Saturday, March 24, 2007

Internet Improves Criminal Trial Coverage:

At least when there's a trial that draws a lot of media attention. My latest media column for the Rocky Mountain News suggests that the media are using the web effectively in order to supply high-quality, up-to-the-minutes news and analysis about the insider trading trial of former Qwest chief Joe Nacchio.

My column from a couple weeks ago noted how University of Colorado law professor and Rocky Mountain News columnist seems to be acting more like Ann Coulter these days. The column suggests that both Campos and Coulter ought to return to the more adult level of discourse that marked, for example, their 1998 debate on CNN.

Conspicuous Virtue:

Writing in yesterday's Wall Street Journal, Joe Rago notes the updated version of Veblen's concept of conspicuous consumption--"conspicuous virtue":

Conspicuous consumption stays with us today. But increasingly, it seems to me, many consumers are not seeking an outright demonstration of wealth. Instead, they consume to demonstrate their innate goodness. They spend not to suggest the deepness of their pockets but the deepness of their hearts. We inhabit, to update Veblen, an age of conspicuous virtue.


A trip to the supermarket is instructive. For some time, everyday food has groaned with every sort of moral sentiment: all-natural, sustainable, cage-free, free-range, organic, organic, organic. Foods like these are more than mere sustenance: They commodify values, making them real -- material -- in the world. They are virtuous goods. To consume a virtuous good is to make a statement. It is not only to do right, whatever that might mean, but to announce that you are doing so.

Thus we encounter the extreme specialization of virtuous consumption. Upscale boutique grocers like Whole Foods Market and Trader Joe's base their identities (and marketing strategies) on giving people a way to eat so that each of us may demonstrate where we rank in the virtue standings. The "holistic thinking" of Whole Foods Market, for instance, could not be fully expressed in a "vision statement," so the store is governed by a posted "declaration of interdependence" as well. Trader Joe's actually makes a point of advertising that it does not kill baby seals in the procurement of seafood.


To be sure, Veblen's notion of "superfluity" is bound up in this evolution of shopping. No one would go to Wal-Mart in search of conspicuous virtue. Only the reasonably affluent can afford to align their products with their beliefs.

Take Toyota's hybrid auto, the Prius. Studies consistently show that fuel savings do not justify the price premium of a gasoline-electric power train. People who can afford the gesture continue to buy the Prius anyway, largely because it certifies personal enlightenment in the matter of global warming. The original design was adorned with cues to distinguish it from a normal car, such as a tapered rear end and skirts over the back wheels. Even without these particular elements, the Prius remains distinctive (or bulbous) enough for everyone to recognize.


Culturally, it addresses a continuing fussiness, even conflictedness, about materialism in America. Conspicuous virtue offers to those with guilty consciences a way to feel OK about consumerism. A fine scotch is vulgar. A "fair trade" scotch is righteous.

Yet we also have here a tidy illustration of a robust market economy at work. If consumers desire the specialized production of goods as evidence of moral strength -- hell, they'll get it. But there may not be any deeper meaning than that.


My wife and I going to Iceland in June and we'll have about 4-5 days to travel before I have to give a talk in Reykjavik. I'd appreciate any tips anyone has about sights to see and things to do. I'd especially appreciate any tips about underrated activities that we wouldn't find in a guidebook or overrated activities that a guidebook typically would recommend but that we should consider skipping. We plan to rent a car. Thanks!

The 300 in History:

Here is an interesting essay by Victor Davis Hanson on the extent to which "300" is (and is not) true to historical accounts of the battle of Thermopylae. Although adapted from a Frank Miller graphic novel, the answer is, more than you might have thought.

300 preserves the spirit of the Thermopylae story. The Spartans, quoting lines known from Herodotus and themes from the lyric poets, profess unswerving loyalty to a free Greece. They will never kow-tow to the Persians, preferring to die on their feet than live on their knees.

If critics think that 300 reduces and simplifies the meaning of Thermopylae into freedom versus tyranny, they should reread carefully ancient accounts and then blame Herodotus, Plutarch, and Diodorus — who long ago boasted that Greek freedom was on trial against Persian autocracy, free men in superior fashion dying for their liberty, their enslaved enemies being whipped to enslave others.


Friday, March 23, 2007

Child Abuse Disguised as "Hydrotherapy":

By one Igor Charkovsky, of Russia. The details are almost too ridiculous, and frightening to believe. E.g.,

"Charkovsky arrived at the pool accompanied by a crew of female assistants or fans, some of whom held their infants only by the wrists as they swung them in every direction. Afterward a boy of five at the most was made to enter the water despite loud and heartrending protests. Charkovsky grabbed him by the ankles, threw him up high and thrust him deep into the water. He just picked him up like an object, without any preparation, without any empathy, gentleness or attentiveness to the boy's terrified screams. This went on for at least 40 minutes. The boy screamed, 'No, no, I don't want it, Mommy! Enough!' and it didn't stop. After 15 minutes his strength seemed to wane and the screams turned to gurgles. When Charkovsky took a short break we saw the boy vomiting up the water he had swallowed during the screams.

"I looked at my wife in shock. One of the women who works with Charkovsky came over to us and said, 'If you want to watch the work - only with loving eyes. I know it might look bad, but this boy is suffering from a serious birth trauma, because his mother was completely opened up, and if he is not released from the trauma he is liable to grow up to become a criminal or a drug dealer."

The Religious Test Clause:

I'm delighted to say that Prof. Paul Horwitz, from Southwestern Law School will be blogging next week about his new article, Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations, 15 Wm. & Mary Bill Rts. J. 75 (2006). I read the article and found it to be interesting and important, and thought I'd invite Prof. Horwitz here to discuss it. Here is the abstract, for those who want to get a sense of what the posts will mostly be about:

The Religious Test Clause of the United States Constitution states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Although it is the only place in the main text of the Constitution that mentions religion, it has been habitually ignored - until now. In the past several years, a spate of lower federal court nominations and two Supreme Court nominations - the successful nomination of Chief Justice John Roberts and the abortive nomination of Harriet Miers - have occasioned public debate over whether the Religious Test Clause forbids Presidents and/or Senators from supporting, opposing, or even questioning nominees on the basis of religion. More broadly, these events have been the occasion for discussions about whether and how religion may be raised in the public debate surrounding judicial nominees. Because the Roberts and Miers nominations present neat mirror images of each other, with religion used as a disqualification in one nomination and a qualification in the other, it is an opportune moment to assess what the Religious Test Clause has to say about these cases, and about the use of religion in the federal judicial nomination process more generally.

This article, a contribution to a Symposium on "Religion, Division, and the Constitution," is the first to fully examine these questions. After discussing the invocation of the Religious Test Clause in the recent nomination controversies, it looks carefully at the text and history of the Religious Test Clause. It argues that the Religious Test Clause precludes Congress or the President from imposing a formal test oath on would-be federal office-holders that would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines. And that is all it does. A President may select nominees on the basis of their faith if he chooses; a Senator may question a nominee on his or her faith or religiously derived beliefs, or support or oppose a nominee on that basis. Thus, those public officials, public figures, and commentators who argued during the recent nomination process that the Religious Test Clause barred certain actions or inquiries were wrong.

I argue that this conclusion is not only descriptively accurate; it is also normatively sound. There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee. To silence such inquiries because of the dangers of intermixing religion and politics ultimately disserves the broader principle that religion ought to be a fully welcome part of discussion in the public sphere. In addition, the broad reading of the Religious Test Clause, by constitutionalizing an area of politics, unduly limits the scope of popular responsibility for the political process. The best remedy for abuses of religion in the judicial nomination process lies in the realm of ordinary politics, and not in the Constitution.

Although the Constitution thus provides few if any barriers to the use and abuse of religion and religious rhetoric in the federal judicial nomination process, nothing prevents us from attempting to craft evaluative criteria that might lead to more fruitful uses of religion in public debate, and to guide our understanding of how well or poorly religion has been used in the public debate surrounding judicial nominations. The article thus offers several principles of "constitutional etiquette" that might guide our understanding of the sound use of religion in this context, and measures the recent nomination controversies against these standards. It concludes that even with these criteria in place, the invocation of religion in judicial nominations, as elsewhere, may lead to more rather than less division in our national politics. But the price is well worth paying, if our public discussions become richer and deeper as a result.

"French Court Rules for Newspaper That Printed Muhammad Cartoons":

So reports the New York Times:

A French court ruled Thursday in favor of a satirical weekly newspaper that faced charges brought by two Muslim groups after it published cartoons featuring the Prophet Muhammad that had caused an international uproar when a Danish newspaper published most of them.

The charges, brought by the Paris Mosque and the Union of Islamic Organizations of France, accused the newspaper, Charlie Hebdo, and its editor, Philippe Val, of "publicly abusing a group of people because of their religion."

The charges could have resulted in a six-month prison term for Mr. Val and a fine of about $29,000 against the newspaper....

The court acknowledged that one of the cartoons, which depicted Muhammad wearing a turban shaped like a bomb, might offend some Muslims. But it said that, given the context of its publication, it saw no "deliberate intention of directly and gratuitously offending the Muslim community." ...

The Union of Islamic Organizations of France said it would appeal the decision....

My question, for those who know French law on this -- what if a court had concluded that the newspaper did deliberately intend to offend Muslims, perhaps because it thought Islam was an evil religion? Consider how quite a few people who think ill of Christianity do deliberately intend to offend Christians, and how quite a few people who think ill of Scientology deliberately intend to offend Scientologists, at least in the sense of knowing that their actions will offend and not caring, or perhaps even hoping that those who the speaker things adhere to an evil or foolish ideology will indeed be offended. Would the editor have then gone to jail, on the grounds that the offense was deliberate, direct, and gratuitous? Would the newspaper have been fined?

