausible claim on the libertarian side of the Paine legacy, which is deeply suspicious of all forms of consolidated political power and views government as ''them'' rather than ''us.'' Paul Wolfowitz would also be able to cite Paine in support of George W. Bush's Iraq policy, since Paine believed that democratic values were both universal and self-enacting. History makes strange bedfellows.
WHICH is to say that ''the promise of America'' that Paine glimpsed so lyrically at the start cannot be easily translated into our 21st-century idiom without distorting the intellectual integrity of its 18th-century origins. Paine, like Jefferson, was a product of the Enlightenment who sincerely believed there was a natural order of perfect freedom and equality that had been hijacked by medieval kings and priests. If only, as Diderot put it, the last king could be strangled with the entrails of the last priest, the natural order would be restored, naturally. . . .
What a reincarnated Paine would say about our altered political and intellectual landscape is impossible to know. Kaye hears his voice more clearly and unambiguously than I do, a clarity of conviction that I envy. My more muddled position is that bringing Paine's words and ideas into our world is like trying to plant cut flowers.
In his description Ellis grudgingly captures part of the vision of the neoconservatives to spread liberty around the world, but seems to find it, as he finds "Paine's optimistic assumptions," "naive in the extreme."
UPDATE: Irfan A. Khawaja at HNN discusses this same passage and assesses the place of Paine's ideas in the Lockean tradition.
In case you missed it in the NY Times, eye-opening article on US News Law School Rankings methodology.
Law Review Articles and the Sales Pitch:
Heidi Bond, Executive Article Editor at the Michigan Law Review
, has blogged some interesting thoughts
on more and less effective ways of pitching law review submissions. The question of how much it may boost authors' chances if they agree not to try to "shop up" is an interesting one; I wonder if current or former articles editors from other journals have the same perspective.
Still Seems Like A Lot To Me:
From Law.com's article on the AmLaw 200 (firms 101-200):
Membership in a megafirm isn't the only ticket to living high on the hog. The partners in The Am Law 200's Second Hundred — firms number 101 to 200 on our list of the nation's highest-grossing firms — are doing just fine, despite the fact that their average size is just 260 lawyers. Second Hundred gross revenues went up more than 7 percent in 2004, on average, while revenue per lawyer grew by almost 9 percent. What's more, the Second Hundred saw almost an 11 percent growth in profits per partner. Thirteen Second Hundred firms had average profits per equity partner of $1 million or more, six more than in 2003.
Despite that cheery news, the reality is that the Second Hundred is still the poor cousin of The Am Law 100 — firms 1 through 100 in our ranking — and getting poorer by comparison. The Second Hundred's average profits per equity partner in 2004 ($566,000) significantly trail that of The Am Law 100 ($959,000). It's a gap that's been growing consistently, albeit slowly, since at least 2001, when the difference was about $323,000 (it is now $393,000). More than a third of the Am Law 100 firms — 37, to be exact — had profits per partner above $1 million in 2004, compared to the Second Hundred's 13. Eight Am Law 100 firms pulled in $2 million or more in profits per equity partner, while only one Second Hundred firm (Boies, Schiller & Flexner) made that cut.
Of course, I would never trade the satisfaction and intellectual stimulation of life as a law professor for mere lucre (or something like that...).
P.S.: I'm joking--I do love being a professor and obviously wouldn't change places.