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Saturday, January 6, 2007

Big Environmental Grant:

Yesterday the Supreme Court granted cert in another significant environmental law case — actually two combined cases, National Association of Home Builders v. Defenders of Wildlife and EPA v. Defenders of Wildlife — concerning the extent to which the Endangered Species Act (ESA) requires federal agencies to avoid actions that could harm endangered species when such a requirement could conflict with an agency's other statutory obligations. As Lyle Denniston notes on SCOTUSBlog:

The endangered species case grows out of a move by the state of Arizona to take over from EPA the program of regulating permits for discharge of pollutants under the Clean Water Act. The Court granted both cases, and added to the review the question of whether the EPA decision to transfer this permitting authority was wrongly based upon inconsistent views of the Endangered Species Act and, if so, whether the case should have been sent back to EPA for further review.

Here is the petition, opp, and reply brief.

MORE: The divided opinion of the U.S. Court of Appeals for the Ninth Circuit is here. The dissenting opinions from the denial of en banc review by Judges Kozinski and Kleinfeld, along with Judge Berzon's concurrence, are available here. The Environmental Law Institute's "Endangered Environmental Laws" program profiles the case here.

[NOTE: Links should be fixed now.]

UPDATE: Holly Doremus explains why this case "is potentially the most important ESA case the Court has heard since TVA v. Hill."

Related Posts (on one page):

  1. Big Environmental Grant:
  2. OT 2006: An Environmental Term?
9 Comments
U.S. News Measurements of Post-Grad Outcomes:

My colleague (and one-time VC guest bloger), Andrew Morriss has co-authored an interesting new paper with William Henderson on U.S. News' use of post-graduation criteria in its annual law school rankings. This aspect of the rankings, which include employment rates, average salaries, and bar passage, account for 20 percent of a school's overall rank, and have been the focus of substantial law school efforts to increase their ranks. The abstract of the paper, Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law School Rankings, is below:

The U.S. News & World Report annual rankings play a key role in ordering the market for legal education. This Article explores the impact and evolution of placement and post-graduation data, which is an important input variable that comprises 20 percent of the total rankings methodology. In general, we observe clear evidence that law schools are seeking to maximize each placement and post-graduation input variable. During the 1997 to 2006 time period, law schools in all four tiers posted large average gains in employment rates upon graduation and nine months, which appear to result from a combination of competition and gaming strategies. Law schools in tiers 2, 3, and 4 have also increased 1L academic attrition, which may be an attempt to increase the U.S. News bar passage score.

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20 Comments
More on Indiana Voter ID Decision:

Rick Hasen discusses the 7th Circuit's decision upholding Indiana's photo ID law here. See also here, and the AP story here. Hoawrd Bashman rounds up more news covereage here.

Related Posts (on one page):

  1. More on Indiana Voter ID Decision:
  2. Indiana Voting Law Upheld:
17 Comments
Academic Freedom Panel: Inside Higher Ed has a story about an excellent panel on academic freedom at the AALS annual law prof conference. The panel was moderated by Robert Post, and featured Stanley Fish, Elena Kagan, Geoffrey Stone, and William Van Alstyne.
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Half the Story:

Don Surber notes, quoting a correspondent:

Today’s approval numbers via Rasmussen are:

45% approval for Bush
43% approval for Pelosi

Well, that's half the numbers. Filling in the other half (which, to Surber's credit, is linked from his post), we see that Bush is at 45% job approval and 54% disapproval, while Pelosi is at 43% favorable and 39% unfavorable. So Pelosi seems ahead of Bush (+4 vs. -9) rather than behind. And the talk in the Surber post about the media's "false ... impressions," media "conventional wisdom [being] flushed down the toilet," and media "lies," seems like something of an overstatement.

The broader lesson: When you see survey results, don't look just to one number. Keep in mind that the "approve" and "disapprove" (or "yes" and "no" or whatever) likely don't add up to 100%, and that the "no answer" fraction may vary from subject to subject, as it does here. (Pelosi, understandably, isn't as well-known as Bush.) Treat each survey as yielding two numbers, and when you compare survey results, compare the pairs, at least unless the "no answer" fractions are pretty much the same in each pair.

Better yet, look at more than two numbers, if the survey gives them, for instance if it separately reports the "strongly"/"very" and "somewhat" sentiments on each side. (As it happens, in both of these surveys, those with strong feelings about the subject -- whether Bush or Pelosi -- are mostly disapproving, while those with milder feelings are mostly approving.) But look at least at the two numbers from each survey, rather than just at one.

30 Comments

Friday, January 5, 2007

Trust Test:

Andrew Sullivan, InstaPundit, and Ann Althouse link to this quiz that purports to measure where you stand on the liberal-conservative spectrum. I tend to agree with InstaPundit: "it was a pretty dumb test."

"Which do you trust more: The Pentagon or The U.S. Postal Service?," the test asks. Well, trust to do what? The USPS is generally pretty good at delivering the mail. Its success rate at its tasks (delivering each letter entrusted to it) is almost certainly higher than the Pentagon's success rate at its tasks (accomplishing every military objective that it's asked to accomplish). On the other hand, the degree of difficulty is a bit higher for the Pentagon's tasks, no?

Likewise, which do I trust more: trial lawyers or doctors? What does that mean? Which is more honest? I expect both are on balance roughly equally honest, just like most professional groups are on balance roughly equally honest. Which is better at accomplishing the tasks that are entrusted to it? Hard to tell. Which better serves the country? Also hard to tell, given how large a group trial lawyers are (if you interpret trial lawyers literally, they'd include defense-side lawyers as well as plaintiff-side lawyers, plus of course criminal lawyers on both sides); but that's pretty clearly not a matter of "trust."

Or how about Q 10: "Which would curb violent crime most? [A] Stricter controls on the sale of guns [B] Mandatory sentences for those who use guns in the commission of a crime [C] Both." What about "neither," if you think that mandatory sentences are a bad idea (because you believe in leaving judges with considerable discretion) but you also think gun control is a bad idea — or for that matter if you think that both A and B are just unlikely to have any real effect?

Similarly, consider Q 11: "In the long run, do you think we can reduce crime more by building more prisons or providing more financial assistance to rebuilding our inner cities? [A] Build prisons [B] Rebuild cities [C] Both." What answer should be given by a libertarian who thinks that neither "building more prisons" nor "providing more financial assitance to rebuilding our inner cities" will reduce crime?

Or consider Q 17: "The religious right is a threat to our political system [Agree / Disagree]" — what about people who strongly disagree with the religious right but see it as just a wrongheaded part of our political system, and not a threat to it?

I realize that all these tests, especially ones that try to collapse your views onto one dimension, are flawed; but this one strikes me as especially flawed.

50 Comments
The Joy of Clerkship, Con't

A press release from Grove Press describes the forthcoming novel by Saira Rao (entitled "Chambermaid") this way:

The devil holds a gavel in this wickedly entertaining debut novel about a young attorney’s eventful year clerking for a federal judge. Sheila Raj is a recent graduate of a top-ten law school with dreams of working for the ACLU, but law school did not prepare her for the power-hungry sociopath, Judge Helga Friedman, who greets her on her first day. While her beleaguered colleagues begin quitting their jobs, Sheila is assigned to a high-profile death penalty case and suddenly realizes that she has to survive the year as Friedman’s chambermaid — not just her sanity, but actual lives hang in the balance. With Chambermaid, debut novelist Saira Rao breaks the code of silence surrounding the clerkship and boldly takes us into the mysterious world of the third branch of US government, where the leaders are not elected and can never be fired. With its biting wit and laugh-out-loud humor, this novel will change everything you think you know about how great lawyers, and great judges, are made.
I haven't read the book (it's not going to be released until Spring), so I have no idea whether and how Ms. Rao "breaks the code of silence surrounding the clerkship" and I'm a tad skeptical that this book will "change everything I think I know about how great lawyers and great judges are made."

But what's particularly interesting about this is that Ms. Rao was herself a law clerk for Judge Dolores Sloviter of the Third Circuit Court of Appeals (according to the WSJ blog). Rumors have been circulating around Philadelphia for some time that Judge Sloviter has become, shall we say, a very difficult person to get along with (and to work for) in chambers. So my guess — and it is, to be sure, only a guess at this point &mdash is that this is a pretty thinly-disguised roman a clef, with Ms. Rao herself as the idealistic "Sheila Raj" and Judge Sloviter the "power-hungry sociopath, Judge Helga Friedman."

I suspect that this will cause quite a rumble in the rather insular and staid world of Philadelphia's legal establishment.