The Vault's List of the Top 25 Most Underrated Law Schools:

The Vault has recently conducted a survey of legal recruiters designed to generate a list of the Top 25 most underrated law schools (hat tip: Paul Caron).

The top ten most underrated schools were:

1. Emory

2. Fordham

3. Howard

4. Chicago-Kent

5. Oregon

6. George Mason

7. Illinois

8. William & Mary

9. Vanderbilt

10. Georgia

As you can see, George Mason scored very high on this survey, suggesting that we (or at least our graduates) are significantly better than our reputation suggests.

The Vault asked 512 legal recruiters to "name law schools that, based on their experience as hiring managers, are underrated. There was no limit to the number of law schools a hiring manager could name as underrated." To calculate each school's total score, the Vault used the following formula:

* 50% of the score is based on the number of votes a law school received from recruiters in its own region, when compared to the votes received by other law schools in the region.

* 50% of the score is based on the number of votes a law school received from recruiters outside its region, when compared to the votes received by law schools nationally.

As with the more general US News rankings of law schools, the Vault approach has its shortcomings. I am skeptical that most recruiters really know much about more than a fraction of the 190 AALS-accredited law schools in the country (which is also true of the law professors and practitioners surveyed by US News). This weakness is partially offset by the focus on recruiters from the school's own region (who are likely to know more about the schools in their area), but only partially. A second and perhaps more serious problem is that a school that is widely viewed as underrated may no longer actually be underrated precisely because so many people now agree that it is. The truly underrated schools are ones whose true qualities are not appreciated by recruiters and others in the field. Finally, it's important to note that this is a study of perceived underratedness, not a measure of absolute quality. The fact that GMU is No. 6 on the list and Illinois No. 7 doesn't necessarily mean that our graduates are better than theirs, but only that recruiters believe they are slightly more underrated.

That said, the Vault survey does still provide some useful information for legal professionals and aspiring law students. Particularly interesting is the fact that several schools that already enjoy strong reputations (e.g. - Vanderbilt and Emory) are still viewed by the recruiters as underrated (i.e. - they may be even better than their already strong reputations). And of course the Vault survey provides additional proof that George Mason deserves to rise further in the US News rankings:).

Comment of the Week:

I'm giving Bored Lawyer the Comment of the Week for explaining Nevada's interior decorator licensing law:

BTW, did anyone else notice that the law on its face would prevent a person from moving their own furniture?

This could be a definite advantage in some circumstances:

Wife: Honey, I want to rearrange our furniture, could you move the couch by the window?

Husband: Sorry, honey, no can do. I don't have an interior decorator's license.

Was There "Political Interference" in Tobacco Litigation?

With the Attorneygate scandal continuing unabated, the time was right to renew charges that political appointees in the Bush Justice Department interfered to weaken the federal government's attempt to sue tobacco companies under Racketeer Influenced and Corrupt Organization (RICO) Act. Yesterday, the Washington Post ran a front page article repeating allegations by former Justice Department attorney Sharon Eubanks that "Bush loyalists" at DoJ "began micromanaging the team's strategy in the final weeks of the 2005 trial, to the detriment of the government's claim that the industry had conspired to lie to U.S. smokers."

She said a supervisor demanded that she and her trial team drop recommendations that tobacco executives be removed from their corporate positions as a possible penalty. He and two others instructed her to tell key witnesses to change their testimony. And they ordered Eubanks to read verbatim a closing argument they had rewritten for her, she said.

"The political people were pushing the buttons and ordering us to say what we said," Eubanks said. "And because of that, we failed to zealously represent the interests of the American public." . . .

Eubanks said [DoJ political appontees] largely ignored the case until it became clear that the government might win. She recalled that "things began to get really tense" after . . . news reports in April 2005 that one government expert . . . would argue that tobacco officials who engaged in fraud could be removed from their corporate posts.

The article notes that DoJ's Office of Professional Responsibility rejected the charges after a formal investigation. Surprisingly, it makes no mention of the appeals court decision which largely pulled the rug out from under the Justice Department's legal strategy. In February 2005, in United States v. Philip Morris USA, the U.S. Court of Appeals for the District of Columbia Circuit roundly rejected the Justice Department's expansive interpretation of RICO that had been accepted by the lower court, and upon which Eubanks and others had hoped to base draconian penalties. Among other things, the court held that government prosecutors could not seek what amounted to criminal penalties (e.g., disgorgement) under RICO's civil provisions. This greatly reduced the government's leverage in settlement negotiations with tobacco companies, and called for rethinking the legal theory of the government's case — something Eubanks apparently did not wish to do.

The D.C. Circuit panel was divided, but there was never much doubt about the outcome — or that it would be upheld en banc, as it was in April (when Eubanks says she first started to get pressure to scale back the government's case). From its inception, the federal government's tobacco litigation was based on an extremely aggressive and expansive interpretation of RICO.

If there was a surprise, it was that political appointees in the Bush Justice Department allowed the government's case against tobacco makers to proceed for the first five years of the administration without any meaningful oversight, particularly given the novelty and expansive nature of the legal theory upon which the prosecution was based. One does not need to hold any sympathy for tobacco companies to believe a Justice Department victory would have set a dangerous precedent, greatly expanding RICO's scope, and the federal government's ability to use RICO's civil provisions against corporations. It was certainly not the sort of precedent one would expect an ostensibly conservative Justice Department to pursue.

The Post article also quotes anti-tobacco activist Matthew Myers saying Eubanks account is "the only reasonable explanation" for what occurred. Perhaps Myers should consult the tobacco litigation timeline posted on his own organization's website, as it includes the D.C. Circuit's decisions in its chronology of relevant events.

UPDATE: At NRO's Bench Memos, Ed Whelan has more on the allegations here and here.

SECOND UPDATE: E.J. Dionne repeats the allegation here.

Related Posts (on one page):

  1. Interference with Tobacco Litigation: DoJ Responds:
  2. Was There "Political Interference" in Tobacco Litigation?
University of Minnesota Law School Must be Doing Something Right:

UM has been doing a tremendous amount of lateral hiring lately, and excellent laterals at that. According to the lists compiled by Dan Filler at Concurring Opinions, last year Minnesota recruited Alexandra Klass from William Mitchell College of Law; Heidi Kitrosser from Brooklyn Law School; Claire Hill from Chicago-Kent; Thomas Kotter from Washington & Lee; Francesco Parisi from George Mason; and Chantal Thomas from Fordham. This year, Minnesota has recruited Laura Beny from Michigan; Susanna Blumenthal from Michigan; Thomas Gallanis from Washington and Lee; Michelle Goodwin from DePaul; and Gregory Shaffer from Wisconsin and Loyola.

I'd love to know the secret of Minnesota's recruiting success. I'm sure Minneapolis is a lovely city, but given the winter weather there, it must be awfully hard to persuade people to relocate (though less hard, I'm sure, if the candidate was already in Minneapolis, Chicago, or Ann Arbor, as six of them were--but still, if you lived in Chicago, wouldn't you want to move South).

New International Criminal Law Blog:

The American section of AIDP ((L’Association Internationale de Droit Penal/The International Association of Penal Law) has launched a new blog on international criminal law and related issues, including human rights law and counter-terrorism. Contributors include my colleague Michael Scharf, Mark Drumbl of Washington & Lee, Chris Blakesy of UNLV, and Michael Kelly of Creighton, among others.


Thursday, March 22, 2007

Thursday Night Baby Blogging:

Natalie Bernstein, 17 months.

George Will on Rent-Seeking:

George Will's column today has a great discussion of some classic rent-seeking regulation:

Consider the minor -- but symptomatic -- matter of the government-abetted aggression by "interior designers" against mere "decorators," or against interior designers whom other interior designers wish to demote to the status of decorators. Some designers think decorators should be a lesser breed without the law on its side.

Those categories have blurry borders. Essentially, interior designers design an entire space, sometimes including structural aspects; decorators have less comprehensive and more mundane duties -- matching colors, selecting furniture, etc.

In New Mexico, anyone can work as an interior designer. But it is a crime, punishable by a fine of up to $1,000 and up to a year in prison, to list yourself on the Internet or in the Yellow Pages as, or to otherwise call yourself, an "interior designer" without being certified as such. Those who favor this censoring of truthful commercial speech are a private group that controls, using an exam administered by a private national organization, access to that title.


In Nevada, such regulation has arrived. So in Las Vegas, where almost nothing is illegal, it is illegal -- unless you are licensed, or employed by someone licensed -- to move, in the role of an interior designer, any piece of furniture, such as an armoire, that is more than 69 inches tall. A Nevada bureaucrat says that "placement of furniture" is an aspect of "space planning" and therefore is regulated -- restricted to a "registered interior designer."

Placing furniture without a license? Heaven forfend. Such regulations come with government rationing of the right to practice a profession. Who benefits? Creating artificial scarcity of services raises the prices of those entitled to perform the services. The pressure for government-created scarcity is intensifying because the general public -- rank amateurs -- are using the Internet to purchase things and advice, bypassing designers.

Will notes that the folks at the Institute for Justice are on the case. IJ has information on the New Mexico interior design case here.

Diversity Within Institutions vs. Diversity Across Institutions:

David's post on efforts to make Brandeis University more "diverse" by making it less distinctively Jewish gives me a good opportunity to write about a pet peeve: The conflict between diversity within institutions and diversity across them.

