Are Human Rights Watch Officials Just Thin-Skinned? (No!):
In a previous post, I criticized Human Rights Watch Director Ken Roth's characterization of the criticism HRW receives regarding its coverage of Israel. Roth wrote, in an email to Jeffrey Goldberg, "We report on Israel. Its supporters fight back with lies and deception." I've also noted that (at least according to NGO Watch, and to my knowledge), HRW has never officially recanted or apologized for any of the errors or distortions critics have identified in its reporting on Israel.
There are two possible explanations for the above. One is that HRW is implicitly hostile to Israel and its supporters. The other is that Roth and colleagues are just arrogant you-know-whats who don't take criticism well, and would react the same way regardless of the source of the criticism.
It was therefore enlightening for a reader to point me to a prior controversy involving HRW and the Palestinian-Israeli conflict. HRW criticized Palestinian officials for urging civilians to serve as human shields. Anti-Israel commentators, led by rabidly anti-Israel activist Norman Finkelstein, went ballistic.
California's IOUs and their Depression-Era Predecessors
The Wall Street Journal has an excellent background story today (Saturday/Sunday July 25-26, 2009) on the wide variety of scrips and improvised currencies in the Depression years, with a comparison to the IOUs issued over the last three weeks by the state of California. The bottom line of the story is the California IOUs are not really scrip in the Depression-era sense (and the bottom of the post, hidden, looks a little bit at the legal status of the California IOUs) but it is still a fascinating historical read.
During the Great Depression, hundreds of communities as strapped for cash as California is today circulated their own temporary currencies. An estimated $1 billion in this scrip was issued by towns and counties, not to mention corporations, school boards, newspapers and a few wealthy individuals. Most promissory notes looked like paper currency, but scrip was also printed on leather, metal, fish-skin parchment and, in Tenino, Wash., on slabs of two-ply Sitka Spruce. Two towns in California -- Crescent City and Pismo beach -- circulated scrip printed on clamshells .... In Hood River, Ore., Hal's Tire Service printed $1 bills on scraps of old tires, briefly giving the rubber check a good name.
The improvised currencies in the Depression were largely a reaction to the physical scarcity of currency. Bank holidays decreed by the Federal government, the lack of currency on account of unemployment resulting in fewer workers getting paid in currency, the unwillingness of people either to spend or put the money in banks, and other causes all resulted in a physical shortage of currency. (Argentina has recently gone through a round of scarcity of small change particularly; I don’t recall why and am not sure anyone knows.) Various entities, private and public, issued their own - they typically did not last very long but the Journal article, as noted above, goes through the wide range of forms they took, from paper to leather, metal, fishskin parchment, and lots of other things.
The aim of most Depression era scrip was to provide circulating money - and issuers used different theories to ensure circulation. At the one extreme, some places printed up beautiful, money looking notes, on the theory that they looked like money and so would be better regarded. Whereas other places deliberately issued scrip on pieces of wood or other bulky materials on the theory that the stuff was so unwieldy that holders would want to get them in someone else’s hands as quickly as possible.
California’s scrip is different - it has issued, according to the article, some 194,000 IOUs with a face amount of about $1.03 billion, redeemable on October 2, or sooner if the state comes up with the money. I haven’t laid eyes on one, although various of my California resident family have been issued them. The article says that, unlike the Depression era scrip, they are made out to particular individuals for particular amounts - they physically resemble checks, except that instead of saying “pay to the order of” they say “registered warrant.”
The effect of these individualized features is that they are not intended to circulate as currency - in this respect they are not like the Depression-era scrip, which was intended to circulate from person to person:
Since California ran out of cash early this month, it has issued more than 194,000 IOUs, with a total value of $1.03 billion. They are redeemable in U.S. dollars on Oct. 2, or sooner if the state comes up with the money. The legislature on Friday approved a plan to close a $24 billion budget gap, but officials say it could still take a few weeks to analyze the state's cash situation and resume giving creditors checks instead of promises. California IOUs differ from Depression-era scrip in a key respect: They are made out to individual creditors for specific amounts.
If there has been any trading of the warrants in any form of secondary market, I'd be grateful if someone would tell me in the comments. The state's official announcement is here, and here is its official FAQs webpage. The state controller's office says that the warrants will be repaid with interest on October 2 "if there is sufficient cash available"; the interest rate is 3.75% annual. The warrants are "legal negotiable instruments":
A registered warrant is a “promise to pay,” with interest, that is issued by the State when there is not enough cash to meet all of the State’s payment obligations.
If there is sufficient cash available, registered warrants, or IOUs, will be paid by the State Treasurer on October 2, 2009. If the Pooled Money Investment Board (PMIB) determines there is sufficient cash available for redemption at an earlier date, they may be redeemed earlier than October 2, 2009. These IOUs are issued in the place of regular warrants, or checks. The interest rate, set by the PMIB on July 2, 2009, is 3.75% per year ... Registered warrants, or IOUs, are legal negotiable instruments that are paid with interest.
The SEC has taken the view that the warrants are "securities"; they are not required to be registered because they are "municipal securities." Says the SEC:
The staff of the Securities and Exchange Commission has expressed its belief that California’s recently-issued IOUs are “securities” under federal securities law. As such, holders of these IOUs and those who may purchase them are protected by the provisions of the federal securities laws that prohibit fraud in the purchase or sale of securities.