71 Comments

Thursday, January 4, 2007

The Democratic Trade Agenda:

Senator Max Baucus (D-MT), the incoming Finance Committee Chair, has an op-ed in today's W$J outlining his vision of "A Democratic Trade Agenda." Is it a good one? That's hard to tell. Here's a taste:

At a time when our country's competitive strength depends increasingly on an aggressive trade policy, Americans are far less willing to embrace one. Many equate trade and globalization with ballooning deficits, stagnating wages and layoffs. Meanwhile, even as China and India have continued their economic reawakening, America has lacked the leadership to tackle the associated challenges through trade. U.S. policy has lurched frantically from one trade agreement to the next, eking out just enough votes to push each one through Congress.

Some think that the new Democratic congressional majority will be bad for trade policy. While it is true that some candidates criticized trade in their campaigns, I believe that the new Congress will have both the desire and opportunity to renew U.S. trade policy, with a unifying purpose that Americans can understand and support. Through trade, we must bolster the nation's innovative economy in an increasingly global marketplace. At the same time, we must tackle with equal vigor the negative domestic consequences of globalization, from trade deficits to job losses.

On the one hand, it's a good sign that Senator Baucus wants to renew fast track authority and recognizes the importance of international trade ot the American economy. On the other, the op-ed can hardly be called a ringing endorsement of free trade, particularly insofar as it endorses greater trade enforcement, increasing export subsidies, and greater dilution of free trade principles with labor and environmental concerns.

Dan Drezner's take (and hbe knows more about trade policy than I do) is that the article is ambiguous because Baucus is simultaneously "laying down a marker against protectionist Democrats" while "trying to get the Bush administration to sign off on Democratic policy proposals with a veneer of soothing rhetoric," and yet is not sure how to balance these two aims. Were it not for the Bush Administration's own spotty record on trade, I'd be quite discouraged.

95 Comments
Indiana Voting Law Upheld:

Today, in Crawford v. Marion County Voting Board, a divided panel of the U.S. Court of Appeals for the Seventh Circuit rejected a constitutional challenge to Indiana's new photo ID requirement for voting. Writing for himself and Judge Diane Sykes, Judge Richard Posner held that the photo ID requirment did not impose an undue burden on the right to vote, even though the law would deter some individuals from voting, and even assuming that the law would have disproportionate effects on voters of one party.

In ananlyzing the statute, Posner rejected strict scrutiny, observing:

The Indiana law is not like a poll tax, where on one side is the right to vote and on the other side the state’s interest in defraying the cost of elections or in limiting the franchise to people who really care about voting or in excluding poor people or in discouraging people who are black. The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes — dilution being recognized to be an impairment of the right to vote.
According to the majority, the law represents a reasonable regulation designed to balance the right to vote with the state's interest in reducing the likelihood of voter fraud.

Judge Evans dissented:

Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic. We should subject this law to strict scrutiny—or at least, in the wake of Burdick v. Takushi, . . . something akin to “strict scrutiny light” — and strike it down as an undue burden on the fundamental right to vote.

UPDATE: I neglected to add that both opinions are short and worth reading in full. This was a high-powered panel addressing an important issue.

I've also fixed the link above, or try this one.

Related Posts (on one page):

  1. More on Indiana Voter ID Decision:
  2. Indiana Voting Law Upheld:
178 Comments
Prop 2 & U.S. News:

How will the passage of Proposition 2 in Michigan impact the University of Michigan's U.S. News ranking? Some interesting speculation from Michael Dimino and Alfred Brophy.

More about language:

It's a myth that Eskimos have a huge number of words for snow (i.e., many more than we have). However, Eskimologists (not the same as eschatologists) confirm that, at least among the West Greenland Inuit, there's a single word for "They were wandering about gathering up lots of stuff that smelled like dead fish."

Related Posts (on one page):

  1. More about language:
  2. Zipf's law:
41 Comments
Zipf's law:

The linguists at Language Log have been poking fun at a BBC story suggesting that British teens have poor vocabularies and that Britain is becoming a nation of "Vicky Pollards." The main posts on the subject are here and here; an extra post is here, and for a (very partial) retraction of their original mockery (which was substantially fair, but here they go into greater theoretical detail) here.

By the way, who is Vicky Pollard? The Language Loggers suggest looking here, here, here, and here. I've only looked at the fourth of those links, but it's pretty funny.

In any event, the basic moral is that the BBC doesn't know what it's talking about. For one thing:

The Vicky character — a broad satire of the accent, dress and manners of British lumpen-teen females — is portrayed as hyper-verbal. One of the basic Vicky bits is her jabbering rapidly on automatic pilot, saying far more than she should. Yet the BBC sees her as someone who is unable to communicate due to an inadequate word stock, not someone who over-communicates with socially inappropriate content, accent, word choice and sentence structure. This is another piece of evidence that journalists these days are incapable of elementary observation and common-sense description, at least when it comes to speech and language.

For another thing, the story generated the assertion that "the top 20 words used [by British teens] . . . account for around a third of all words." Now, you're supposed to read that and imagine "um," "like," "y'know" . . . but it turns out that everyone does the same thing. Having the top 20 words account for a third of all your words is a normal distribution. (That's "normal" in the "ordinary" sense, not the "Gaussian" sense.) Take a look at Zipf's Law, and then read this lovely article about the Oxford English Corpus, where you can find the 100 commonest English "words" (where "words" basically means "lemmas," if you find that helpful).

Especially funnily, the Language Log folks analyzed a text by the professor responsible for the statistic, and found that he, too, followed the same 20/one-third law! Not that the professor is really to blame; of course, his research was badly mangled by the media.

UPDATE: A commenter quibbles with my use of the word "commonest." In the comments, I quote the Oxford English Corpus guys using the word, and also uses of the word by Byron and Jonathan Swift.

Related Posts (on one page):

  1. More about language:
  2. Zipf's law:
19 Comments
EPA Library Closures Update:

Last fall I posted on the Environmental Protection Agency's plans to shutter its regional libraries. In the intervening months, it appears the EPA has moved forward with its plans, despite growing criticism and the concerns of the incoming Congressional leadership. Among those who have challenged the plans are library associations, EPA professional staff, and environmentalist groups. A group of environmental law professors (including yours truly) also sent a letter to the incoming Congressional leadership (including relevatn committee chairs) encouraging them to challenge the EPA's plans. The letter reads in part:

As you are undoubtedly aware, on September 20th, EPA published a Federal Register notice announcing that, as of October 1st, the main library at the Agency’s Washington, D.C. headquarters would be shuttered to EPA’s own staff, as well as to the general public, ostensibly for budgetary reasons. EPA libraries are already closed down in a number of the Agency’s regional offices, as well as in its headquarters, and the hours of a number of its other regional libraries have been significantly curtailed. The vital technical documents that those libraries contained are now being dispersed. In some cases, reportedly, they are actually being destroyed.

When it made these steps public, the Administration stated that EPA’s staff and the public may now access the information they require through EPA websites, rather than in hard copy. That contention is substantially false. Although the federal government has made significant strides in providing internet access to its documents, the vast majority of the documents in the closed EPA libraries are not digitized, and no funds have been allocated for that process to be completed. The likelihood that critical documents will now be damaged or lost is therefore very high. . . .

Ironically, the monetary savings that will result from these library shutdowns seem paltry, if not entirely illusory. . . . As a percentage of EPA’s overall budget, any fiscal savings from the closures will be minuscule.

Moreover, EPA’s libraries were also a valuable repository of environmental information for the general public with respect to such topics as historical trends in the contamination of local areas and techniques for the mitigation and control of pollution. . . .

Over the holidays, Rebecca Bratspies posted an update on Biolaw:

The Bush Administration has apparently began to feel the pressure. On December 11, 2006, EPA Deputy Administrator Marcus Peacock spoke for the first time about the library closures and defended the closures as a budgetary matter and again asserted that documents would be available online. However, virtually none of the EPA records that exist prior to 1990 have been digitized and there are no funds allocated for that process in EPA's 2007 budget. Peacock did indicate that EPA had "rescheduled the recycling" (read destruction) of documents in light of the congressional request. Much of the national press picked up the story at this point.

Nonetheless, as of now, E.P.A has closed its libraries in Dallas, Chicago and Kansas City. The Boston, New York, San Francisco and Seattle libraries are operating with reduced hours and public access. The central library in Washington, D.C., while nominally still open to E.P.A staff, has been closed to the public.

Apparently in an attempt to make the changes irreversable, an unknown number of documents have already been destroyed and the collections of the closed libraries dispersed. In one of the more bizarre turns, all the library furniture and fixtures from the Chicago library, said to be worth $80,000 were sold at auction for $350. The unseemly haste with which these critical libraries have been dismantled is startling.