Those who argue for diversity in higher education implicitly envision a school that has a "critical mass" of whites, blacks, Jews, Hispanics, and other groups. Such a university may well be internally diverse (at least in an ethnic sense), but if every school pursues this ideal, than they will all look more or less alike on the ethnic dimension, or whatever other criterion is chosen as the focus of diversity promotion. There will be diversity within institutions, but very little diversity across institutions.

By contrast, if Brandeis continues to be a distinctively Jewish school, Brigham Young continues to be a distinctively Mormon school, and so on, these schools can make unique contributions to American higher education that might otherwise be lost. Although Brandeis and BYU may not be internally diverse, they definitely add to the overall diversity of the American higher education system in two important ways. First, they give students who want to attend a distinctively Jewish or Mormon school an option they would not have if all schools stick to the internal diversity model. Second, faculty at a distinctively Jewish or Mormon school might well pursue research on subjects that are ignored or at least deemphasized at other types of institutions. Brandeis' traditional focus on hiring faculty who study the history of Judaism and the Jewish people is an example of the latter.

To be sure, a school built around a particular group identity will have weaknesses as well as strengths. But the weaknesses are offset by the fact that there will always be hundreds of other schools that do not try to foster a distinctive group identity. Students and faculty who don't want to be associated with a distinctively Jewish school have plenty of options, even if they can't attend Brandeis. The question is not whether there should be a large number of internally diverse schools, but whether all schools should be that way. Both students and scholars will be worse off if we exalt diversity within institutions to such an extent that diversity across institutions is eliminated.

Related Posts (on one page):

  1. Diversity Within Institutions vs. Diversity Across Institutions:
  2. More on Brandeis and Carter:
To your tents, O Israel!

The people of ancient Israel discovered that their militia-based confederation lacked the cohesion to protect them from foreign aggression. But when they created a strong central government with a standing army, their own liberties were endangered by that government. The American colonists and Founders closely studied Israel's experience, and tried to learn from it. That's the topic of my new article in the April 2007 issue of Liberty magazine. In HTML. In PDF.

More on Brandeis and Carter:

I've just come upon a rather remarkable essay by Prof. Harry Mairson of Brandeis University. Mairson was the primary force in pushing for Jimmy Carter to visit Brandeis, an event covered previously on this blog. The Carter visit created great controversy at Brandeis, and, along with more general controversy over the relationship between the Jewish community and Brandeis, was the subject of a recent Chronicle of Higher Education story.

Back to the Mairson essay: in it, he decries attachment to Jewish tradition and defends assimilation in remarkably unapologetic, even offensive, terms. How unapologetic? Mairson writes, "It's a shame that they're not making Jews like Felix [Mendelsohn, who was baptized and lived as a Christian] any more." Bizarrely, honoring Brandeis's Jewish heritage, according to Mairson, means "being a good theoretical computer scientist, ... doing a good job teaching, ... interacting with students, and .. getting grant funding." Those are all fine things, but what does that have to do with "Jewish?" Even Judaic studies, a secular, what might even say assimilationist, academic approach to Jewish history, religion, and culture, is "too Jewish" for Mairson, who decries the fact that Brandeis has a well-funded, influential, Near Eastern and Judaic Studies Department. Not to mention that he appears offended that an increasing number of Jewish Day School graduates are attending Brandeis (Orthodox Jews, according to Mairson, are not "diverse.")

All of this is a long way of saying that despite the pretense that the Carter visit was about "tolerance" and "academic freedom," it's more likely that it was an intentionally provocative act intended to harm, or even sever, the relationship between Brandeis and the Jewish community. That may or may not be a good thing (as I've noted previously, I think that there are much more worthy Jewish causes to donate to, if that's what you are after), but it conflicts with the self-righteousness displayed by Mairson and his allies on the faculty.

Moreover, as I've noted previously, the self-proclaimed defenders of academic freedom at Brandeis have still, to my knowledge, not said a word about Brandeis including the politicized concept of "social justice" in its mission statement. President Jehuda Reinharz has made Brandeis more of an officially "Jewish" institution (though the percentage of Jewish students has decreased), at least when soliciting donors, but even more so he has made it more an of an officially "liberal" institution. Funny how only one these maneuvers raises the hackles of Mairson and other faculty.

UPDATE: I'd be curious to know how many of the Brandeis professors who were intent on inviting Carter to campus were among those who protested the university's plan to award Jeane Kirkpatrick an honorary degree in 1994, on a purely ideological basis.

Sweden moves toward full marriage for gay couples:

Since 1987, Sweden has recognized "registered partnerships" for gay couples. Gradually, the Swedish parliament has added additional rights to the partnerships so that now gay couples enjoy substantially all of the rights of marriage. The partnerships are thus the equivalent of what we would call civil unions in the United States.

A Swedish government commission has just concluded that Sweden should now recognize full marriage rights for same-sex couples and concurrently abolish the system of registered partnerships. Same-sex partnerships, under the proposal, would automatically be made marriages unless the partners withdrew from the arrangement before a certain date. The report is in Swedish, one of the many languages I don't read, but there is an English language summary available at pp. 31-48 of the report.

I know almost nothing about Swedish politics, but the correspondent who alerted me to the report, Niclas Berggren, tells me that parliament is likely to adopt the proposal. Berggren works for the Ratio Institute in Stockholm, a private research institute focusing on entrepreneurship, institutional economics, and the political economy of reform.

If Sweden does recognize same-sex marriages, I believe it would become the first country/jurisdiction to move from civil unions to full gay marriage. That would help to relieve some of the concern that civil unions are a dead-end for gay couples. The concurrent abolition of civil unions would also give some comfort to those of us, like me, who believe that alternative statuses (civil unions, domestic partnerships) should be available only to same-sex couples and only as a temporary step toward full marriage, not as a permanent alternative to marriage

Balkinization on Attorney Purge Story: Over at Balkinization, Marty Lederman and Jack Balkin have been offering up some very interesting analysis on several of the legal issues relating to the U.S. Attorney purge story. Definitely worth checking out; whether you agree or disagree on the bottom line, their posts offer a strong starting point on these issues.

Wednesday, March 21, 2007

Cathy Seipp's Death:

Cathy was a fantastic writer, and a great person; I'll miss her very much.

Say What?

South Carolina Appellate Law Blog reports:

Here's one for all those arguing for simplicity in legal writing. This is from Jamison v. Ford Motor Company [a South Carolina Court of Appeals decision]:

The cognoscenti of federal preemption jurisprudence bestow panoramic application so as to limit state common law tort actions. We decline to accept this broad-brush federal judicial barricade....

Importantly, scholars on basic conflict preemption principles inculcate in regard to the fundamental elixir of the rule when juxtaposing federal/state constitutional analysis. If a state statute, administrative rule, or common law cause of action conflicts with a federal statute, it is incontestable that the state law has no efficacy. It is pellucid that the Supremacy Clause does not bless unelected federal judges with carte blanche to utilize federal law as a conduit to impose their own views of tort law on the States. Assumptively, we recognize that common law tort actions are historically within the scope of the States’ police powers and are safe from preemption by a federal statute unless Congress reveals a clear and manifest purpose to preempt....

Finally, we place our imprimatur and approbation upon the arbitraments of the circuit court in regard to ....


The Question is Why: I've been reading a lot about the U.S. Attorney purge story recently, and I think it's helpful to be clear about where the story is: In my view, the key question here is simply why the U.S. Attorneys were forced to resign. No one questions the President's legal authority to force the U.S. Attorneys to resign. No one suggests that forcing them to resign was illegal or is demanding their reinstatement. Rather, the question is simply why these U.S. Attorneys were pushed out.

  Some readers may ask, if no laws were broken, why should Congress be able to investigate what happened? I think the reason is that while the President can fire U.S. Attorneys without cause, Congress has a lot of control over what happens next. Until 2006, a replacement interim U.S. Attorney was permitted to serve only up to 120 days. After that, Congress required the district court to name a replacement interim U.S. Attorney. See 28 U.S.C. 546 (pre-2006 version). In 2006, Congress amended this law in the legislation generally known as the Patriot Act reauthorization law (not the actual Patriot Act of 2001, but the reauthorization in 2006). As amended in Section 502 of that law, a person appointed as U.S. Attorney on an interim basis "may serve until the qualification of a United States Attorney" through the usual Senate confirmation process.

  As I see it, the key point here is that Congress has statutory control over the rules governing how open U.S. Attorney spots are filled. Although firing the U.S. Attorneys was not a crime, Congress has a legitimate oversight interest in learning about how the Executive has used the power Congress has granted it. Why the U.S. Attorneys were fired seems to be directly relevant to that; Congress has a good reason to want to know if loosening the rules led to replacements of U.S. Attorneys for reasons that are not based on legitimate law enforcement concerns.

  Of course, the fact that Congress has a legitimate interest does not answer everything; there are lots of competing legitimate interests here, and that's only one among them. But I do think it's helpful to see that the issue here is why the U.S. Attorneys were fired rather than the legality of the firing itself.
President Bush's Warning: I watched President Bush's statement last night warning Congress about its investigation into the U.S. Attorney purge story, and I thought it was a remarkably bad performance. President Bush seemed weak, petty, and defensive. His rhetoric struck me as absurd: Given reason to think that at least some of the U.S. Attorneys were fired for not being excessively partisan, it falls flat to object to an investigation on the ground that the investigation is excessively partisan. No wonder that the House Judiciary Committee has already responded by authorizing the Committee Chair to subpoena White House officials if they will not testify voluntarily.
The lyrics without the music:

According to preliminary data reported today in the New York Times, same-sex couples in New Jersey aren't rushing to the altar...uh, union hall. In the first month civil unions have been available in the state, only 229 same-sex couples have signed up (the number may be somewhat larger as it's not clear that all jurisdictions in the state have reported).