California began issuing the IOUs (called “registered warrants” by California) on July 2 to certain individuals and entities, including citizens who were entitled to a tax refund or vendors who were entitled to payments. The IOUs are obligations of the State of California, are negotiable, and bear interest. The staff’s view that the IOUs are securities does not affect California’s right to issue or repay the IOUs.
In addition to the antifraud provisions of the federal securities laws, other parts of the federal securities laws also apply to the purchase and sale of the IOUs. Persons acting as intermediaries between buyers and sellers of the warrants may need to register as brokers, dealers or municipal securities dealers, or as alternative trading systems or national securities exchanges.
Broker-dealers, as well as any potential secondary markets, should be aware that the requirements of the securities laws and the rules of the Municipal Securities Rulemaking Board apply to the IOUs.
Finally, although the IOUs are labeled “registered warrants,” they are not registered with the SEC. There is no registration requirement that applies because the IOUs are municipal securities.
I am not aware of any comprehensive public legal analysis of their status or regulation, though certainly California legal authorities must have done exactly that in preparing them for issuance (if there is such an analysis out there, i would be grateful to know). There are lots of different kinds of regulatory questions, of course. Questions could include their status as securities; questions of their legal enforcement as obligations of the state of California; the legal ability of the state to issue these warrants in lieu of regular payments; the ability of the warrants to circulate to third parties; whether third parties can be required under some circumstance to accept them for cash (including, for example, the state of California in payment of state taxes or fees); any other securities or banking or lending or other laws under which they might fall; and, at the outer unlikely extreme, their constitutionality as a question of limitations on states issuing their own legal tender (Art. I, Sec. 10) (no, I'm not suggesting any such problem, but any thorough legal analysis would have to consider it).
One of these questions has been answered, besides the securities law matter. On July 7, 2009, the California Franchise Tax Board announced that it will accept the IOUs as a form of payment (I wonder (tongue in cheek) if it should not prudently impose some form of ... discount on its state's own notes). The text of the FTB announcement has its own items of legal interest, from a tax and commercial law standpoint:
The Franchise Tax Board (FTB) announced it accepts California registered warrants (IOUs) as payment of current and past due personal and corporate tax obligations.
To pay a tax liability with an IOU, endorse the IOU on the reverse side with the phrase "Pay to the order of Franchise Tax Board” and your signature then mail it with the tax bill or estimated tax voucher. By law, FTB cannot deposit the IOU until it is payable, but FTB will credit the taxpayer’s account on the date the IOU is received to stop the accrual of interest. If the IOU is not sufficient to pay the outstanding balance, taxpayers should send an additional payment for the difference. Otherwise, the taxpayer will receive a bill reflecting the new balance due.
On October 2, 2009, FTB will redeem the IOUs it has received with the Treasurer. If a taxpayer submits an IOU after October 2, FTB will deposit it and then credit the account with the face value of the warrant plus applicable interest.
Taxpayers wanting to receive the accrued interest from their IOUs must hold them until October 2, 2009, the date IOUs are redeemable.
A registered warrant is a “promise to pay,” with interest, that is issued by the State when there is not enough cash to meet all of the State’s payment obligations. If there is sufficient cash available, registered warrants will be paid by the State Treasurer on October 2, 2009. For more information, see the Treasurer’s website STO Registered Warrant Information or the Controller’s website California State Controller's Office: Frequently Asked Questions about Registered Warrants (IOUs).
I’d be interested to read the internal California state legal opinions on the various issues (if they've been released and publicly posted I'd appreciate knowing). But in any case do think all this would make a great student note or comment. Alternatively, it would make a great article for a practicing lawyer, aiming to give a black letter law exposition of the issues involved - for a business-oriented law review, a bar commentary journal, or one of the short-article format, specialized business law publications that some law schools put out.
(One of my research assistants reminds me that my very own school, Washington College of Law, American University, has a Business Law Brief - a softcover, short form journal that seeks to provide timely, practical, useful commentary on business law issues (ABA Magazine of the Year 2004-5 - this is a serious magazine). It might be interested in a short, knowledgeable, practical, descriptive article on this topic - it circulates very widely to the business law community. If you are a practitioner or professor who might be interested in this kind of piece, you can email the editor-in-chief, David Wiseman, davidbwiseman at gmail and see if you can work out something; tell him KA sent you.)
Other jurisdictions will likely be headed down the same road as California, so the question of the legal regulation of such IOUs is not going to go away.
Bonus question: In what sense does any or all of this suggest that Gresham's Law lives?
More From the City That Brought You the First Amendment:
A few months ago I posted a comment on reports that the City of Philadelphia was disciplining several police officers who had allegedly made racially derogatory comments while driving around town in their squad car (accompanied by a journalism student from Temple, who made the comments public). It struck me then (and strikes me now) as very troubling as a matter of First Amendment law — though I was very surprised to find that most of the VC commenters didn't agree with me on that.