Whatever one's view of current environmental regulations, or the EPA, closing libraries before all relevant materials are available on-line is a bad move. If motivated by budgetary concerns, it is penny-wise, but pound-foolish.

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NYT Discovers "Middle" Ground on Climate:

On New Year's Day, the New York Times published an interesting (if long overdue) article pointing out that there is much more to the climate change policy discussions than a debate between "believers" and "heretics." Now, article author Andrew Revkin claims, there is a "third stance" emerging that "challenges both poles of the debate."

They agree that accumulating carbon dioxide and other heat-trapping smokestack and tailpipe gases probably pose a momentous environmental challenge, but say the appropriate response is more akin to buying fire insurance and installing sprinklers and new wiring in an old, irreplaceable house (the home planet) than to fighting a fire already raging.

“Climate change presents a very real risk,” said Carl Wunsch, a climate and oceans expert at the Massachusetts Institute of Technology. “It seems worth a very large premium to insure ourselves against the most catastrophic scenarios. Denying the risk seems utterly stupid. Claiming we can calculate the probabilities with any degree of skill seems equally stupid." . . .

“Global warming is real, it’s serious, but it’s just one of many global challenges that we’re facing,” said John M. Wallace, a climatologist at the University of Washington. “I portray it as part of a broader problem of environmental stewardship — preserving a livable planet with abundant resources for future generations.”

The article also notes that some who take this approach -- those who Roger Pielke Jr. calls "nonskeptical heretics" -- face pressure to tailor their public comments for political reasons: "Some experts, though, argue that moderation in a message is likely to be misread as satisfaction with the pace of change.

The article quotes Dr. Mike Hulme, director of the Tyndall Center for Climate Change Research in Britain, "raising the concern that shrill voices crying doom could paralyze instead of inspire."

“I have found myself increasingly chastised by climate change campaigners when my public statements and lectures on climate change have not satisfied their thirst for environmental drama,” he wrote. “I believe climate change is real, must be faced and action taken. But the discourse of catastrophe is in danger of tipping society onto a negative, depressive and reactionary trajectory.”
Above I say the article is "long overdue" because the real climate debate has, for quite some time, not been over the science but rather over the proper policy response to an uncertain yet significant environmental risk. Indeed, as I have said before, most of those labeled "skeptics" accept that human activities are altering the climate and some (such as Bjorn Lomborg) explicitly accept the conclusions of the IPCC. They are labeled skeptics less for their view of the science than their view of the proper response to the risks of climate change. Lomborg, for instance, accepts the IPCC's scientific assessment, but argues that the resources required to forestall significant cliamte change would be put to better use if used to alleviate other global problems, particularly those related to poverty.

The evidence that human beings are, and will continue to, have an impact on the climate has been strong for quite some time. There is significant uncertainty about what precisely this means (e.g. the effect it will actually have on weather, sea-level, etc.), but little doubt that it will produce signficant environmental changes, some of which will impose significant costs and some of which may provide benefits. There is also little doubt that the distribution of climate change's costs and benefits will be anything but uniform. So, for instance, parts of Canada might benefit from longer growing seasons and milder winter, while low-lying tropical regions are flooded and suffer greater disease outbreaks.

At the same time, we have no clue how to reduce anthropogenic emissions of greenhouse gases sufficiently so as to stabilize atmospheric concentrations anywhere near present levels. Existing technologies, including projected advances in renewables, nuclear, and other low-to-zero-emission energy sources, can only do so much. Ditto for conservation. The realistic costs of climate change policies approach the magnitude as those of climate change itself, and include significant uncertainties of their own.

The real debate is thus over what sort of insurance policy -- or, more properly, mix of policies -- represents the proper response to the real risk of climate change, and how should the costs of such policies be apportioned. This is a serious an important debate. Unfortunately, it does not get more attention because a fiery believer/skeptic debate over the science creates a simpler "he said/she said" narrative for popular consumption.

For additional reactions to the Revkin piece, see this post at RealClimate, this post at Prometheus, and this post at Gristmill.

Related Posts (on one page):

  1. Al Gore Won't Debate:
  2. NYT Discovers "Middle" Ground on Climate:
104 Comments

Wednesday, January 3, 2007

Please Don't Make Blogs Into Faculty Meetings:

The joke about faculty meetings is that the meeting lasts until everything that needs to be said is said -- by everyone who feels the need to say it. I haven't generally found this at my school, but it does fit into the general reputation of academics: Academics like to hear themselves talk, and if someone else has made the point first, why, there's no reason not to throw your augustness behind it, preferably at great length.

Curiously, the standards for academic publication are supposedly, and generally actually, the opposite: If someone has written something already, you don't get much credit for writing the same thing. But when it comes to faculty governance, repetition is often the order of the day.

I thought of this when I saw the latest "You horrible people -- why aren't you talking about what I think is the most important current story?" comment, this one to Orin's very interesting post about a Fourth Amendment case that the Supreme Court may review:

OH, I just woke up, and found out that FIVE days ago the NC State Bar file a 17 page complaint against a sitting DA, the first time this has happen in the nation. I must have missed you comments on the complaint while I was asleep, would you please send me an email letting me know about your discussions. Thanks. I know your not so liberal that you would COMPLETELY ignore this, so send me your posts.

Look, Orin is one of the leading Fourth Amendment scholars in the nation. He's not one of the leading experts on the Duke rape case. He does do criminal law, but not that corner of criminal law. What's more, the interesting things in the Duke case aren't the abstract legal issues, but the facts, which are rich and complex; only a few people have really kept on top of all of them, and to my knowledge Orin isn't one.

But fortunately there are others who have kept on top of the facts. For instance, K.C. Johnson is the leading person that I know about on this -- he's a history professor, and from all I hear a very thoughtful fellow; and though he's not a criminal law scholar, I understand that he's followed this case very closely. Want to hear really informed opinion in this case? Read his blog. Want to hear really informed opinion about the Fourth Amendment, a subject that Orin has followed very closely? Read Orin's posts on this blog.

Why, though, would you insist on Orin's blogging about something on which he's not an expert, or for that matter on K.C. Johnson's blogging about the latest developments in Fourth Amendment law, no matter how important? Look, if some of us want to take the time to develop an expertise on the Duke rape case, we'll post about it. And occasionally some of us may post non-expert comments based on some outside coverage that we found interesting; you'll generally notice that the posts are non-expert posts, and should be taken either as potentially useful pointers to others' work or as light entertainment, as the case may be. But why not appreciate the fact that we tend to post about subjects we know well? Why try to goad us into commenting about subjects that we don't know well?

Yes, in principle we could try to learn about other subjects that are outside our core areas of expertise. (After all, K.C. Johnson did.) But there are lots of important issues out there -- drugs, immigration, education, criminal justice, Iraq, North Korea, and so on. We have limited time to broaden our areas of knowledge. And if we did feel some obligation to learn about the Duke rape case, that wouldn't get us away from the goaders -- they'd just demand that we explain why we aren't blogging about nuclear proliferation.

I realize that newspapers are expected to offer relatively thorough coverage of a wide range of important topics. But that's because historically many people have read one newspaper, and expected to get most of their knowledge of current events from that newspaper, or perhaps that newspaper and their favorite radio or television news program.

I see no reason for blogs to operate that way. Most blog readers, as best I can tell, tend to read several blogs, and can therefore get the benefit of each blog's expertise. There's no reason for blogs to be full of compulsory "me too"'s, or "here's what I think about this hot news story about which I know little." It's not good for us bloggers, and it's not good for you readers.

40 Comments
CFR in Brendlin v. California?: Perhaps the most cert-worthy issue in Fourth Amendment law right now is whether the passenger of an automobile is "seized" when a police officer orders the car to pull over. In a remarkable opinion issued this past June, People v. Brendlin, a closely-divided Supreme Court of California held that the passenger is not seized by a stop of the car. The Court ruled that stopping the car seized the driver, as it acts on him, but not the passenger, who just so happens to be in the car. Thus, in the Brendlin case, the fruits of an admittedly unlawful stop of the car Brendlin was in were used against him on the theory that he was not himself "seized" by the unlawful stop.

  Brendlin is one of the nuttiest Fourth Amendment decisions I have read in a long time. Its rule makes no sense at all. A seizure occurs when a person or thing is stopped, by whatever intentional means, and it simply doesn't matter whether the thing is a driver, a passenger, or a box in the trunk. Seizing an item always seizes its contents; you can't pick some contents inside that were seized and others that weren't. On a practical level, police officers can't just pull over cars illegally and then start trying to get evidence on passengers by asking them questions or trying to get their consent. In such cases, the passengers are just as seized (and illegally so) as the drivers.