If that rate continues, we could expect only about 4,500 to 5,000 civil unions over the next two years in a state with 8.6 million residents. By contrast, in the first two years of full-fledged marriage in Massachusetts, 8,764 gay couples got married in a state of 6.1 million residents.

What accounts for this lack of enthusiasm for civil unions -- in comparison to marriage -- by gay couples? A number of factors may be at work, but one the Times highlights is that civil unions are now seen by gay couples as an insult, a kind of second-class status akin to segregation. Consider what some New Jersey couples have to say:

Charles Paragian, a dance instructor in Little Ferry who with his partner of 17 years adopted five children from foster care, called the civil union “bread crumbs” compared with same-sex marriage.

“I don’t want my children to learn to settle for anything,” said Mr. Paragian, 44. “It’s a Jim Crow law, it’s two separate water fountains, it’s not equal, we just don’t agree with it.” . . .

Steven Goldstein, head of Garden State Equality, a leading New Jersey gay advocacy group, and David S. Buckel, senior counsel at Lambda Legal Defense and Education Fund, said they were aware of more than 20 couples who had obtained civil unions but said they were nonetheless denied rights afforded to married couples. None have yet led to a lawsuit challenging civil unions.

“Hospitals, employers, and other institutions will say, ‘We don’t care what the law says, you are not married,’ ” Mr. Goldstein said. “The word is starting to spread that the civil union law is in fact not working to provide couples with the protection that only the word marriage can.” . . .

Cindy Meneghin and her partner, Maureen Kilian, who live in Butler and were plaintiffs in the Supreme Court case that led to the civil unions, celebrated theirs on Feb. 24.

“It was important that we provide our family with as many protections as we are being allowed by our State Legislature,” Ms. Meneghin said. Still, she called civil unions “the Bermuda Triangle of relationships.”

“You can maybe pass through without any harm, but wait until you disappear,” Ms. Meneghin said. “Your relationship doesn’t have reality to people because you’re not married. It is very hurtful and degrading that we are not really full, equal citizens in our state.”

Think about this. A legal reform that has given gay couples all of the rights and benefits of marriage under state law -- a change that would have been unthinkable a generation or two ago -- is now considered hurtful and degrading by the very people it benefits. Initially seen as a great advance when they began in Vermont in 2000, and embraced by Democratic presidential candidates as a compromise, civil unions are acquiring an unsavory reputation.

What I think this suggests is that for many gay couples the struggle for marriage is not only, or even primarily, a struggle for particular legal benefits. It is a struggle for equal dignity, recognition, legitimacy, and respect under the law. That is something only full marriage can provide because it is a relationship that families, friends, co-workers, and employers readily understand. Marriage has a history and cultural meaning unrivaled by any other status. Academics who have hailed alternative statuses -- civil unions, domestic partnerships, registered partnerships, etc. -- as offering couples a "menu" of choices fail to appreciate that, to lots of gay couples, the only choice that really matters is marriage. To them, everything else on the menu is "bread crumbs." Or to use another metaphor I heard not long ago, civil unions are like a song with all the lyrics but none of the music.


Tuesday, March 20, 2007

Posner on Judicial Salaries:

Posner's views are generally consistent with mine: (1) it's hard to judge the efficiency of government salaries because they are not market-based; (2) there is no reason to believe that, as a rule, federal judges are underpaid; and (3) paying judges the same amount regardless of local cost of living makes little sense.

UPDATE: Whoops, my VC RSS feed doesn't seem to be working, and I didn't notice Ilya's posting on the same topic.

The 30 Minute Seder:

I blogged this last year, but "The 30 Minute Seder" now comes in a new and improved edition. It's an excellent text, I think, for those who want a short Seder service with all the traditional elements of the Seder, but don't want to go through the whole Haggadah (which is full of tangentially relevant rabbinic debates, yet somehow never manages to actually tell the whole story of the Exodus, as the Torah commands). Note: I don't know the author, and have no financial or other interest in this text.

For the more ambitious, I ran a Seder for the first time last year, and found this book very helpful.

Feel free to post Seder suggestions in the comments below.

UPDATE: Professor Donna Robinson Divine emails: If you want to trigger genuine intellectual excitement, you might use A DIFFERENT NIGHT, a family participation Haggadah put together by Noam Zion and David Dishon from the Hartman Institute in Israel.

On the Rabbinic commentary, there are scholars who claim these are really discussions about whether or not to initiate a revolt against Roman rule. It does have some direct bearing on the idea of liberation.

More on Censorship at the University of Leeds:

From Dr. Matthias Kuentzel, whose talk on anti-Semitism in the Muslim world was canceled abruptly, for "security" reasons, courtesy of Scholars for Peace in the Middle East:

No one responsible for the cancellation ever apologized.

The University of Leeds did not and does not treat me like an invited guest speaker, but like someone unwelcome who just makes mischief - quite an unpleasant experience.

Against this background, I was confronted with conflicting information with respect to the two seminars scheduled as follow-up events to my public talk. A press officer told me that only my public talk was cancelled. Faculty members of the German department told me that these seminars were cancelled as well. I finally gave these seminars at a location off the University grounds. Many faculty members and students of the University nevertheless participated. The statement by Roger Gair "The other two events [the seminars] are going ahead as planned" (see Times, March 16) was simply not true.

Roger Gair's statement of March 19 is as inconsistent as his press release of March 15.

1. His comparison of my talk with the talk of an Israeli diplomat is completely misleading, since I am not a diplomat (with all the security requirements that such a status implies) but an academic.

2. He admits that the University in my case "received no threats, and only a handful of complaints". Why then has my "lecture been cancelled on safety grounds … to protect the safety of participants in the event” as his press release says? Why then did Mr. Gair demand that "around twenty people in total" or - in his press release four days earlier - "around 30 people in all" had to be in place just for security reasons?

3. His assertion that the organisers of my talk "did not give us enough notice" to provide for this amount of security staff is misleading, since my talk in Leeds had been scheduled four month earlier and the publicity for it had been out of weeks.

4. It was not my lecture which came to the University's "attention less then 36 hours before it was due to take place" - as his press release asserts - but rather some E-mails by Muslim students who asked the University only on March 13 to "provide a solution … by cancelling the lecture all together" and to "apologize to the Muslim Community as a whole, for suggesting such a topic."

That is why I cannot find the Secretary's claim that my public lecture "was cancelled neither for any reason of censorship nor because of pressure from any interest group" convincing. Instead, there are many indications that the University anticipated potential protests before they ever happened and thus practiced self-censorship.

Related Posts (on one page):

  1. More on Censorship at the University of Leeds:
  2. Hecklers' (Terrorists'?)Veto at University of Leeds?:
Richard Posner On the Flawed Case for a Judicial Pay Increase:

In this recent post on the Becker-Posner blog, Judge Richard Posner points out numerous flaws in the case for increasing judicial salaries put forward by Chief Justice John Roberts and others. Many of his arguments are similar to those I advanced in a series of posts on the same issue earlier this year, and last year (see here, here, and here). Among the most important of Posner's points is his emphasis on the many nonsalary benefits of being a judge that pay increase advocates ignore:

The most serious omission in Chief Justice Roberts's report is the other compensation that judges receive besides their salaries. Most judges who want to can teach a course or a seminar at a law school and receive another $25,000 in pay ....The federal judicial pension is extremely generous--a judge can retire at age 65 with only 15 years of judicial service (or at 70 with 10 years), and receive his full salary for life.... The health benefits are also good. Above all, a judgeship confers very substantial nonpecuniary benefits. The job is less taxing than practicing law, more interesting (though this is partly a matter of taste), and highly prestigious. Judges exercise considerable power, not only over the litigants in the cases before them but also in shaping the law for the future, and power is a highly valued form of compensation for many people.Judges are public figures, even if only locally, to a degree that few even very successful lawyers are. And judges are not at the beck and call of impatient and demanding clients, as even the most successful lawyers are.

I too have emphasized the importance of judges' nonsalary compensation as a way of attracting good people to the job (see here). But it means more coming from a prominent judge such as Posner than from me.

Posner does advocate a cost of living adjustment for judges located in especially expensive areas. Here too, we are in agreement, as I suggested the same thing in a post last year.

I wish I could say this is a case of great minds thinking alike. But, in reality, it's just a case where I happen to have the same views as a great mind (we disagree on many other issues).

Related Posts (on one page):

  1. Posner on Judicial Salaries:
  2. Richard Posner On the Flawed Case for a Judicial Pay Increase:
Oh, No, Not a Constitutional Showdown: According to the AP, President Bush made a statement a few minutes ago in which he apparently threatened a constitutional showdown if Congress turned down his offer to have top aides testify about the U.S. Attorney firings only in private and not under oath. I gather this means that if Congress subpoenaed White House officials, the White House would assert executive privilege and force a lawsuit over whether the subpoena could be enforced.

  I wonder, though, wouldn't Congress be simply delighted to have this become a constitutional showdown? It would keep the issue in the headlines for weeks, and litigation would be likely to narrow the scope of executive privilege rather than expand it. Given that, this seems like a weird warning to make (assuming that the AP is reporting the warning accurately).
The Timing of the Law Review Submission Process: Here's a question both for current law review editors and authors who sent out pieces this spring: Are you finding that law journals are generally trying to make offers more quickly, are offering tighter windows to decide on offers, and/or are prepared to do expedites in a shorter window than before? Is the submission process being compressed into a narrower window of time? I've seen some anecdotal evidence that this is true, and I wanted to find out if others were hearing and experiencing the same thing.