Now comes a related story involving the Domelights.com website, a popular Philly-based discussion website frequented by lots of Philly cops. [Additional commentary can be found here and here] The website operators (and the City of Philadelphia) have been sued by a group of African-American police officers (joined by the NAACP) on the grounds that the website is "infested with racist, white supremacist and anti-African-American content" and creates a "hostile work environment" in violation of federal civil rights laws. [The hostile work environment arises because, according to the suit, "white officers post on and moderate the privately operated site, Domelights.com, both on and off the job [and Domelights' users] often joke about the racially offensive commentary on the site ... or will mention them in front of black police officers," thus creating "a racially hostile work environment."]
Domelights.com has - perhaps only temporarily — shut down as a result of the suit (which is seeking a permanent injunction against operation of the site, and/or against any police officers posting to the site).
There are so many outrageous things about this suit I hardly know where to begin. Put aside the fact that the website is entirely privately operated, without any support or sanction from the City (which should allow the City to obtain dismissal of the claims against it). Put aside the fact that federal law (section 230 of the Communications Decency Act of 1996) provides that "no provider . . . of an interactive computer service [like Domelights.com] shall be treated as the publisher or speaker of any information provided by another information content provider [the site's users]." The notion that a federal court could enjoin the operation of this site because police officers make racially insensitve/offensive comments there (and then other officers joke about those comments on-the-job) is Orwellian — surely this gets our collective First Amendment antennae vibrating, no? I'm no expert on federal civil rights law, but if it permits this suit to go forward it represents another very unfortunate nail in what is becoming a pretty tight coffin for First Amendment values in this country, and I genuinely despair of that.
[Full disclosure: I've been approached by the defendant Domelights.com in regard to this suit, and I am likely to be assisting in the defense, so I won't pretend to objectivity on this score]
Update: Thanks to Eugene V., here's a copy of the Complaint filed in this case
“Academics, like teenagers, sometimes don’t have any sense regarding the degree to which they are conformists.”
So says Thomas Bouchard, the Minnesota psychologist known for his study of twins raised apart, in a retirement interview with Constance Holden in the journal Science.
Journalists, of course, are conformists too. So are most other professions. There’s a powerful human urge to belong inside the group, to think like the majority, to lick the boss’s shoes, and to win the group’s approval by trashing dissenters.
The strength of this urge to conform can silence even those who have good reason to think the majority is wrong. You’re an expert because all your peers recognize you as such. But if you start to get too far out of line with what your peers believe, they will look at you askance and start to withdraw the informal title of “expert” they have implicitly bestowed on you. Then you’ll bear the less comfortable label of “maverick,” which is only a few stops short of “scapegoat” or “pariah.”
The most common mistakes of technique made by appellate oral advocates are born of lack of preparation, lack of attentiveness to the court, and nervousness.
First of all, although the point is obvious, it is safest to address judges as “your Honor,” unless you are entirely confident that you have the judge’s name right. Trying to connect personally is a good idea, but only if you are absolutely sure that you will not mix up the judges. Even in courts that have nameplates in front of the judges’ bench, mistakes can happen. Although not every judge who is called by the wrong name will take umbrage, counsel is likely to realize the blunder, perhaps when one of the members of the panel corrects the misnomer -- and that realization is bound to cause counsel to become distracted, flustered, or embarrassed. If the client is present, this kind of mistake also undermines the client’s confidence in the advocate.
Small physical manifestations of nervousness can appear unprofessional and distract the court from counsel’s argument. Unnecessary gestures, shuffling of papers, and fidgeting at the lectern should be kept to a minimum. Hands should be kept at counsel’s side or on the lectern. This will help create an appearance of earnestness and attentiveness. Crossing one’s arms or cocking one’s body to the side, by contrast, risks conveying a sense of combativeness. Rehearsals with video will help counsel to avoid these mistakes.
Counsel should tab reference material so as to avoid long delays while looking for page references. It is acceptable to pause for a sip of water, if you experience dry mouth, but do so carefully, lest the sip produce coughing, sputtering, or spraying. There is a technique that some experienced oral advocates use to prevent dry mouth and to avoid (or minimize) the need to quaff water -- which can have its own complications. Instead of depending on water, use hard candy (like Lifesavers) that stimulate moistness in the mouth. It is possible to pop a hard candy into your mouth discreetly while waiting to be called to counsel table and even while sitting there. Be sure, however, to swallow the candy before being called to the lectern.
Poor oratorical form is another common blunder, one that takes many shapes. Some speakers, desperate to make a point, resort to hyperbole, invective, or overstatement of fact or law -- all of which may result in a loss of credibility with the judges. Others read brilliant passages from their brief, but never engage the judges’ recurring -- and outcome-determinative -- questions. The late Chief Justice Rehnquist famously noted four “species” of poor advocates: the “lector,” who reads the argument; the “debating champion,” who knows the case and its theory very well but does not listen carefully to questions and carefully answer them; “Casey Jones,” who knows the case but races ahead, not bothering to “pick up passengers along the way”; and the “spellbinder,” who substitutes rhetoric for careful analysis.
Finally, too many lawyers lose sight of their role as advocates before appellate judges. The forum is an appellate court, not a trial court. Arguments should not be pitched as if the judges were jurors: eschew emotional rhetoric in favor of intellectual debate. Judges are especially likely to take offense, or tune out, if they feel you are giving what is in essence a jury argument.