  Fortunately, the Brendlin case is deliciously certworthy. The decision created a huge and ugly split, as it's contrary to what federal circuits (including the Ninth) and many state Supreme Courts have held. A few state courts adopted the Brendlin approach a long time ago, but the fact that they were courts from low-population states (like Idaho and Montana) made the split less pressing before. When the entire California state criminal justice systems adopts a different rule involving cars, however, a split really matters. It's a particularly ugly split because the 9th Circuit has a different rule, and most criminal cases involving auto stops are drug cases with concurrent federal/state jurisdiction. This means that if federal officials violate the Fourth Amendment as construed in federal court, they can just pass off the case to the states.

  A cert petition was filed in the case on November 28th. Remarkably, the state of California waived its opportunity to file a brief in opposition. According to the docket page, the case has been distributed for the January 12 conference. I would expect the Court to "call for a response," essentially ordering California to respond so the Court can take a better-informed look before it decides whether to grant the petition. Stay tuned. (For the record, I have discussed this case with Brendlin's counsel, and have offered my assistance in the case; I haven't actually worked on the case, however.)
48 Comments
We're Not Ready; Are You?

A new emergency preparedness study released by the Department of Homeland Security reports that Cleveland is among the worst-prepared metropolitan areas in the nation, at least with regard to emergency communication systems. The study, released today, evaluated the interoperable communications capabilities in 75 metropolitan areas.

What's Cleveland's problem? Apparently Cuyahoga County lacks a countywide communications system, and there is insufficient compatibility among the communications systems utilized by first responders and other government agencies in the area. According to the Cleveland Plain Dealer story,

Police and firefighters in the county's 59 communities talk on about 50 different radio systems. Some cities have separate radio systems for their police and fire departments.

The systems can be linked only by following complicated steps. As an alternative, safety forces pass messages through dispatchers when emergencies cross borders, risking delays and confusion.

Lack of communications interoperability is not an Ohio thing, however, as Columbus scored quite well.
Columbus was among a small group that finished with top scores in the Homeland Security Department's study of 75 metropolitan areas. Others were Washington, D.C.; San Diego; Minneapolis-St. Paul; Sioux Falls, S.D.; and Laramie County, Wyo.

Joining Cleveland at the bottom were Chicago; Baton Rouge, La.; Mandan, N.D.; and American Samoa.

15 Comments
Hey! It's Jefferson's Koran, For Heaven's Sake . . .

The Washington Post reports that newly-elected Representative Keith Ellison (D-MN), the first Muslim ever elected to Congress, will be sworn in by Speaker Nancy Pelosi with his right hand on a copy of the Koran. And not just any Koran -- the copy owned by Thomas Jefferson himself (which Mark Dimunation, who is originally from Ellison's Minnesota district and is now chief of the rare book and special collections division at the Library of Congress, dug up for Rep. Ellison). And in another nice touch, he is being criticized by Rep. Virgil Goode (R-VA), whose district includes Monticello; according to the Post, Goode told Fox News that "I believe that the overwhelming majority of voters in my district would prefer the use of the Bible," and went on to "warn about what he regards as the dangers of Muslims immigrating to the United States and Muslims gaining elective office." Jefferson, wherever he is at the moment, appreciates the irony, I'm pretty certain of that.

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Former JCS Head Now Opposes DADT:

In an important op-ed in yesterday's New York Times, retired army general and chairman of the Joint Chiefs of Staff from 1993 to 1997, John Shalikashvili, concludes that the anti-gay "Don't Ask, Don't Tell" policy is unnecessary and should be phased out. Shalikashvili's stand is especially significant because he was among the most influential opponents of President Clinton's plan to lift the ban on gays in the military.

The basic reason Shalikashvili gives for his conversion is that the experience of the last 14 years has shown that allowing gays to serve openly would not undermine morale, harm recruitment, or hurt unit cohesion — long the main claims of those who have opposed allowing gay Americans to serve. He cites as evidence for his new view: (1) the experience of more than two dozen other countries (including the most effective militaries, Britain and Israel) that allow gays to serve openly, (2) recent polls showing that American military personnel serving in Iraq overwhelming say they would have no problem serving with gays, (3) the serious need of the armed forces for more personnel, and (4) his own interviews with gay Americans who have served openly, honorably, and bravely, often in combat, in Iraq.

Here's the key passage in the op-ed:

When I was chairman of the Joint Chiefs of Staff, I supported the current policy because I believed that implementing a change in the rules at that time would have been too burdensome for our troops and commanders. I still believe that to have been true. The concern among many in the military was that given the longstanding view that homosexuality was incompatible with service, letting people who were openly gay serve would lower morale, harm recruitment and undermine unit cohesion.

In the early 1990s, large numbers of military personnel were opposed to letting openly gay men and lesbians serve. President Bill Clinton, who promised to lift the ban during his campaign, was overwhelmed by the strength of the opposition, which threatened to overturn any executive action he might take. The compromise that came to be known as “don’t ask, don’t tell” was thus a useful speed bump that allowed temperatures to cool for a period of time while the culture continued to evolve.

The question before us now is whether enough time has gone by to give this policy serious reconsideration. Much evidence suggests that it has.

Last year I held a number of meetings with gay soldiers and marines, including some with combat experience in Iraq, and an openly gay senior sailor who was serving effectively as a member of a nuclear submarine crew. These conversations showed me just how much the military has changed, and that gays and lesbians can be accepted by their peers.

This perception is supported by a new Zogby poll of more than 500 service members returning from Afghanistan and Iraq, three quarters of whom said they were comfortable interacting with gay people. And 24 foreign nations, including Israel, Britain and other allies in the fight against terrorism, let gays serve openly, with none reporting morale or recruitment problems.

I now believe that if gay men and lesbians served openly in the United States military, they would not undermine the efficacy of the armed forces. Our military has been stretched thin by our deployments in the Middle East, and we must welcome the service of any American who is willing and able to do the job.

Shalikashvili wants to proceed slowly with the change, not take it up as the first issue in the new Congress:

By taking a measured, prudent approach to change, political and military leaders can focus on solving the nation’s most pressing problems while remaining genuinely open to the eventual and inevitable lifting of the ban. When that day comes, gay men and lesbians will no longer have to conceal who they are, and the military will no longer need to sacrifice those whose service it cannot afford to lose.

While I think the change could have been made effectively in 1993 or even before, and while DADT was in no sense a "compromise" that allowed gays to serve without fear of discovery and reprisal, I agree with Shalikashvili that the time has come for Congress to look seriously at lifting the ban. Other former military leaders and supporters of DADT have urged likewise. If Congress votes to lift the ban, the burden would then be on our compassionate conservative president to decide whether he will allow gay Americans to serve their country with honesty and integrity or will continue to force them to lie and hide in fear, wasting our money and their talent during wartime.

Related Posts (on one page):

  1. No news is good news:
  2. Bad Week for DADT:
  3. Former JCS Head Now Opposes DADT:
124 Comments
Errors in the Citizenship Test, and in Criticism of the Test?

Lawprof Steven Lubet argues that there are some possible errors in Salon; the test itself is here.

The article overstates matters somewhat, it seems to me; for instance, Prof. Lubet writes:

Everyone has the right to bear arms. (This is basically wrong, and probably ideologically motivated; the Second Amendment makes it clear that the right to bear arms is connected to a "well regulated militia," and the Supreme Court has held that this right does not belong to individuals — and in any event, it is an "alienable" right, as in the case of convicted felons.)

Actually, the Supreme Court has never held that the right to bear arms doesn't belong to individuals (see here for a list of all Supreme Court cases mentioning the Second Amendment [UPDATE: Prof. Lubet tells me that he'll try to correct this in the Salon piece]); but more broadly, the question (#78) just asks people to "Name two rights of everyone living in the U.S.," and lists among the acceptable answers "Freedom of expression," "Freedom of speech," "Freedom of assembly," "Freedom to petition the government," "Freedom of worship," and "The right to bear arms." It would be basically wrong and ideologically motivated to reject the answer "The right to bear arms," given that this is an answer endorsed by a federal court of appeals, several state Supreme Courts, Congress, the Justice Department, and many serious scholars.

Similarly, it seems to me it would be rather too picky to mark a layperson down because he read "everyone" as meaning nonfelon adults. After all, even other rights aren't entirely open to everyone; for instance, prison inmates have vastly reduced free speech rights, and next to no freedom of assembly rights or Fourth Amendment rights.