  Here's a little bit of background to explain the question. Unlike most academic journals, student-run law reviews generally permit authors to submit their scholarly articles to many journals at once. When a journal decides to accept a particular paper, the journal typically gives the paper's author a window of time in which to decide whether to accept the offer. It's understood that authors use this window to try to "shop up" the article, requesting an expedited review from more desirable journals (more desirable for whatever reason — higher prestige, a particular school, etc.). Those more desirable journals then give the article a quick read and decide if they want to move quickly and give an offer before the expedite window at the other journal closes.

  This system may sound really odd at first, but it's not a terrible way of dealing with a world in which there are hundreds of journals looking to publish the most desirable articles possible and thousands of authors hoping to be published in the most desirable journal. Requiring exclusive submissions works well in fields with a handful of journals, but it's a lot harder in a field with hundreds of journals. (Can you imagine how many years it might take to run through journals until you finally get your offer from the Delaware State Journal of Labor & Employment Law?) Also, a grand "matching" system would take too much time: It may or may not be easy for authors to rank their preferences of journals, but clearly it would take an impossible amount of time for every journal to rank every submission.

  In contrast, the traditional way law reviews work creates some sort of a market in scholarly works and yet is still relatively manageable. Journals that are the first to make an offer for a piece generally have an advantage in getting it (for a bunch of complicated reasons). On the other hand, authors have some limited assurance that their articles will have a chance to be considered at journals "up the food chain" during the expedite window.

  The change I am sensing over the last few years is that journals seem to be more likely to try to make quick offers, they are giving authors shorter and shorter windows to make their decisions, and at the same time they are developing the capacity to make offers on expedited reviews in a shorter window than before. The result seems to be a compression of the submission process. I wonder, are others hearing of or experiencing the same thing?

  If this is in fact happening, I worry that it is on balance a bad thing for journals. First, I suspect that the perceived advantage to individual journals is mostly illusory: Journals might want to make fast offers and give a very short window to try to limit expedites, but my guess is that other journals are likely to respond by speeding up their expedite processes accordingly. And on a broader level, I'm concerned that journals that decide extremely quickly are likely to focus even more on the proxy of author/school prestige and less on the quality of the article. It's easy to see that an article was by famous Professor X from top School Y; it generally takes a lot more time to get editors to read an article (and perhaps seek opinions from the faculty) in order to consider the article's merits in more depth. On balance, then, tighter windows would seem to make the rich richer; it may be harder for excellent articles by lesser-known authors to break in to top journals. At least that's my concern.

  In any event, I'm curious as to whether authors and editors are experiencing this. (Incidentally, one helpful point of comparison is this chart of expedite window data from 2005 via Kaimi Wenger.)

  UPDATE: To give an idea of the kind of shift I have in mind, let me offer my sense of what kinds of typical experience I think authors had five years ago. Comapring notes with friends and colleagues suggested that it was typical for authors to wait at least 2 weeks before receiving an initial offer; authors were typically given five days or a week to decide; and most journals needed five days or so to do an expedite. My sense is that these periods have shorted considerably at many journals.

  A few discussions offline have suggested a very plausible source of the shift: Electronic submissions. In the old days, it took 2 or 3 days for a submission to arrive by mail, 2 or 3 days to be opened and filed, and then editors needed copies made and distributed for an article to even be considered. To receive expedited review, an article had to have one editors give a pass, and then if she liked the article copies needed to be made and physically distributed. Electronic distribution speeds up the process dramatically; editors can get the article and distribute it instantaneously. That may be the key reason for the shift, which (if I'm right) has happened at the same time as the shift to electronic submissions.
Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:

I was going to write a post about Wilkie v. Robbins, the case currently before the Supreme Court that addresses the important question of whether it is permissible for government agencies to retaliate against citizens for exercising their constitutionally protected property rights. But co-conspirator Jonathan Adler has beaten me to it. I do, however, want to add a point to Jonathan's analysis: The very need to address this issue is a sign of the second class status of property rights.

For most other constitutional rights, there is already well-established Supreme Court precedent holding that it is unconstitutional for the government to punish people for exercising those rights. For example, prosecutors cannot punish defendants for exercising their Fifth Amendment right to remain silent. Government officials are forbidden to harass citizens for exercising their free speech rights or their rights to practice their religion. The actions that the federal Bureau of Land Management officials allegedly took to punish Frank Robbins for refusing to give the BLM an easement over his land would clearly be unconstitutional if used to punish him for exercising virtually any other constitutional right. As R.S. Radford and Tim Sandefur point out:

[BLM] agents ordered Robbins to sign over the easement, and when he refused, they grew belligerent. “The federal government doesn’t negotiate,” one official told him. Instead, they promised that Robbins’ refusal would “come to war” and that they would give him a “hardball education.” Then they began a vendetta against him that would last to the present day.

They cancelled his right of way over government-owned land, repeatedly harassed the guests at his ranch, cited him for minor infractions while letting similar violations by his neighbors go unnoticed, and brought him up on criminal charges of interfering with federal agents during their duties. The jury acquitted him after deliberating for less than 30 minutes.

If the BLM did the same thing to punish Robbins for exercising his First Amendment right to criticize the agency, his Fourth Amendment right to be free of unreasonable searches and seizures by the BLM, or his right to engage in religious practices that the BLM disapproves of, the unconstitutionality of the agency's actions would be unquestionable. Everyone agrees that these rights would be worthless, or at least gravely impaired, if government could punish people for exercising them. The same point applies to citizens' constitutional right to avoid uncompensating takings of their property in violation of the Fifth Amendment.

Note that this issue is separable from the question of the substantive scope of constitutional property rights. Even if you believe that the scope of constitutional property rights should be very narrow, there is still good reason to forbid the government from punishing people for exercising those (admittedly narrow) rights.

UPDATE: I recognize that, as explained in the SCOTUS Blog, there are two other issues in the case unrelated to the one I focus on here. That, however, doesn't undermine my main point.

UPDATE #2: Some commenters are fixated on the specific facts of this case and on the question of whether Robbins behaved badly. However, as with most Supreme Court cases, the important issues are not the specific details of this case, but the broader legal rule that will be established. If the BLM wins on the issue addressed in the post, ALL constitutional property rights will be denied protection from government retaliation, not just those belonging to owners who behave obnoxiously in some way. Moreover, as a procedural matter, the only issue before the Supreme Court is that of whether or not Robbins' case against the BLM should be dismissed on summary judgment (i.e. - without going to trial). At that stage of the proceedings, courts are required to view the facts in the "light most favorable" to the party that is seeking a trial, in this case Robbins. If the true facts are different from what Robbins claims they are, the BLM will have a chance to prove that in a trial. The only question before the Supreme Court is that of whether a trial is unnecessary because the BLM had a legal right to act as it did, even if Robbins' version of the facts is true.

Related Posts (on one page):

  1. Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:
  2. Is Property Protected from Government Retaliation?
Why We Should not Care that Judicial Citations of Law Journal Articles are Decreasing:

This New York Times article by Adam Liptak has kicked of a major debate about the extent to which we should be concerned that judidical opinions are citing law journal articles far less often than 20-30 years ago. My fellow conspirators have already gotten in their licks (see posts linked below). My view is that this is not a problem, for three interrelated reasons.

First, the goal of legal scholarship is not to be cited in judicial opinions, but to add to our stock of knowledge about law and related issues. There are numerous ways in which scholarship can fulfill that function without at the same time being useful to judges looking for material to cite in their opinions. Scholarship in economics is not devalued merely because it is rarely cited by corporate boards justifying their business decisions or by the Secretary of the Treasury in justifying his policy decisions.

Second, as Dale Carpenter and Eugene Volokh point out in their posts, there are many reasons for the reduction in citation that have nothing to do with the quality of the scholarship. Among them are the rise of modern search engines, the increasing ideological gap between a generally left-wing professoriate and a more conservative judiciary. To these, I would add the rise of nondoctrinal scholarship, and the use of methodologies from other disciplines, such as economics and political science. Nondoctrinal scholarship is a generally positive development, since there are many aspects of law that can't be understood simply by reading and analyzing precedent in the traditional way. So too is the use of interdisciplinary methodology, which has added enormously to our knowledge over the last several decades. However, both nondoctrinal scholarship and interdisciplinary scholarship are more difficult for judges to understand and less likely to be immediately relevant to deciding a case than old-style doctrinal analysis. That doesn't mean, however, that the overall social utility of these types of scholarship is less than that of old-style doctrinal argument. Indeed, the new scholarship is in many ways more useful than the old because it provides far more in the way of unique insights that can't just as easily be produced by nonacademics.

Finally, the emphasis on judicial citation is misplaced even if we assume that the main goal of scholarship is to influence the development of the law. By the time people get appointed to the federal bench, they generally have strong ideological commitments and judicial philosophies that are unlikely to change merely because they read a law journal article defending the opposite view. Most citations of law journal articles in judicial opinions do not determine the outcome of the case, but merely provide support for conclusions that the judges want to reach anyway. The way for scholarship to genuinely influence legal trends is not to get cited by judges, but to influence the general stock of ideas available to future judges (and policymakers) in their formative years, before their views become fully developed. And that is precisely what the most effective policy-relevant scholarship does. For example, academic articles on antitrust law rarely get cited in judicial opinions, but the scholarly application of economic analysis to this field has nonetheless revolutionized it by influencing the beliefs of today's policymakers and judges back when they were at earlier stages of their careers. The same is true in most other cases where scholarship has genuinely changed the content of the law, as opposed to merely the content of judges' footnotes.