One important point of which many advocates lose sight is that the judges will have spent far less time than you studying your case. Accordingly, you should not assume that they are versed in every subtle nuance and factual wrinkle. You should listen to their comments carefully with an ear to whether they have lost track of what you are saying, which can occur when you assume familiarity with factual or legal details that the judges may not in fact possess.
Along similar lines, keep in mind that appellate judges are ordinarily generalists who may lack detailed knowledge of specialized areas of the law. This is a particular risk for counsel who practice regularly in a highly specialized area such as tax, securities, or ERISA, to name just a few. Take care to avoid jargon or the use of technical terms or acronyms that may be everyday fare for specialists in the area but a mystery to those not steeped in them. A related pitfall involves technically complex subjects such as computer technology and scientific or engineering details that may underlie the testimony of expert witnesses. Your presentation should be attuned to the panel’s level of comprehension, and you should supply any necessary exposition if the judges do not appear to be following the point. If the subject matter of the case involves any of these risks, remain sensitive to the danger of losing your audience.
Finally, counsel should remember to display the proper respect for the court, the trial judge, and opposing counsel. Judges especially dislike ad hominem attacks directed against the trial judge or opposing counsel. You may think that the trial judge is a hopeless bumbler or was far from impartial, or at least behaved that way in ruling against your client. But the members of the panel may have lunch with that judicial colleague every day, or belong to the same golf club. Insulting a friend provokes a defensive reaction, which is the last thing you want to do.
A similar caveat applies to the temptation to attack opposing counsel by accusing your opponent of “misleading the court” or “misrepresenting the record.” Judges do not like incivility. They do not like to see lawsuits turn into a personal battle between the lawyers instead of a controversy between their clients. And they do not want to be forced to choose sides by deciding which lawyer is being more candid and forthcoming in advocating the client’s cause. Stay on the high road, no matter how tempting it may be to strike a hard blow.
While the debate with the bench may be vigorous, it should always be respectful, as an alienated judge will almost certainly not be open to persuasion regarding the correctness of your position.
[T]he father [petitioned] for modification of the final [custody] judgment, requesting primary residential custody of their [15-year-old] son.... [T]he trial court based its ruling on evidence that the father was more likely to ensure the child was engaged in productive, normal, and healthy extracurricular activities, and the child would benefit from a greater male influence in his life. The trial court concluded that the child's development was "disturbingly retarded." It went on to find that the child possessed unreasonable fears for his age, and had "unmanlike" toilet
[Footnote: The child would sit to urinate and was self-conscious about urinating in the
woods during excursions with the father.]
The court of appeals reversed, concluding that "the father failed to satisfy the extraordinary burden of showing a substantial and material change [in circumstances since the initial custody decision]." And the court seemed to dismiss the "toilet behavior" matter by saying, "The child simply did not conform to either the father's or trial court's perception of manliness."
A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on
indictment to a fine not exceeding £25,000.
(2) For the purposes of this section, a person publishes or utters blasphemous matter if --
(a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and
(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.
(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.
(4) In this section “religion” does not include an organisation or cult --
(a) the principal object of which is the making of profit, or
(b) that employs oppressive psychological manipulation --
(i) of its followers, or
(ii) for the purpose of gaining new followers.
Now I oppose this law, for the obvious reasons, which I won't repeat here. The Irish Constitution does expressly calls for the punishment of blasphemy -- "The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law" -- so the absence of a blasphemy law until now (an earlier law was struck down for not defining "blasphemy") has itself been unconstitutional. But it seems to me that Irish legislators should have tried to amend the constitution via referendum rather than enacting this sort of ban.
But here I'd like to say a bit about some slightly less obvious problems with the law. To its credit, the legislature tried to minimize the risk that (say) the Satanic Verses, the Last Temptation of Christ, the Mohammed cartoons, and other such speech would become criminal. True, a court might well find that (1) the speech "is grossly abusive or insulting in relation to matters held sacred by any religion," and (2) the speech intentionally caused "outrage among a substantial number of the adherents of that religion." But presumably this danger might be mitigated by the defendant's ability to get off the hook if he shows that "a reasonable person would find genuine literary, artistic, political, scientific, or academic value" in the speech.
Yet it seems to me that a court decision saying that the Mohammed cartoons or the Satanic Verses can't be punished because it has "genuine literary, artistic, [or] political ... value" would cause even more insult and social tension than the original speech itself would. At least without the blasphemy law, the government can say the speech is protected no matter how awful it might be. But with the blasphemy law, a government body must either find the speech unprotected -- or place its imprimatur behind the view that the "reasonable person would find genuine ... value" in it.
Likewise, another defense requires courts to decide which religions "employ oppressive psychological manipulation" "of [their] followers." Is threatening eternal damnation oppressive psychological manipulation, for instance? How about urging women to conceal themselves behind veils? I agree, of course, that religions should have the right to engage in such behavior, regardless of whether the government views it as "oppressive psychological manipulation" -- but if the law sets up "oppressive psychological manipulation" as a legal standard for determining which religions' adherents are protected from "blasphem[y]," then courts would have to apply that standard. Is religious tolerance and amity really advanced by official court decisions (and presumably jury decisions) about whether a religion practices "oppressive psychological manipulation"?