It's possible to argue that, since the preceding two questions refer expressly to the rights of citizens, and this one speaks of "everyone," people should recognize that this means "everyone, including noncitizens." But the Court hasn't even made it clear that the Second Amendment is limited to citizens. (I think that it, unlike some state constitutional right to bear arms provisions, may well be limited to citizens, but this is far from open and shut.) And an exam-taker won't even see the rights-of-citizens questions next to the rights-of-everyone question, since, as Prof. Lubet says, "The actual test for any applicant includes only 10 questions, selected at random, of which six have to be answered correctly."

Maybe an exam for lawyers or law students might demand this level of care, and knowledge of which constitutional questions are open and which are more settled. But I'd say that the more ideologically neutral thing is to accept a range of acceptable opinion about the Second Amendment, and not to be hyper-picky in this context, given that I doubt that we'd endorse hyper-pickiness in other contexts.

One could argue that the flaw isn't in the government's willingness to accept the right to bear arms as an answer to the question, but rather in its listing the right to bear arms as one of the selected set of accepted answers. After all, the list of answers to that question can't be comprehensive: The right to jury trial, the right to freedom from unreasonable searches and seizures, and several other rights have to be acceptable answers, too. Perhaps the sample answers should have focused on the rights that are most clearly recognized, or had some notation noting that there's controversy about the right to bear arms.

But that's a different and milder criticism than the article makes. Moreover, it's not unreasonable, it seems to me, that the government may want to promote even a controversial view that has been repeatedly (including recently) endorsed by Congress, and that is the view of the current Administration. It may not promote this view by grading down those who disagree with it — since the contrary view is also credible, and people who take it aren't legally wrong — but as I noted, the test doesn't seem to do it.

The same can be said, I think, of some of Prof. Lubet's other criticisms (though some are more sound). For instance, he writes "A member of Congress represents all citizens in that representative's district (wrong; he or she represents all people in the district, including noncitizens)." Again, the question (#26) is "Who does a U.S. Representative represent?," and the sample answer given is "All citizens in that Representative’s district (each state is divided into districts)." I wouldn't mark down someone who said "all citizens"; while a Representative is indeed generally seen as representing all his constituents, it seems to me that a test-taker — especially a layperson — can see representation as referring to those people to whom the popularly elected representative is actually accountable, and not just those whom he should in theory look out for.

Perhaps the sample answer should have said "all persons," but it doesn't follow that the test itself is wrong, unless the administrators mark down those who say "all persons" (which I highly doubt that they do). Again, if there is a quarrel to be had here, it's with the sample answer list, not with the test itself. And unless the sample answers are the only ones permissible — which would be clearly bad, but which I doubt is the case — I don't see evidence that the administration of the new test will "penaliz[e] applicants who actually understand the Constitution."

55 Comments
Diglot:

Amazon suggested, based on my purchase and ratings history, that I might enjoy a new edition of The Apostolic Fathers. Sadly, the "look inside" feature doesn't allow me to see any actual text. But, interestingly, one of the editorial reviews says: "This updated edition of Holmess 1992 Greek-English diglot edition of the Apostolic Fathers is arguably the best collection of these writings available."

We're not just bilingual here, we're diglottic! (Similarly, as we see in McClintock's Cyclopedia of Biblical, Theological, and Ecclesiastical Literature, "The conquests of Alexander and of Rome had made men diglottic to an extent that has no parallel in history.")

I favor diglottism, unlike televisions, automobiles, and homosexuality, which I oppose. Anyone care to guess why? (Hint: Look up page 91 of Tom Stoppard's The Invention of Love on Amazon.)

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States Whose Appellate Courts Take an Individual Rights View of the Second Amendment:

I had to come up with a list of them, and here it is: State v. Williams, 2006 WL 3438188, ¶ 20 (Wash. Nov. 30, 2006) (endorsing the individual rights view); Brewer v. Commonwealth, 2006 WL 3386645, *3 & n.5 (Ky. Nov. 22, 2006) (same); Rohrbaugh v. State, 607 S.E.2d 404, 412 (W. Va. 2004); Stillwell v. Stillwell, 2001 WL 862620, *4 (Tenn. Ct. App. 2001); State v. Anderson, 2000 WL 122218, *7 n.3 (Tenn. Crim. App. 2000); State v. Nickerson, 247 P.2d 188, 192 (Mont. 1952) (same); State v. Blanchard, 776 So. 2d 1165, 1168 (La. 2001) (treating the Second Amendment as on par with the Louisiana Constitution’s right to bear arms, which is clearly an individual right); Hilberg v. F.W. Wollworth Co., 761 P.2d 236, 240 (Colo. Ct. App. 1988) (likewise as to the Colorado Constitution), overruled as to another issue, Casebolt v. Cowan, 829 P.2d 352, 360 (1992).

The substantial majority (by a lopsided vote, 7 or so to 1) view among federal circuits remains that the Second Amendment only secures a collective right; some state courts (for instance, the New Jersey Supreme Court) take the same view. My point here is simply that there's a pretty substantial split among the courts, with several courts accepting a collective rights view and several others (plus Congress and the Justice Department, notwithstanding this dissent from the FAA, which I assume doesn't represent a considered reversal of the Administration's view) taking the individual rights view.

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Judge Levi To Become Dean at Duke Law School: One of the very best district court judges in the country, Judge David F. Levi of the Eastern District of California, has decided to leave the bench to accept the position of Dean at Duke University Law School. The Duke press release is here. I'm with Howard that this is "wonderful news for Duke Law School, but a sad loss of a very talented judge for the federal judiciary."

  Peter Lattman has a lot more over at the WSJ Law Blog. Lattman's very interesting post includes a reaction from Chief Justice Roberts: "The federal judiciary is sorry to lose one of its finest judges, but our loss is certainly Duke Law School’s gain. I have personally benefited from his counsel on several occassions, and look forward to his leadership in the legal academy."
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Unhappy Experience with Speakeasy.net::

I won't bore you with all the details, but the basics: (1) our service, though pricey ($39.95 plus per month, compared to half that much for Verizon), was much worse than our prior experiences with DSL and cable--poor download and upload speeds (we paid for only the slower speed service, but it was much slower than advertised), intermittent outages, etc. For complicated reasons, we had to keep Speakeasy service, but when we recently moved and had other options we wanted to dump it. But we were told that the company would stick to the letter of our TOS and charge the $300 fee, unless the problem we had was deemed "unfixable." A customer service rep made it clear that dissatisfaction with service, even with documented complaints to back it up, is not grounds for waiving the fee; (2) several customer service reps. would not put us in touch with their superiors--one rep promised a return call from a supervisor, which we never got, while another gave us an email address for management, but two emails were not returned; (3) at least one representation was made to us, perhaps in error, that there wouldn't be a charge for canceling the service. We relied on this representation in setting up other service in our new home, and in not arranging to transfer Speakeasy service in advance so we wouldn't have a service gap. But when we tried to cancel (we were told to call back the day we wanted service to end), and explained what we had been told, the customer service rep said something along the lines of, "just because someone you called here said something, doesn't mean it's right, we only go by the contract."

In fairness, I can say one good thing about the company: when you call technical support, they answer right way, and try to be helpful.

Interrogation Law Is a Secret:

The Senate Judiciary Committee would like details on what the Justice Department considers to be the legal limits on coercive interrogation techniques (i.e. where harsh-but-permissible interrogation techniques end and torture or otherwise illegal conduct begins). The Justice Department says no dice. Regardless of one's views of the proper limits of legal interrogation, this should be troubling. As Marty Lederman comments:

there is usually very good reason for not disclosing information on exactly which tactics and methods the CIA has actually used on which detainees, and which techniques have been successful. Much of what the CIA does around the world is kept secret, at least in the short run. But I remain unconvinced that it is necessary to classify the legal limits on the CIA's interrogation techniques -- i.e., to have a secret law that the public and the Congress cannot know about.

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Judicial Seminars -- Dowling Complains; Adler Responds:

In my last post on the D.C. Circuit’s rejection of an amicus brief submitted by former judges, including former D.C. Circuit Judge Abner Mikva, I responded to Mikva’s suggestion that Judges Sentelle and Randolph rejected the brief because of his opposition to privately funded seminars for federal judges. Among other things, I wrote:

As for my accusation against Judge Mikva, he endorsed a report attacking privately funded seminars for judges that included ridiculous charges against sitting judges, including judges with whom he served. One of the charges was that a judge's vote in a case was influenced by having attended a seminar — even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with "anti-environmental" views.
I also linked to an NRO article of mine about these charges.