SFSU Republicans Will Face No Punishment:

The Foundation for Individual Rights in Education responds:

San Francisco State University (SFSU) announced yesterday that its College Republicans will face no punishment for hosting an anti-terrorism rally at which participants stepped on makeshift Hezbollah and Hamas flags. SFSU’s decision comes after months of pressure from the Foundation for Individual Rights in Education (FIRE), national and local media, and the public -- all of which called on the school to uphold the students’ constitutionally guaranteed right to free expression....

SFSU’s [action] began after an October 17, 2006 anti-terrorism rally at which several members of the College Republicans stepped on pieces of paper they had painted to resemble Hamas and Hezbollah flags. Unbeknownst to the protestors, the flags they had copied contained the word “Allah” written in Arabic script. On October 26, a student filed a formal complaint with the university against the College Republicans, alleging “attempts to incite violence and create a hostile environment” and “actions of incivility.” Although university administrators could have settled the matter informally or dismissed the charges outright, the university instead chose to press forward with a hearing on the charges.

FIRE wrote to SFSU President Robert A. Corrigan on January 23, 2007, to stress that no American public institution can lawfully prosecute students for engaging in political protest or for desecrating religious symbols. SFSU replied to FIRE’s letter on January 29 by saying that the university would continue to investigate the complaint. When SFSU scheduled a hearing for March 9, FIRE immediately wrote to President Corrigan again to urge him to call off the hearing. Undeterred by clearly established constitutional jurisprudence, SFSU went forward with the hearing as scheduled. President Corrigan then responded to FIRE on March 13, once again standing by the university’s disciplinary process.

Yesterday afternoon, President Corrigan wrote to FIRE with the welcome news that “the Student Organization Hearing Panel (SOHP) unanimously concluded that the College Republicans organization had not violated the Student Code of Conduct and that there were no grounds to support the student complaint lodged against them.” ...

Glad to hear it, but I agree with FIRE: "The College Republicans should never have been dragged through an investigation and hearing for their protected political expression, and it is an outrage that SFSU carried on with this for so long when it had the power to dismiss the charges informally. We hope that SFSU will make whatever policy changes are necessary to ensure that this does not happen again."

If SFSU responded to an allegation that some group had insulted the President, or opposed the war, or criticized Christianity, by putting them through an extended investigation and a hearing, I take it we'd be quite troubled even if ultimately SFSU exonerated the students. The same should apply if the allegation is that the group trampled on the name of Allah.

Got my paper out the door:

Speaking of new papers, I'm glad to have finally gotten my paper on Privatization and the Law and Economics of Political Advocacy out the door and submitted to law reviews. The paper is available from SSRN, and so is the companion technical paper.

(The companion technical paper is called Privatization, Free-Riding, and Industry-Expanding Lobbying. I definitely encourage you to read the plain-English paper, but I only encourage you to read the technical paper if you want the same idea expressed formally, with math and greek symbols.)

Here's the abstract of the plain-English paper:

A common argument against privatization is that private providers will self-interestedly lobby to increase the size of their market. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating for incarceration.

I conclude that there is at present no particular reason to credit this argument. Even without privatization, government agents already lobby for changes in substantive law — in the prison context, for example, public corrections officer unions are active advocates of pro-incarceration policy. Against this background, adding the “extra voice” of the private sector will not necessarily increase either the amount of industry-increasing advocacy or its effectiveness. In fact, privatization may well reduce the industry's political power: Because advocacy is a “public good” for the industry, as the number of independent actors increases, the largest actor's advocacy decreases (since it no longer captures the full benefit of its advocacy) and the smaller actors free-ride off the largest actor's contribution. Under some plausible assumptions, therefore, privatization may actually decrease advocacy, and under different plausible assumptions, the net effect of privatization on advocacy is ambiguous.

The argument that privatization distorts policy by encouraging lobbying is thus unconvincing without a fuller explanation of the mechanics of advocacy.

And I've finally gotten it down to just under 25,000 words. As a former editor of my mother's once said, shortening only makes it better.

Who is Sovereign? The People or the State? My new and relatively brief (25 pages) essay, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, is now available for download on SSRN. It is the basis of the John E. Sullivan Lecture I will be giving at Capital Law School in Columbus, Ohio on April 13th. In an important respect, the issue of sovereignty is the flip side of that of retained rights. What is remarkable about Chisholm is that an individual conception of popular sovereignty -- as opposed to a conception of popular sovereignty that is limited to democratic self-rule -- was not only alive in 1793, but well enough to support a 4 to 1 decision against the assertion of sovereign immunity by the State of Georgia. Here is the abstract:
Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this essay, I offer several reasons: Constitutional law is taught by doctrine rather than chronologically; law professors have reason to privilege the Marshall Court; and the Court’s individualist view of popular sovereignty is thought to have been repudiated by the adoption of the Eleventh Amendment. I explain why the Eleventh Amendment did not repudiate the view of sovereignty expressed in Chisholm by comparing the wording of the Eleventh with that of the Ninth Amendment, and conclude by suggesting another reason why Chisholm is not in the canon: Law professors follow the lead of the Supreme Court and, like the Ninth Amendment, the Supreme Court has deemed its first great decision too radical in its implications.
The piece will eventually appear in the Virginia Law Review and I have until the end of April to make substantive revisions. I should emphasize that it is merely suggestive and I cannot lengthen it by very much to address all the fundamental questions it raises. In it, I am merely throwing down a marker for my future writings, and eliciting a discourse that will affect how and whether I further develop the idea of individual popular sovereignty.
Is Property Protected from Government Retaliation?

Morse v. Frederick, the "Bong Hits 4 Jesus" case, captured most of the media attention at the Supreme Court yesterday. The other case on the Court's Monday docket, Wilkie v. Robbins, is potentially just as significant. One of the issues in the case is whether the Fifth Amendment protects private property owners against retaliation by government officials for exercising their constitutional right to exclude others from their land. The U.S. Court of Appeals for the Tenth Circuit said yes. The Justice Department says no.

The facts of the case are straightforward: The federal Bureau of Land Management acquired an easement on a ranch, but neglected to record it. Robbins subsequently purchased the ranch and, due to the BLM's mistake, acquired the property sans easement. BLM officials demanded that he sign it over anyway, and when Robbins refused the government officials sought to give him a "hardball education" and retaliated by, among other things, harassing Robbins and his guests, filing trumped up charges against him. After this conduct continued for some time, Robbins had enough and sued the BLM agents involved for damages, and won [the right to pursue his claims in federal court].

R.S. Radford and Tim Sandefur of the Pacific Legal Foundation (an amicus supporting Robbins) write about the importance of the case in the Legal Times:

It’s hard to imagine what else property rights might mean, other than that an owner can refuse the government’s demands without fear of reprisal. The defining characteristic of property is that it insulates us from others — creating a locus of security, privacy, and autonomy. Official retaliation for the assertion of property rights violates their very essence by piercing that shield and striking at the independence that private property protects — thus, in Blackstone’s words, “abridging man’s natural free will.” . . .

. . . To have a right to something means to be free to act without fear of injury or prosecution: to be free to choose for oneself, rather than being coerced. When government intimidates people into acquiescing to its demands, their rights are rendered meaningless.

While there are seven amicus briefs supporting the landowner in this case, mostly from various property rights or resource user groups, the lone brief supporting the government is this one from the National Wildlife Federation. According to NWF, protecting landowners from this sort of action could negatively impact federal land management and environmental protection.

The various briefs are available here. The transcript is here.

UPDATE: While "the facts of the case are straightforward" as I wrote above, the procedural issues are certainly not, and this may prevent the Court from reaching the issue I discuss in this post. For a concise and readable summary of the legal issues, see here.

Related Posts (on one page):

  1. Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:
  2. Is Property Protected from Government Retaliation?
The Persian Version:

Iran's complaints about 300 reminded me of the following. (I literally mean just reminded me; the two kinds of complaint aren't structurally similar, just similar enough that one triggers thoughts of the other.) Thanks to Sasha for first introducing me to this, many years ago.

The Persian Version, by Robert Graves

Truth-loving Persians do not dwell upon
The trivial skirmish fought near Marathon.
As for the Greek theatrical tradition
Which represents that summer's expedition
Not as a mere reconnaisance in force
By three brigades of foot and one of horse
(Their left flank covered by some obsolete
Light craft detached from the main Persian fleet)
But as a grandiose, ill-starred attempt
To conquer Greece -- they treat it with contempt;
And only incidentally refute
Major Greek claims, by stressing what repute
The Persian monarch and the Persian nation
Won by this salutary demonstration:
Despite a strong defence and adverse weather
All arms combined magnificently together.


Monday, March 19, 2007

Both Gonzales and McNulty to Go?: "The Politico" is reporting that the White House has begun seeking a possible successor to Attorney General Alberto Gonzales, and that Deputy AG Paul McNulty is also expected to resign. I don't know if the source is reliable, but I figured it was worth noting (in part because I saw it via a link from Drudge, which means that a few million people saw it, too).
Who Should Pay for Security at Controversial University Events?

Last month, the UCLA Objectivist club, L.O.G.I.C., tried to put on a debate about immigration, between Carl Braun of the Minutemen and Dr. Yaron Brook of the Ayn Rand Institute. As it happens, L.O.G.I.C. and Brook are strongly pro-immigration; nonetheless, the event led to a post on IndyMedia aimed at organizing a protest that "shut . . . down" the debate, on the grounds that "[h]ate speech is not free speech." That in turn led to the event being canceled: According to UCLA,

The security arrangements that were made prior to the event with the support of LOGIC were deemed insufficient due to the significant threat posed against one of the speakers and the large amount of off-campus promotion for what was to be a student sponsored event for the UCLA Community. The costs to adequately secure the venue were estimated to be $10 - $12 thousand and it was highly unlikely at such short notice that our UCPD could provide the adequate security coverage.