"Anchoring or focalism is a term used in psychology to describe the common human tendency to rely too heavily, or 'anchor,' on one trait or piece of information when making decisions." A big chunk of today's Biegas v. Quickway Carriers (6th Cir.) seems to me about anchoring effects, though it doesn't discuss the issue in those terms.
Dailey was driving his truck. Biegas was on the side of the road, and got run over. The judge concluded on partial summary judgment that, as a matter of law, Biegas was more negligent than Dailey. (This is important because state law “bars non-economic damages in motor-vehicle-injury cases when a plaintiff is more than fifty percent at fault.”) The judge then instructed the jury that “in ‘prior proceedings’ it had ‘already been determined that Begas ... is more than 50 percent at fault’ and that the jury’s job was ‘to determine how much fault from more than 50 percent to 100 percent can be attributed to the negligence of Begas, and how much fault from zero percent to 50 percent can be attributed to the negligence of Dailey.’”
The jury concluded that Dailey is 47% negligent and Begas is 53% negligent. On appeal, the Sixth Circuit concluded that the trial judge was wrong to hold that Begas was necessarily more negligent than Dailey. This left the question: Was this error harmless, because the jury concluded that Begas was indeed 53% negligent?
The majority said that the error was not harmless (paragraph breaks added):
We believe, however, that a properly instructed jury could have weighed the evidence of negligence by Biegas and Dailey differently and allocated fifty percent or less of the fault to Biegas. Although it is impossible to know what effect the erroneous instructions had on the jury’s allocation of fault, we think it likely that the instructions affected the jury’s entire analytical framework as it weighed and compared the evidence of negligent conduct by Biegas and Dailey.
Having been instructed by the district court that "prior proceedings" had determined Biegas to be more at fault than Dailey, the jury may well have given greater weight to the evidence of Biegas’s negligent conduct and less weight to that of Dailey. The erroneous instruction may have given the jury the impression that the district court had doubts about the strength of the Estate’s evidence or that the district court had some other undisclosed reason for tipping the comparative fault scale against Biegas from the start.
A properly instructed jury, told nothing about the relative fault of the parties and free to assess Biegas’s fault on a scale of 0% to 100% rather than 51% to 100%, could have weighed the evidence differently, splitting the fault equally or even allocating less of the relative fault to Biegas. Because the erroneous jury instructions could have affected the result of the jury’s deliberations, we conclude that the error affected the Estate’s substantial rights and was not harmless. Accordingly, a new trial is required so that the Estate may present its case to a properly instructed jury.
The dissent disagreed:
If the jury had found that Biegas’ degree of fault was 51 percent, I would agree that the error in giving the limiting instruction was not harmless. For in that situation the jury’s verdict could have equally well rested on either of two inconsistent theories. It could have reflected the jury’s independent judgment that Biegas was in fact 51 percent responsible for the accident. Or it could have reflected the jury’s conclusion that although it believed Biegas’ fault was less than 51 percent, the court’s instruction required it to set his fault at that level. In the latter situation, it could not be said that without the limiting instructions the jury likely would have concluded that Biegas’ level of fault was less than 51 percent.
In the present case, however, the jury’s verdict that Biegas’ fault was 53 percent necessarily reflected the jury’s independent determination that his fault exceeded the 51 percent minimum it was required to apply. In that circumstance, I cannot say that there was any realistic likelihood that, without the limiting percent instruction, the jury would have assessed Biegas’ fault level at less than 51 percent. The court’s contrary conclusion — resting upon statements that the jury "could have" weighed the evidence of comparative negligence differently, "may well have" or "could have" evaluated the evidence differently — is speculation and is insufficient to justify the conclusion that any error in the instruction was prejudicial.
We cannot say precisely what the jury would have done without the limiting instruction. We deal, however, with possibility, probability, and likelihood, not certainty. In the circumstances here I think the likelihood that without the limiting instruction the jury could or would have set Biegas’ fault at less than 51 percent is too slim to warrant concluding that the erroneous limiting instruction was not harmless.
I think the majority is right, but in any case it strikes me like a very interesting discussion.
Here is the Massachusetts statute under which Gates was arrested, Mass. G. L. ch. 272, s. 53:
Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.
Here is a recent gloss by a Massachusetts court (adopting Model Penal Code s. 250.2(a)):
A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior.... ‘Public’ means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
Massachusetts courts have rejected MPC s. 250.2(b) as a violation of free speech rights. So this provision is not part of Massachusetts law:
(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present.
And here are some squibs:
Arrest under Massachusetts “idle and disorderly person” statute was unlawful under Massachusetts law, where defendant was arrested for yelling, screaming, swearing and generally causing a disturbance but, though the yelling was undoubtedly loud enough to attract the attention of other guests in hotel, it did not rise to level of “riotous commotion” or “public nuisance.” U.S. v. Pasqualino, D.Mass.1991, 768 F.Supp. 13.
Defendant who did not physically resist his arrest arising out of a domestic violence incident could not be convicted of disorderly conduct based solely on his loud and angry tirade, which included profanities, directed at police officers as he was being escorted to police cruiser, even if spectators gathered to watch defendant; defendant did not make any threats or engage in violence, and his speech did not constitute fighting words. Com. v. Mallahan (2008) 72 Mass.App.Ct. 1103, 889 N.E.2d 77, 2008 WL 2404550.