Timothy Dowling of Community Rights Counsel believes that my characterization of CRC’s work on privately funded judicial seminars was inaccurate. Dowling writes:

I am writing to correct your recent misrepresentations regarding Community Rights Counsel’s position and statements on private judicial seminars. In a 12/30 post at The Volokh Conspiracy, you accuse us of making the “ridiculous” accusation “that a judge's vote in a case was influenced by having attended a seminar even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with ‘anti-environmental’ views.”

Your post does not identify the case you have in mind (is it Florida Audubon?), but to my knowledge we have never made any such accusation. In fact, our reports on private judicial seminars expressly note the timing of such post-ruling seminars precisely to eliminate any suggestion of influence (e.g., p. 78 of “Nothing for Free,” observing that Judge Sentelle did not attend a FREE seminar until after his vote in Florida Audubon, and contrasting his situation with judges on the case who attended pre-ruling seminars).

Even with respect to pre-ruling seminars, our reports caution against casual inferences of influence or causation. And in our ethics petitions filed with federal appellate courts, we likewise have made clear we are not accusing any judge of improper conduct in a particular case, or of being unduly influenced by any particular seminar. We object to the inevitable appearance problems raised by these seminars as a general matter. We also express concern about the specific appearance issues raised in individual cases when judges attend a private seminar held in close proximity (either shortly before or shortly after) the issuance of a ruling. Litigants in these cases and leading ethics experts have joined us in expressing these concerns.

More to the point, the central ethical problem remains regardless of the seminar’s timing or content. Our position is straightforward: Federal judges should be held to the same ethical standards respecting the travel gifts that attend private seminars as the federal prosecutors that practice before these judges. USDOJ attorneys, other federal attorneys, and indeed all Executive Branch employees are prohibited from personally accepting substantial travel gifts, including those associated with continuing education, offered to them by virtue of their official position. Federal judges should be held to the same standard, as I argue in this Legal Times op-ed.

If you believe that federal judges should be subject to less demanding standards than those that apply to federal attorneys, I’d be interested in hearing your reasons. Alternatively, if you believe Executive Branch employees should be allowed to cash in on their official positions and accept travel gifts for seminars at Hilton Head, Bozeman, and other vacation hot spots offered to them by virtue of their positions as public servants, again I would welcome your contribution to the public dialogue. But your misrepresentations of our position in an attempt to score cheap debater’s points are a disservice to our profession.

I stand by my representations of CRC’s attacks on privately funded judicial seminars, in particular my representation of CRC’s July 2000 report, Nothing for Free. The report is filled with inaccuracies, such as the claim that conference sponsors pay for judges’ leisure activities; that FREE conferences are held at luxury resorts; that the conferences in question “present a single and unchallenged line of reasoning in areas of law with many competing views”; and that “These seminars amount to a veiled effort to lobby the judiciary under the guise of judicial education.” (p. 1) CRC personnel also participated in misleading news reports, such as one appearing on ABC’s “20/20”, that suggested private funders were paying to take judges golfing, rather than sponsoring intensive educational programs. In Nothing for Free, CRC called for a "ban" on privately funded judicial seminars.

The primary thrust of the report was that private judicial seminars are altering judicial opinions, and “breeding a new conservative judicial activism” (p. 2). Nothing for Free warned of

the emergence of a growing anti-environmental judicial activism developing in lockstep with the ideological goals promoted by the Big Three [sponsors of judicial education conferences]. Four key legal issues are focused on, and remarkably, in each area, the author of every leading activist decision has attended at least one Big Three seminar. Most of the judges attended numerous trips, sometimes while a pertinent case was before the court, and sometimes ruling in favor of a litigant backed by the same special interests that sponsored the judge’s trip. (pp. 2-3)
One of the “four key legal issues” addressed in the report is standing. The only two standing cases the report suggests were influenced by attendance at judicial seminars are Florida Audubon Society v. Bentsten (D.C. Cir. 1996) and PIRG v. Magnesium Elektron (3rd Cir. 1997) (pp. 74-78). To stress the point, the report has a text box highlighting the fact that the authors of the two opinions, Judges David Sentelle and Jane Roth, respectively, both attended conferences sponsored by FREE or other organizations (p. 77). Later on in the report, one finds that Judge Sentelle did not attend a conference until after his opinion was issued. Yet Florida Audubon is supposed to be a “striking example” (p. 77) of the “new conservative judicial activism” fostered by privately funded seminars for judges.

The other example in the standing section of the report is hardly more compelling. Yes, Judge Jane Roth did attend more conferences than Judge Sentelle – a grand total of three during the period in question. She too attended a conference after authoring the decision in question. She also attended one beforehand – but it was two years beforehand. This, CRC tells us, is a “compelling example of the appearance problems that can result” from such conferences. To me this charge is, as I said in my prior post, “ridiculous.”

Judge Mikva authored the Foreword to the report, in which he suggested that “private interests are allowed to wine and dine judges at fancy resorts under the pretext of ‘educating’ them about complicated issues.” (p. iii). I would certainly understand if this upset Judge Sentelle and other judges with whom Mikva served who are attacked in the report, but I do not believe it would influence their judgment in legal matters. In any event, Judge Mikva’s endorsement of the report was particularly unfortunate because, as Judge Randolph documented in this article, the actual seminars, as conducted, present no ethical problems for federal judges.

While CRC’s attacks on judicial conferences have become more nuanced and responsible since the Nothing for Free report, they are still based on misrepresentations of the conferences and the faulty premise that we have something to fear from exposing judges to a variety of viewpoints on broad issues of public importance. (Set aside that CRC conveniently gives some sponsoring organizations, such as the Aspen Institute, a pass; p. 18).

At this point, I think that there is little question that these seminars, as conducted, comply with all of the relevant conflict-of-interest rules for federal judges. Indeed, courts and independent reviews have repeatedly rejected ethical complaints and recusal motions alleging otherwise. For instance, CRC filed an ethics complaint against Chief Judge Danny Boggs for serving on FREE's board. This complaint was dismissed in an opinion finding many of CRC’s attacks lacked “factual foundation” and “typif[ied] the character assassination that is all too common in our Nation's Capital, much of it intended to further the accuser's legislative agenda.” This opinion and various reviews of FREE’s conferences are available from FREE’s website here.

The Federal Advisory Committee on Codes of Conduct of the Judicial Conference’s Advisory Opinion 67 outlines the requirements for privately funded judicial seminars. I believe this opinion (revised as recently as 2004) sets a sensible standard, and there is little question that the programs CRC attacks comply. Among other things, the opinion notes:

The education of judges in various academic and law-related disciplines serves the public interest. That a lecture or seminar may emphasize a particular viewpoint or school of thought does not necessarily preclude a judge from attending. Judges are continually exposed to competing views and arguments and are trained to consider and analyze them.
I agree with this wholeheartedly. It is rather clear to me that at least some of Tim Dowling’s colleagues at CRC feel otherwise.

UPDATE: Tim Dowling responds in the comments below. I did not apologize for my characterization because I believe my post was accurate. CRC's report stated Judge Sentelle's opinion was a "striking example" of the ideological corruption caused by these seminars, insinuating his opinion was altered [influenced by the seminar], and then noted he had yet to attend a conference at which his mind could be polluted by presentations, debate, and discussion on economic and environmental subjects with other judges.

As for CRC's motivations, Dowling's colleagues have reaptedly warned of the allegedly dangerous ideological agenda of the sponsors of the seminars they attack, while (in the 200 report) giving the Aspen Institute a free pass (even though Aspen, unlike some CRC attacks, has even paid the expenses of judges' spouses). If this is not an issue, why is it so central to the 2000 report and other CRC output on the subject? And if ideology is no concern, why does CRC continually misrepresent the content of these seminars? If CRC's position has changed, that is great news, and I will be happy to publish a prominent post noting CRC's repudiation of its prior statements, and acknowledging that many of my criticisms no longer apply.

In the end, Dowling wants the taxpayers to pay for more judicial education, while I am happy to have it done by non-profit organizations, universities and others, while requiring judges to make appropriate disclosures. I think it is clear which approach will expose judges to a wider array of perspectives and educational opportunities. As I've said before, if federal judges — who spend their entire careers listening to persuasive arguments by individuals paid substantial sums to change the judges' opinions — are so easily swayed, these sorts of judicial conferences are the least of our worries.

UPDATE TO THE UPDATE: I corrected a typo above as indiciated. "Altered" was not the word I intended.