UCLA's original position was that L.O.G.I.C. had to pay the $10-12,000 in security costs when the event was rescheduled.

To its credit, UCLA has retreated considerably; Acting Chancellor Norm Abrams (a colleague of mine at the law school) wrote,

The university understands its obligation to bear the reasonable security costs relating to demonstrations that might result in response to controversial speech. It was not appropriate for campus representatives to suggest that the student group would be obligated to pay for additional security needed because of a protest that was anticipated. The students will not, in fact, be charged for additional security associated with anticipated demonstrators when the event is rescheduled and occurs.

Unfortunately, this apparently referred only to the police security costs (which I should note are the great majority of the costs). UCLA will still require the student group to pay for private security guards, chiefly to be present inside — to eject hecklers, to deter hecklers and hooligans, and to make other students feel safe. The guards cost about $20/hour per guard, and for a 1.5-hour debate they'd need to be present for about 3 hours. The required number of guards will turn on the protests' likely magnitude and nature of the protests, which in turn flow from the viewpoint of one of the debaters.

I couldn't get a good estimate of how many guards would likely be needed (that apparently won't be available until the school consults again with the club and with the UC Police Department), but if 20 were required, that would end up costing $1200 or so, not a small amount for a student group. The group would have to get outside funding for that, though it's possible that UCLA student government would defray some of that from funds available to student groups. (I'm told by the UCLA people that historically the government has offered anywhere from a very small amount to a bit above $1000 for events generally. In principle the student government must be viewpoint-neutral in its funding decisions, but I'm not sure how it is in practice, and in any event such a requirement is very hard to enforce in discretionary judgment such as student government funding decisions.) L.O.G.I.C. reports that they have rescheduled the debate for May 1, and that they will be able to fund the security guards; but they will bear a cost, and a cost that stems from the possibility that thugs will try to disrupt the event.

So those are what seem to me to be the facts. Now to my thoughts on how the First Amendment and academic freedom principles play out here.

1. If the event took place in a traditional public forum, such as on a sidewalk or in a park, the government would not be allowed to charge organizers money (or require organizers to spend money) when the amount was based on the expected public reaction to the speech. That's the holding of Forsyth County v. Nationalist Movement (1992), which struck down a permitting scheme that did turn on the likely security costs:

The fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.

Although [the county] agrees that the cost of policing relates to content, it contends that the ordinance is content neutral because it is aimed only at a secondary effect — the cost of maintaining public order. It is clear, however, that, in this case, it cannot be said that the fee's justification "'ha[s] nothing to do with content.'"

The costs to which petitioner refers are those associated with the public's reaction to the speech. Listeners' reaction to speech is not a content-neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.... This Court has held time and again: "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment."

2. Nonetheless, this event would not take place in a traditional public forum, which must remain open for untrammeled public speech. It is to take place in a university building that the university has opened up to student speech. Such a building is a "designated public forum," and while viewpoint-based restrictions are generally impermissible even in a designated public forum, content-based or speaker-based limitations on the forum (e.g., "we'll open this forum only for curriculum-related speech," "we'll open this forum only for student-run groups," or likely "we'll open this forum only for speech that doesn't involve profanity") are permissible.

Would fees or spending requirements based on the likely response to a group's viewpoints be viewpoint-based, and thus unconstitutional even in a designated public forum? Or would they just be content-based limitations on the forum and thus constitutional, since the university doesn't care at all about the debaters' viewpoints as such but only about the possible misconduct that the debaters may arouse among their enemies? I think the answer is that they would be viewpoint-based and therefore impermissible, but the viewpoint-based/viewpoint-neutral distinction is notoriously vague and underdefined in cases such as this one, so the answer is not clear.

3. But it seems to me that regardless of the First Amendment outcome, academic freedom principles should lead the university to pay all the security costs itself. It looks like L.O.G.I.C. will be able to pay for the private security; but many groups might not be able to, and even L.O.G.I.C. might not be able to pay if the expected counterprotest is large enough. Sometimes, the thugs' threatened disruption would get the event shut down, or at least moved off campus to a park.

So the question is: Should the university let the thugs drive debate on important and controversial issues off the university campus? I think the answer is that it should not.

I sympathize with the desire to save money that could be used for other academic purposes. I sympathize with the concern about violence (though I think it's to the university's credit that it will pay the great majority of the costs of deterring and containing the possible violence, rather than blocking the event or requiring student groups to pay for police protection).

Still, it seems to me most important that the university take a stand, even at some cost, in favor of protecting free speech and against those who are threatening to disrupt the speech. If the university doesn't do it, and the thugs win, that will just promote more thuggery in the future. Behavior that gets rewarded gets repeated.

Recall also that, thanks to Chancellor Abrams' sound decision to provide police protection at UC expense, the debate now is over sums that are relatively modest for the university. But the sums are not modest for the groups involved, and may in fact lead to some events' being canceled. If $1000-2000 extra for the relatively rare event that requires a good deal of security is the price to be spent for defending free debate at the university against the goons, that seems to me a price the university should be willing to pay.

Kill That Polar Bear Cub, For the Sake of Animal Welfare:

Der Spiegel reports:

Animal rights activists, as SPIEGEL reported Monday, aren't so enthralled with the polar bear baby [being raised in a Berlin zoo]. They are concerned that Knut, who is being raised by human hand after his mother rejected him, is in danger of losing touch with the bear necessities. Some would like to see him dead.

"Raising him by hand is not appropriate to the species but rather a blatant violation of animal welfare laws," animal rights activist Frank Albrecht told the mass circulation newspaper Bild, whose front page headline Monday read "Will Sweet Knut Be Killed by Injection?"

Berlin Zoo is allowing Knut to be raised in such a way that the bear will have a behavioral disorder for the rest of his life, Albrecht believes. "In actual fact, the zoo needs to kill the bear cub," he adds.

He's not alone. Wolfram Graf-Rudolf, director of the Aachen Zoo, told the newspaper, "I don't consider it appropriate for the species that the little polar bear is being raised on a bottle." The animal will be fixated on his keeper and not be a "real" polar bear, he says. However he feels it is now too late to put Knut out of his supposed misery. "The mistake has been made. One should have had the courage to put him to sleep much earlier."

The story contains some editorializing, and there's always a risk that the people being quoted are being misquoted or quoted out of context. Still, to my knowledge Der Spiegel is a fairly reputable source, so I thought I'd pass this along; and the quote from a zoo director is especially troublesome -- for all I know, Albrecht is some lone extremist, but when a zoo director says it, that's harder to dismiss. What seems like the German original is here, in case you want to read it. Thanks to Robert Bidinotto for the pointer.

How Much Should Legal Scholarship Aspire To Being Cited by Judges?

I love getting cited by judges, and I write most of my articles aiming to be at least potentially useful to judges. But I'd be hesitant to insist that all or even most of my colleagues should take the same view. While legal scholarship should be as clear, as thoughtful, and as useful as possible for its theme, there are many themes that are eminently legitimate despite being not helpful for the decision of actual cases.

Consider one example: legal history. Some legal history may be relevant to legal decisions (for instance, when it elucidates the original meaning of some text, and when the original meaning is relevant to some case). But some may not be, for instance because it deals with history that's too old (for instance, the evolution of English property law), history that's no longer legally relevant (for instance, how law dealt with women's rights in the 19th century), or even constitutional topics where courts don't much focus on original meaning (for instance, courts very rarely look to the original meaning of the Free Speech Clause, probably because so much fairly well-settled precedent has arisen since then that even judges who are sympathetic with originalism tend to be reluctant to return to first principles).

Should we reject, or even deprecate, legal history because it's not relevant enough to courts? Aren't there other ways history can be useful -- even if those are just a better understanding of what happened in the past, how our legal system came to be as it is, and what we might want to avoid in the future (even if it's not up to courts to avoid it)? I suppose one could argue that legal history is a legitimate field, but that it should be published only in history journals, not in law reviews. But why would one want to take that view?

Or consider another example: articles that are aimed at suggesting legislative or regulatory changes. Perfectly legitimate, it seems to me, despite not being aimed at judges. Some of those articles may mix in other disciplines, such as economics. Some may mostly use traditional legal reasoning, which is a mix of moral judgment, intuitive empirical predictions, and analysis of past precedent without much deference to that precedent. But in any event, they are perfectly legitimate attempts at law reform -- just not law reform that you expect the judiciary to accomplish.

Finally, and here I realize I'm moving to more controversial ground, there are articles that are aimed at promoting an academic conversation about why the law is the way it is, what the law should be (even if the changes of legislative or judicial revision to make it that way are slim), how judges and lawyers think about the law, how law is taught, and more. These may be "theoretical," but why shouldn't people who think about law be as free to theorize in ways that they think can help others think about law, just as historians, anthropologists, linguists, and others are free to do so? Why should there be a demand that law be a purely practical discipline, either in the sense of always having an immediate payoff in court decisions or in the sense of always focusing on uncovering specific facts rather than setting up theoretical frameworks that help us understand the facts?

No-one demands that paleontology, theoretical mathematics, or history be immediately relevant. Sometimes even theoretical work in those disciplines has surprising applications (as is the case in law as well), and that's great; but developing new knowledge and ideas for understanding knowledge is, I think, a worthy goal of the academy even if few practical benefits emerge from this.