Defendant's conduct, namely, flailing his arms and shouting at police, victim of recent assault, or both, after being told to leave area by police, did not amount to “violent or tumultuous behavior” within scope of disorderly conduct statute, absent any claim that defendant's protestations constituted threat of violence, or any evidence that defendant's flailing arms were anything but physical manifestation of his agitation or that noise and commotion caused by defendant's behavior was extreme. Com. v. Lopiano (2004) 805 N.E.2d 522, 60 Mass.App.Ct. 723.
Here is more from that case:
[Officer] Garrett asked the defendant to exit the vehicle. As the defendant was getting out of the car, he “kept saying no problem here, no problem here, everything is all set, no problem.” The police advised the defendant that he would be summonsed to court for assault and battery, that he was not to be arrested at Carins's [the alleged victim] request, and that he had to leave the motel parking lot. He began to walk away. [Officer] O’Connor testified: “He took a few steps from me, ten steps, turned around, began flailing his arms, yelling that I was violating his civil rights.” He was advised a second time to leave, and the defendant was “yelling at me, you're violating my civil rights, then he began yelling at Ms. Carins, why are you doing this to me, you'll never go through with this.” At that time, he was placed under arrest. It is not disputed that only the defendant's conduct after he left the car forms the basis of the disorderly conduct charge.
I am no expert on the Supreme Court, or confirmation hearings, or any related stuff, so I haven't posted about the Sotomayor hearings. But I have learned a lot about the process, including many sensible policy recommendations, in a short, very well-written book by Benjamin Wittes, Confirmation Wars. it came about a couple of years ago but it has been updated and re-released with reference to the Sotomayor nomination. It is plain spoken and sensible, as with everything Wittes writes (he was for almost a decade responsible for writing most of the unsigned editorials on law and justice at the Washington Post), and the book is deliberately short. Full disclosure: he is a friend, my editor on my targeted killing chapter in his book on counterterrorism, and a fellow member of the Hoover Task Force on National Security and Law. Although ordinarily all those connections should cause you to disconnect discount my recommendation by about 98%, I would still say you should treat this book as ... Highly Recommended.
Because the greatest value of oral argument is the chance to learn what the judges find important about a case and to respond to their concerns, treating judges’ questions as bullets to be dodged is self-defeating. Questions from the bench are an opportunity to assuage a judge’s concerns at the very moment that they seem most pressing to the judge.
Accordingly, questions should be welcomed and answered, not resented or evaded. Moreover, it is considerably more likely that you will retain the judge’s attention when answering his or her question than when giving your prepared remarks. And when a question is asked during your adversary’s argument, you will again have an especially attentive audience when you refer to and comment upon the implications of the judge’s question and the adversary’s response.
Although the temptation to postpone answering a question may be strong, especially if the question relates to a subject the advocate plans to reach later in the argument, the temptation should be resisted at all costs. Never, never say: “I shall be addressing that issue later in the argument.” In the heat of argument, a belated response to a deferred question often escapes notice, or is addressed only after the judge who initially asked it has already tuned you out. In addition, further questioning may use up your time, so that you never have a chance to reach the answer to the question at the stage you would have preferred to confront it.
The time when a judge asks a question represents what educators call the “teaching moment.” Since you are there to connect with the judges who will decide your client’s fate, do not squander the teaching moment. It may be permissible to give a brief but responsive answer and then to add that you plan to address that issue at greater length later. Counsel is, however, generally better served to reorder the oral argument, if necessary, and to accelerate the full discussion of the point once a judge’s question manifests current interest in it. Moreover, counsel are likely to find themselves subject to judicial admonition for not responding promptly and directly to questions they are asked. [Footnote: One anecdote from a Supreme Court argument, perhaps apocryphal, concerns a prominent advocate who was asked by Justice O’Connor during the course of his argument how he distinguished a certain case. He first responded that it was covered in the brief, but Justice O’Connor persisted. He then demurred on the ground that the explanation would be complicated and time-consuming, to which Justice O’Connor retorted: “You’re here, we’re here, why don’t we just go ahead and discuss it?” At this point, the advocate was compelled to admit that he was unfamiliar with the case.]
One possible exception to this advice, however, arises when counsel is in the midst of answering another judge’s questions; in that case, counsel should seek to answer both sets of questions as expeditiously as feasible. In this vein, a question that appears to call for a yes-or-no answer should, if at all possible, be given such an answer, following which the advocate is free to elaborate, qualify, or explain.
At the same time, if the question involves a peripheral point, counsel need not spend more time on it than a candid and responsive answer requires. Counsel then should segue back to his or her main points. All too often, novice advocates who have taken perhaps too much to heart the importance of the judges’ questions finish an answer and then stare inquiringly at the judge, as if waiting for a nod of approval. This silence often encourages further questions, sometimes of little relevance. Counsel would be best served by switching quickly and smoothly back into the argument after responding to a question. An effective technique to signal closure is to turn or direct one’s gaze slightly away from the questioning judge and toward the rest of the panel.