FINAL UPDATE: Tim Dowling responds again. Dowling focuses on what may have been an overstatment on my part — did CRC "charge" Sentelle with having been influenced, or merely insinuate as much — without choosing to defend the report as a whole. It's worth noting here that Dowling's own work on this subject, such as the op-ed linked above, is significantly more nuanced and judicious than the report at issue.

The Nothing for Free report repeatedly stresses that the author of "the judges writing the decade’s most activist, anti-environmental opinions have all attended" objectionable seminars (p. 4, emphasis added; for similar statements see pp. 2-3, 62, 78). This would certainly seem to include Sentelle. The "Scorecard" boxes that appear through the report emphasize the point. That, in reconting the details, the report tacitly acknowledges that the case against some judges, such as Sentelle, is weaker than others does not mean CRC did not suggest "all" of the judges were influenced. The broad insinuation is made repeatedly, while the qualifications are tacitly buried well into the text.

In any event, if I'm over-interpreting CRC's language — and seeing more of an attack on Judge Sentelle (for whom I clerked, though not during the case in question) than the language will bear — that hardly exonerates the report, or makes the basic charges less "ridiculous." See, for instance, the report's treatment of Judge Roth who authored the only other standing case it discusses. Thus, I don't believe I owe CRC an apology, though the folks at CRC may wish to consider whether they owe apologies to the judges written about in their reports.

40 Comments

Tuesday, January 2, 2007

"Chaos Overran Iraq Plan in '06, Bush Team Says": Today's New York Times has this fascinating piece about how the Bush Administration's Iraq policy worked — or, as the case may be, didn't work — in the last year or so. From the conclusion:
Mr. Bush still insists on talking about victory, even if his own advisers differ about how to define it. "It’s a word the American people understand," he told members of the Iraq Study Group who came to see him at the White House in November, according to two commission members who attended. "And if I start to change it, it will look like I’m beginning to change my policy."
120 Comments
Chief Justice Roberts claims that low judicial pay is a "constitutional crisis":

In his recent year-end report on the state of the federal judiciary, Chief Justice John Roberts has renewed his call for an increase in judicial pay, claiming that the problem has "now reached the level of a constitutional crisis and threatens to undermine the strength and independence of the federal judiciary."

Longtime VC readers will not be surprised to learn that I disagree with the Chief Justice. In series of posts a few months ago (see here and here), I criticized earlier calls for a judicial pay increase, including Roberts' argument in his previous annual report. To briefly summarize, my main points were that federal judges have an exceptionally low turnover/resignation rate and there is little or no evidence that the quality of federal judiciary is suffering because salaries are too low. Nor is it accurate compare federal judges to partners at big firms (as advocates of a pay increase often do) because judges 1) have better retirement benefits, 2) have much shorter and more flexible hours, and 3) often have more interesting work and other nonpecuniary benefits (e.g. - power and prestige) that law firm lawyers (and even we professors!) get less of.

All of these points are equally applicable to the Chief Justice's latest call for a judicial pay increase. At the very least, they deflate the somewhat hyperbolic claim that the state of judicial pay is a "constitutional crisis." As I noted in one of my earlier posts, current judicial pay is not exactly low:

Chief Justice of the Supreme Court: $212,000

Associate Justice of the Supreme Court: 203,000

Court of Appeals Judge: 175,100

District (trial) Judge: 165,200

Yes, these salaries are lower than what partners at top private firms make, but for the reasons indicated in the linked posts, that does not prevent the federal judiciary from attracting and retaining top-quality people. In his reports, Chief Justice Roberts tries to justify a judicial pay increse by comparing judges' salaries to those of other types of lawyers who make more money. However, the key public policy question is not whether judges make as much money as Group X, but whether judges' salaries are high enough to attract the level of talent we need.

In the current report, Roberts adds to his earlier argument by making the claim that judicial pay should increase because, unlike in 1969, when federal district judges had higher salaries than the Dean of Harvard Law School, today district judges earn "less than half" as much money as deans and "senior professors" at "top law schools." Even if the data Roberts cites is accurate, it doesn't justify a judicial pay increase. The vast majority of law professors earn far less than district judges do ($165,200), and while law professors have good retirement benefits, they are not comparable to those of federal judges (retirement at full pay for any judge who has reached the age of 65 and has had at least 15 years of service). To the extent that the comparison between judges and law professors is appropriate at all, one should compare total compensation, not just salaries, and one should also compare the judges to the full range of law professors, not just "senior professors" at a few top schools. The comparison to top law school deans is even more misleading than that to law professors. A law school dean has to run an institution with dozens of faculty and staff and hundreds of students, as well as be expert in law. Federal judges have much less managerial responsibility than this. It is no more inappropriate for federal judges to have lower salaries than top law school deans than it is for them to have lower salaries than corporate executives.

I don't blame Roberts for advocating increases in judicial pay; lobbying for the interests of his fellow judges is arguably part of the chief justice's job and Roberts' predecessors (Warren Burger and William Rehnquist) took the same position in their own annual reports. Nonetheless, his case for a judicial pay increase is far from compelling.

UPDATE: As Orin notes in his post on this issue, Roberts also claims that failure to raise judicial salaries as much as he believes necessary has caused what he considers a negative change in the composition of the judiciary:

An important change is taking place in where judges come from — particularly trial judges. In the Eisenhower Administration, roughly 65% came from the practicing bar, with 35% from the public sector. Today the numbers are about reversed — roughly 60% from the public sector, less than 40% from private practice. It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.

Like Orin, I believe that Roberts fails to prove that the change is either 1) harmful, or 2) caused by a decline in judicial pay relative to private sector pay. Since the Eisenhower Administration, there has been a major increase in the size and scope of the federal government, leading to the employment of many more government lawyers. The change cited by Roberts may simply be a result of the increasing percentage of lawyers working in government.

Related Posts (on one page):

  1. Chief Justice Roberts claims that low judicial pay is a "constitutional crisis":
  2. How Much Should Federal Judges Be Paid?:
56 Comments
Is Justice Stevens a Judicial Conservative?: In a recent interview with Jan Crawford Greenburg, Justice Stevens stated that he sees himself as a "moderate conservative" Justice:
Although Stevens is a maverick thinker who has proven to be surprisingly liberal and has kept the court from moving further to the right, today the justice said he stills sees himself as a conservative.

"I don't really think I've changed. I think there have been a lot of changes in the court." said the 86 year old Justice. "I can see myself as a conservative, to tell you the truth, a judicial conservative."
  My guess is that this will draw strong reactions from both sides of the political spectrum. I gather some conservatives will insist it is more proof that Stevens is out to lunch, and I gather some liberals will insist it is more proof that today's 'conservatives' are really lunatic neanderthals.

  I wonder, though, whether Stevens' self-perception is just a reflection of the what the phrase "judicial conservative" used to mean. Oversimplifying things a lot, in the 1960s and 1970s judicial liberals were the folks who favored the courts bringing about dramatic changes to the foundations of American law. In contrast, judicial conservatives were the folks who favored resisting those changes. The Justices who embraced some dramatic changes but rejected others were the moderate conservatives.

  I don't know whether Justice Stevens has this history in mind when he labels himself a "moderate conservative." As far as I know, he was not asked to define what he meant by the label. But if he has this somewat outdated framework in mind, then it doesn't seem particularly inaccurate to me.

  For my thoughts on the modern usage of such terms, see my earlier post, How Can You Tell if A Justice is 'Liberal' or 'Conservative'?

  Thanks to How Appealing for the link.
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How To Win Friends and Influence People:

I got a packet in the mail, with this hand-printed notation:

This is an extra copy of a draft that I had to update so instead of throwing it away, I am sending away, I am sending it to you. You may learn something, even though you probably are a liberal teaching at a liberal law school.

Enticing.

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Progressive Formalists? There is a very interesting post by Brian Tamanaha on Balkinization, entitled, Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely). Read the whole thing, but here is how it ends:
Finally, I must preempt a misimpression that might be created by the tenor of this post, which has articulated reasons why liberals should take legal formalism seriously. Although I am a liberal, those are not my reasons for doing so. I genuinely believe that the rule of law is essential to our society. Liberals and conservatives disagree about much, but on recognizing the signal importance of the rule of law we should be united. At the core of the rule of law is legal formalism, especially legal formalism by judges. For this reason:

“My name is Brian Tamanaha and I am a legal formalist.”

(Yuck, that was not an easy statement to make—try it and see.)
What with Jack Balkin now advocating a version of original meaning originalism (I will be uploading a reply on SSRN to his Abortion and Original Meaning soon), this may be the harbinger of a very interesting trend among legal academics.