This having been said, I should acknowledge what should be obvious: We surely ought to criticize legal scholarship that is badly reasoned, badly written, or even not as useful as it could be with some simple changes (e.g., an article that doesn't live up to its potential because it fails to make clear some important implications). We certainly can aspire to practical relevance as well as theoretical interest in our own work, as I generally do. And funders of academic pursuits can consider the practical relevance of an academic field's output, as an aspect of that field's social utility, in deciding how much they should fund that field (though it's not clear to me that citation by courts is the proper metric of social utility).

But we shouldn't, it seems to me, insist that all or even most legal scholarship be aimed at judges, or see certain genres' lack of desire to influence judges as a sign of those genres' inherent flaws. (Oddly, lack of ability to influence judges given the desire to do so may be a sign of a flaw, if the lack of ability stems from the scholars' failure to make their articles as useful as possible given the articles' themes -- though it may also be evidence that the authors are trying a more ambitious form of law reform than judges are prepared to accept, a goal that is not itself unworthy.)

Two more thoughts on the decline of law review citation:

There are two additional factors that might be at work in the decline of federal court citation of law review articles noted in Orin's post earlier today and in the fine article by Adam Liptak in this morning's New York Times.

First, it seems that the ideological and methodological gap between the federal courts and legal academia is larger now than it was in the 1970s and before. Starting in the 1980s, with Reagan appointments, the federal bench has become more conservative in ideology, methodology, and in substantive outcomes. Even with a noticeable surge in libertarians and conservatives among academics and a corresponding rise in their scholarly output in the last two decades, law school faculties and law review scholarship remain overwhelmingly liberal and radical. Judges most often cite law review sources they agree with in order to draw support; less often do they cite law review sources they disagree with in order to refute them.

Second, at least since the failed Bork nomination in 1987, it seems that fewer and fewer legal academics are getting appointed to the federal bench. This may be because legal academics have a long paper trail espousing ideas that may offend one or another constituency to whom Senators are beholden. With fewer legal academics and more practitioners on the bench, it shouldn't be especially surprising that citation to academic journals would decline.

Finally, I can't help highlighting this observation in Liptak's article: "On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen." This is a writer of great discernment.

Bans on Desecrating Confederate Flags:

The Miami Herald reports:

Bob Hurst walked into a Tallahassee art museum this week and saw the symbol of his Southern heritage hanging by a noose.

The art work, which has led to a standoff between descendants of Confederate soldiers and the museum, is a life-size gallows with the Confederate flag dangling from a frayed rope. Created by a black artist from Detroit and titled The Proper Way to Hang a Confederate Flag, the piece has brought an old debate to Florida anew.

Hurst and his compatriots at the Sons of Confederate Veterans want the exhibit taken down, and they've invoked a 1961 Florida law to support them.

"I didn't find it clever. I didn't find it amusing. I found it offensive. I found it tasteless," said Hurst, whose great-great-grandfather led a company for the Confederacy and committed suicide after the South's surrender.

The leaders of the Mary Brogan Museum of Art and Science decided this week they'll put up with the backlash for the sake of freedom of speech and political dialogue....

A 1961 Florida law actually says it is illegal to defile or "cast contempt upon" the Confederate flag.... Georgia, Louisiana, Mississippi and South Carolina — have laws that specifically safeguard the Confederate flag....

Message for Mr. Hurst and his companions: The First Amendment guarantees not just the "freedom of clever or amusing speech," but even the freedom to express views that you or even the majority of your fellow citizens — or the majority of the representatives of those fellow citizens who were allowed to vote in 1961 — find "offensive" and "tasteless."

A question for those who hold that the Constitution doesn't protect flagburning on the grounds that flagburning isn't literally "speech": Would you likewise say that the Constitution doesn't protect displaying the Confederate flag in a noose, on the grounds that that isn't speech? What if a state (or a public university) decided to ban the display of the Confederate flag standing alone, with no nooses at all — would that be constitutionally permissible, too, on the grounds that flying the Confederate flag isn't "speech"? What if it decided to enjoin the display of a painting because it saw it as representing a racist viewpoint — would that too be constitutional, on the grounds that paintings aren't "speech"?

Or would you join the Supreme Court's position, which is that when symbolic expression is banned precisely because of the viewpoint it expresses, it is protected whether it's in words, flags, pictures, symbols (religious or not, e.g., donkey or elephant pins to symbolize the Democratic or Republican party, peace symbols, swastikas, or what have you)? Note that the Court has essentially taken this view ever since 1931; one of the first few cases to strike down a restriction on expressive freedom grounds involved a ban on display of anarchist flags.

(Note that of course expressive conduct may be restricted when this is done for reasons unrelated to its expressive content, for instance if a genuinely evenhanded and evenhandedly applied ban on open fires in high-fire-risk areas were applied to the burning of a flag; but of course such restrictions are generally permissible as to verbal speech, too.)

The Florida statute, Fla. Stat. Ann. § 256.051, provides, "It shall ... be unlawful ... to mutilate, deface, defile, or contemptuously abuse the flag or emblem of Florida or the flag or emblem of the Confederate States by any act whatever," and "Nothing in this section shall be construed to prevent the use of any flag, standard, color, shield, ensign, or other insignia of Florida or of the Confederate States for decorative or patriotic purposes."

Muller's Medals:

Eric Muller is in Germany investigating the life and death of his great-uncle Leo, a victim of the Holocaust. In this moving post, Eric relates his discovery of his great-uncle's WWI medals in a Gestapo file on his uncle in the Bavarian state archive. Eric believes the medals belong to his family. Accordingly, he will be filing a request to get them back today. I wish him luck.

Profile of Bob Levy, Lawyer in DC Gun Ban Case:

Yesterday's Washington Post had an extended profile of Robert A. Levy, the lawyer who brought the challenge to the DC gun ban. There is interesting background here on how the plaintiffs were identified as well as the decision not to accept any outside financing. According to the story, Bob doesn't own a gun.

How Often Should Judges Cite Law Review Articles?: In the New York Times, Adam Liptak has a very interesting article on the apparent decline in citations to law review articles in judicial opinions over the law few decades. You should read the whole thing, but here's an excerpt:
  Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them.
  The upshot is that the legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.
  Patterns at other leading law reviews are similar. And the drop in the number of citations understates the phenomenon, as the courts’ caseload has exploded in the meantime. . . .   "The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable," Professor Dorf said.
  There are other reasons for the diminished influence of law reviews. One is the emergence of electronic databases.
  "Before search engines," said Marci A. Hamilton, a law professor at Cardozo, "if you wanted to figure out what all the cases on a given topic said, you went to a law review." Now you punch some words into Lexis or Westlaw. . . . .
  "If the academy does want to change the world," Judge Reena Raggi said, "it does need to be part of the world."
  To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.
  There's a lot here, but let me offer two quick thoughts. First, I do think the existence of online databases has caused a great deal of the shift in citation practices. It's now much easier to find the law, as Marci Hamilton suggests. Further, many more people have ready access to all of the original sources. Do you need to find an 1850's decision in the New Hampshire reports? An entry in the Federal Register from 1979? No problem, it's all on Westlaw. As a result, it's much more helpful for judges to cite authorities directly rather than law review articles that discuss them.

  Second, it's impossible to say whether it's good or bad that judges are citing articles less often without knowing what articles are being cited (or not) and why. If judges are now less inclined to engage with thoughtful scholarship that deals seriously with legal sources, then that's a shame. On the other hand, very few law review articles fit this bill. I only read a very tiny fraction of the published legal scholarship, but my sense is that a lot of law review scholarship is not terribly serious about engaging with the law. If judges aren't paying any attention to such scholarship, then good for them: they know enough not to be fooled by fancy academic pedigrees and prestigious journals. Silliness in the Harvard Law Review is still silliness, and it's a good thing if judges recognize that.

  Anyway, that's my preliminary take. There's a lot here, so I look forward to reading the comment thread. (Thanks to How Appealing for the link, and to Adam for the shout-out — just as good as a judicial citation in my book.)

Sunday, March 18, 2007

Blawg Review #100:

The one-hundredth edition of Blawg Review is up here.

Sunday Song Lyric: It's Saint Patrick's Day weekend, and if had been in Boston I would have tried to catch one of the Dropkick Murphy's celebrated St. Patty's shows. Given I was home in Hudson, Ohio, making corned beef and cabbage for my wife's family, I figured I'd share some Dropkick Murphy joy with the VC readership.

I won't pretend for a minute that their lyrics are particularly profound, but it's hard not to love this Irish-Celtic-Punk band. As the band explains their mission:

The bands' main goal is to play music that creates an all for one, one for all environment where everyone is encouraged to participate, sing along, and hopefully have a good time. In the true spirit of punk rock we view the band and the audience as one in the same; in other words our stage and our microphone are yours.
One of their (many) fun raucous drinking songs is "The Dirty Glass" off of the album Blackout. Here's a performance of it from the Jimmy Kimmel show, and here's how the lyrics begin:
Murphy, Murphy, darling dear
I long for you now night and day
Your pain was my pleasure, your sorrow my joy
I feel now I've lost you to health and good cheer

Darcy, when I met you I was five years too young
A boy beyond his age, or so I'd tell someone
Anyone who'd listen and a few who couldn't care
Still I welcomed you with open arms, my love I did share

Darcy, Darcy darling dear,
You left me dying, crying there
In whiskey, gin, and pints of beer
I fell for you my darling dear
Those unfamiliar with the Dropkick Murphy's may recognize this song, "I'm Shipping Up to Boston," based on poem by Woody Guthrie and featured on the The Departed soundtrack.