If counsel does not know the answer to a question about the record or about a legal point that has not been briefed, it is appropriate to offer to submit a supplemental memorandum within a short period after argument -- a few days or a week, for example. In the case of a new legal point that is potentially adverse to your position, it is legitimate to point out that your adversary has not raised the point. On the other hand, one cannot propose supplemental briefing in response to tough questions on issues that have been briefed. In such a case, you will just have to do your best -- which you should be ready to do if you have prepared adequately. At all events, you should view hard questions as an opportunity to deal with what the court may see as the crux of the case.
If a question is unclear, counsel should ask for clarification. This must be done carefully. Judges do not like to be questioned -- that is their role. Therefore, it may seem impertinent to respond: “Are you asking whether ...?” One graceful way to deal with an unclear question is to preface your answer with a diffident: “If your Honor is asking whether ..., then ....” This invites the judge to clarify the question, if the premise of your answer is mistaken, without directly querying the judge.
Often, when asked to clarify a question, a judge will link it to other issues in the case, potentially allowing counsel to return to a point on his or her outline. At all times, credibility is crucial to the court’s confidence in counsel’s argument. If you do not know the answer to a question with a reasonable degree of confidence, never bluff. Admit that you do not know. But be appropriately apologetic: “I am sorry, your Honor, I do not know the answer to that question.” The excuse, “But, your honor, I didn’t try the case,” will not be well received.
You can take some sting out of the concession, if you can smoothly shift ground into an area where you are more confident. For example, if asked about some testimony that does not seem familiar, admit that you are not aware whether there is anything in the record on that point, but then immediately turn to something relevant that you can invoke to support your position on the pertinent issue.
If a judge asks about a case that does not ring a bell, admit it. This may be an instance in which you have no choice but to ask the judge for some help in identifying the reference. Once again, the response should be candid but respectful. Something like this may work: “I am sorry, your Honor, but that reference does not bring anything to mind. Perhaps if I had a bit more information about the case, I could respond to your Honor’s question.” While it is awkward to forget or not know about something that is germane to the issues on appeal -- or that the judge thinks may be germane -- it is far worse to get caught bluffing. That will totally destroy your credibility with the court. As Judge Selya has noted: “Credibility is the advocate’s stock [in] trade.” Indeed, often it is the advocate’s most powerful asset. Better to suffer the slight embarrassment of admitting that you do not know an answer -- and to offer to submit a supplemental memorandum addressing the point the next day -- than to risk getting caught faking it.
Just as hard questions should be seen as an opportunity to reassure the court that your position is really sound, requests for concessions should be approached with caution. Courts have been known to use concessions against an advocate in deciding a case. Whether it is wise to concede a point will, of course, depend on the circumstances. Counsel may have no choice but to concede unfavorable facts, but with careful preparation you should be able to proffer a convincing explanation of why they are not lethal to the position being espoused.
When legal concessions are solicited, however, counsel should think hard about the implications before agreeing. Does the proposed concession go to the heart of your case, or does it instead seek to test the logical limits of your position? If the former, you cannot concede the point. If the latter, it may be tactically advantageous to reassure the judge that you can prevail without your proposed rule producing the kind of untoward results implicit in the question. Anticipating questions of this sort is one constructive consequence of using formal or informal moot courts in preparing for argument. It is much better to have thought about such questions before you walk into the appellate courtroom and to be prepared with your answers than to try to figure out a response while standing at the lectern.
In any event, you should be prepared to stand your ground where you must, even if it involves disagreeing with the judge’s assumptions or premises, and you should never concede a point just because a judge is pushing for a concession. Even if the inquiring judge is disdainful of your efforts to avoid a damaging concession, remember that there are other judges on the panel who may take a different view of the matter.
If the bench is a hot one, the questions may come without pause. Answer each question directly, then try to weave your affirmative arguments in as further explanation. Needless to say, you should endeavor to make your most important points during the course of the argument even if bombarded with questions. At the same time, the purpose of the argument is more about getting the judges’ questions answered than about providing a forum for the advocate’s speeches. You should not worry unduly if there is neither time nor opportunity to cover valuable points that you planned to make; the reality is that this is almost inevitable in any complex or substantial case. Moreover, if the undiscussed points are important, they will almost surely have been covered in the briefs.
There are endless types of questions judges might ask. The following are some of the major forms, as well as examples and the occasional strategy for answering them:
(1) Pure factual questions: “Does the record show how far the witness was from the place where the collision occurred?” To these questions, counsel should give concise, straightforward answers and move on, if the question involves only a minor or peripheral point. But if the question invites focus on a crucial fact, the significance of that fact should be stressed in the answer. Make a judgment whether the question provides the “teaching moment” for driving home a major theme of your case, even if it comes at a point in your argument earlier than you had anticipated. If so, expand upon the answer and explain why it is important to the ultimate resolution of the case. If, unfortunately, you do not know or cannot recall the correct information, consider whether the answer may be important enough to turn to co-counsel at counsel table to see whether one of them can supply the answer.
(2) Threshold jurisdictional and waiver questions: These are questions such as: “Do you have a final judgment as to all parties and issues?” “Is your appeal timely?” “Is there diversity of citizenship?” “Why isn’t the case moot?” “Does the plaintiff have standing?” “What is our standard of review?” “Where was the issue raised below?” “Did you make the necessary pretrial motions or offer a curative instruction?” These are all questions that counsel must be prepared to answer, even if one’s opponent has not raised them in the briefs. The oral argument is the last place that you wish to discover a potential defect in your case that you have not considered how to address. Questions like this must be taken seriously, because they may reflect a desire on the part of at least the questioning judge to try to duck the main substantive issues on the appeal. Your answer will depend, of course, on whether you are appellant or appellee and whether you would be happy to have the court sidestep an issue or whether you need to get it decided in order to prevail in the case.