BTW, Brian has a new book out that I am looking forward to reading entitled, Law as a Means to an End: Threat to the Rule of Law. Here is the publisher's description:
The contemporary U.S. legal culture is marked by ubiquitous battles among various groups attempting to seize control of the law and wield it against others in pursuit of their particular agenda. This battle takes place in administrative, legislative, and judicial arenas at both the state and federal levels. This book identifies the underlying source of these battles in the spread of the instrumental view of law - the idea that law is purely a means to an end - in a context of sharp disagreement over the social good. It traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law.
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Big Law Brain Drain: The New York Post reports that a "Brain Drain" is hitting major law firms:
  The city's largest, most prestigious law firms are suffering from serious brain drain.
  Young, Gen-X lawyers in their third to fifth year in the business are walking away from their $200,000-a-year positions in record numbers - at times without another job in view.
  The reason? They are unhappy with their Blackberry lifestyle - being tethered to the job 24/7 and having to rush back to the office at a moment's notice when e-mail orders pop up on the ubiquitous PDA.
  The exodus of law firm associates is unprecedented, according to the National Association of Law Placement, or NALP, which found that 37 percent of associates leave large firms within the first three years.
Maybe they all can become federal judges.

  Hat tip: Above The Law.
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A Funny Comparison:

Here's a Christian Science Monitor headline from last week:

Backstory: H.L. Mencken, 'The Sage of Baltimore,' had a zing bloggers can't touch

The story says nothing about bloggers or the Internet; rather, as best I can tell the article is trying to say that no-one can touch Mencken's zing. ("There's still time in this semicentenary year of H.L. Mencken's passing to review his contributions to American letters and ponder why -- even amid the modern effluvia of our hydra-headed media -- he remains the most widely quoted American writer.") That may well be right: Whatever you may think of his ideas or morals, the man did have a way with words, and the degree to which he continues to be quoted is evidence that he's a hard man to top.

But he's hard for everyone to top, whether one writes online or offline, and whether one is a professional journalist or an amateur. Perhaps he's zingier than 100% of all bloggers. Perhaps he's better than 99.999%. But he's zingier than 99.999% or 100% of all modern newspaper writers, too. So why the felt need to say that Mencken ("one of ours," I take it, in the headline writer's and editor's view) can't be touched by bloggers?

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How Much Should Federal Judges Be Paid?: Chief Justice Roberts' Year-End Report on the Federal Judiciary focuses on the salaries of federal judges:
This is usually the point at which many will put down the annual report and return to the Rose Bowl, but bear with me long enough to consider just three very revealing charts prepared by the Administrative Office of the United States Courts.

The first shows that, in 1969, federal district judges made 21% more than the dean at a top law school and 43% more than its senior law professors. Today, federal district judges are paid substantially less than — about half — what the deans and senior law professors at top schools are paid. The next chart shows how federal judges have fared compared not to those in the legal profession, but to U.S. workers in general. Adjusted for inflation, the average U.S. worker's wages have risen 17.8% in real terms since 1969. Federal judicial pay has declined 23.9% — creating a 41.7% gap.

Some of you may be thinking — "So what? We are still able to find lawyers who want to be judges." But look at the next and last chart. An important change is taking place in where judges come from — particularly trial judges. In the Eisenhower Administration, roughly 65% came from the practicing bar, with 35% from the public sector. Today the numbers are about reversed — roughly 60% from the public sector, less than 40% from private practice. It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.
  I have two thoughts in response. First, while I'm sympathetic to the Chief Justice's basic argument, I think these three comparisons are fairly weak. Law dean and top prof salaries have gone up a great deal in the last 35 years in response to the changing nature of deanships and a developing market for "star" faculty members. Neither change has an analog in the nature of judgeships. Similarly, the decline in judicial pay in real terms since 1969 occurred largely during the inflationary period of 1969-1975; since 1975, salaries have stayed roughly within the same zone in real terms. Finally, the higher percentage of federal judges from the public sector could have many causes, of which judicial salaries is only one, and I'm not sure the change is necessarily a bad thing.

  My second thought is that it's unfortunate that federal judicial salaries are flat across positions. District court judges all earn one salary, circuit court judges all earn another. This means that district court judges earn the same $165k regardless of where they sit, how many cases they hear, and whether they are the living reincarnation of Learned Hand or an embarrassment to the bench. So long as raising the salary for any judge involves raising the salary for all of them, judicial salaries will be much too low for some and too high for others. Of course, uniformity serves important interests, both practical (how do you measure judicial quality?) and constitutional (see Article III, Section I). But I wonder whether there might be some way of breaking out of the uniform salary bind without interfering with those interests. For example, would be it be out of the question to pay judges in districts with higher costs of living more than judges in less expensive districts? Perhaps this is unrealistic or unfeasible, but I wonder if it might help address the Chief Justice's concerns without requiring Congress to raise salaries across the board.
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Monday, January 1, 2007

Time for an Open Thread: January 1 is always a quiet day for blogging. What's on your mind?
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Has Law Blogging Peaked?: Peter Spiro, Marty Lederman, Dave Hoffman and others are wondering about this question over at Opinio Juris. I think I'll stick with the prediction I made in October 2005:
It's hard to predict these things, of course, but I would suggest a fourth future [for law blogging]: A continued increase in the overall amount of law blogging until we reach a natural equilibirum, and then a roughly constant amount of blogging with frequent turnover among active law bloggers. Here's my thinking. Right now law blogs are pretty new, and the number of law bloggers is increasing. But it's much easier to start a blog than to keep it up. A typical post might take an hour or so to research, write, and edit. And the better and more thoughtful the post, the more time it takes. Only so many people are willing to put in those hours on a regular basis, and members of that twisted elite group presumably will change over time, too.
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The Last Words on Federalism's "Taint":

Additional thoughts on the subject — and the debate that prompted it — from Daniel Drezner and Jacob T. Levy. I think they have the last words.

UPDATE: Silly me. Of course Ann Althouse gets the last word — she's a diva.

ANOTHER UPDATE: Will Baude didn't get the message.

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Happy New Year:

It's been quite a year for me: retiring Juan, getting tenured, coming clean, moving to the suburbs, becoming director of the Center for Business Law & Regulation, getting married, and starting the process of adopting the Ellster. I wonder what 2007 has in store.

Sunday, December 31, 2006

Michigan's Anti-Race-Preference Amendment Back in Operation:

Friday, the Sixth Circuit vacated the federal district court injunction that temporarily blocked the amendment's operation. It's an interesting decision, both on the substantive constitutional questions and on the procedural issues.

On the substance, the panel holds that "[plaintiffs] have little likelihood of establishing that Proposal 2 violates the federal constitution," though it doesn't definitely resolve that question. (The preliminary injunction decision is about the likelihood of future success on the merits, and contemplates a more detailed decision both at the district court and eventually on appeal after a full hearing on the merits takes place.) Michigan universities must thus adhere to Proposal 2 right away, even though it may mean changing their admission system in the middle of the admission process. Nonetheless, the panel closes with this interesting procedural discussion:

Which leads us to our last point: this is an unusual way to use the federal courts. Ordinarily, one might wonder why a court would hesitate to delay the implementation of a state law for six months when the State’s Governor, the State’s Attorney General and its Universities stand together in urging its suspension. That is particularly so when they offer reasonable administrative grounds for the delay -— uncertainty about how the law will be interpreted and uncertainty about applying it during this year’s enrollment cycle. Yet none of those administrative grounds explains why the federal courts should delay the law’s implementation on federal grounds. And none of those administrative grounds explains why a federal court should suspend the law while it declares the Universities’ “rights and responsibilities” under the new state law —- given that state courts, not federal courts, have the final say on the meaning of state laws and given that the only vehicle ever presented in this case for such a declaration of rights was the Universities’ cross-claim, which they voluntarily dismissed.

All of this, however, strongly suggests that if an interim injunction should be granted in this case, it is the state courts, not the federal courts, that should grant it. The state courts assuredly have authority to delay the law’s implementation during this enrollment cycle -- either because the meaning of the law is unclear or because it will be administratively onerous to apply it immediately. If, as the state parties have maintained throughout this litigation, a stipulated injunction accounts for the concerns of all interested parties and the people of Michigan, one can rest assured that the state courts will see it that way as well. But if the state courts do not see it that way, that proves only that there is another side to the story, one that the federal courts should be prepared to respect.

Thanks to Jerry Wachs for the heads-up.

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NYT on Gitmo Review Boards: The Sunday New York Times has a fascinating story about the review boards being used at Guantanamo to determine who at Gitmo can be held as an enemy combatant.
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