(3) Hypothetical questions: These question are tricky, and they are often the most important questions the advocate will receive. Counsel should not reflexively respond, as too many lawyers do: “That is not this case.” Most judges find such a response intensely irritating and an insult to their intelligence; they are perfectly aware that the question is not the precise one presented by the case. That is why they preface it with “if” or something like it. Instead, you should try to respond with a “yes” or “no” and then explain why the hypothetical demonstrates the soundness of your position or why, although the hypothetical might lead to a different result, the factual differences in the premises of the hypothetical are key to the difference in outcome. Generally, hypothetical questions are designed to test the principles underlying one’s argument. Counsel should avoid a radical argument that overextends the principle in a manner the judges are likely to find absurd or unacceptable. Where the hypothetical raises the possibility of a distasteful result, you should also explain why adopting the principle you are propounding would not compel the court also to reach an untoward result suggested by the hypothetical.
(4) Tennis-match questions: These are questions in which one judge is trying to counter or influence another judge, and counsel is simply the foil. An appellate oral argument is not merely a conversation between judges and the advocate, but also one among the judges themselves. Often, the judges will not have had occasion to discuss the case among themselves before the argument. Those judges with strong feelings about the proper outcome will often use their questions to attempt to persuade fellow judges. But from the standpoint of arguing counsel, these questions simply call for giving the best possible response. Where they are friendly, they should be seized upon as a means of advancing the advocate’s argument. Where they are implacably hostile, counsel should not become flustered but should keep in mind that the other judges hearing the case do not necessarily share the questioning judge’s viewpoint. And remember, you cannot participate in the conference at which your case will be discussed and voted on, so this is your best opportunity to be a party to the judges’ interchanges with one another.
(5) Attack questions: “Didn’t we hold in Smith v. Jones that ...?” Although these questions may present an uphill battle, they offer an important opportunity for counsel to explain why seemingly adverse precedent, or another dangerous point lurking in the question, is not controlling. These questions should not come as a complete surprise to the well-prepared advocate who has studied the briefs and applicable case law from the point of view of a skeptical judge. Chief Justice Roberts has recommended that counsel admit when his or her case is a complicated or hard one in order to attract sympathy from the bench, as insisting implausibly that the case is a “no-brainer” merely invites judges to find holes in your argument. Even though the question may be propounded in a forceful manner, counsel should respond in a calm and reasoned fashion and should not be bullied into making potentially fatal concessions. Counsel should also bear in mind that a hostile question does not necessarily signify a hostile questioner. Some of the toughest questions come from judges who are persuaded by your argument but need certain remaining questions answered in order to write what they wish to be an effective opinion.
(6) Socratic questions: These are questions that are actually intended to draw out from counsel the key points that the judge believes counsel wants to make. They may reflect the judge’s understanding of your position and a desire to see the arguments laid out in the sequence and at the time the judge believes is most intelligible. They may reflect a desire to have you move on quickly through your points, because the questioner knows where you are going. Try not to misinterpret these questions as an attack and respond defensively. Instead, grasp the questions appreciatively and provide prompt and reassuring answers.
(7) Softballs: These are questions in which the judge is characterizing your argument or your opponent’s argument or asking about something in the record or something held in another case. The purpose of this type of question is to help you underscore a favorable point. A surprising number of advocates, however, misinterpret softball questions as hostile, suspecting that the judge is cleverly laying a trap. Instead of appreciating the question and running with the answer it invites, too many lawyers respond defensively. This frustrates the questioning judge and forfeits a golden opportunity to drive home your point. Instead, you should embrace the question and seize upon it to delve into the argument. But if the question, though perhaps proffered with a seeming intent to be helpful, leads to conclusions you are not prepared to defend, you should not take the bait. Doing so is likely to produce a barrage of skeptical questions from the other judges. Best simply to correct the mistake politely and move on.
(8) Humorous questions: Sometimes judges like to get puckish with their questions, suggesting some silly comparison or jovial anecdote. Counsel should enjoy these quips, but should neither get distracted nor attempt to respond in kind, as such attempts usually fall flat. If the judges want to be light-hearted, let them, even if it appears that they are doing so at your expense. Stay on message and preserve a tone of respectful and serious professional gravitas.
(9) Irrelevant questions: In many oral arguments, a judge will ask a question that may seem totally beside the point. These questions are perplexing and may prompt you to scratch your head, figuratively, in confusion and perhaps mild anxiety. You will wonder whether the judge sees something that you missed or instead simply misunderstands the case. You should provide a short, respectful response and return to the affirmative argument. If the point is in fact relevant in a manner that counsel has failed to grasp, the judges will probably be quick to provide enlightenment.
(10) Repetitious (fly-paper) questions: Sometimes a judge will doggedly pursue a point, even after you have attempted several times to provide your best response, and you have nothing further to offer. The judge simply will not let go. If, after several attempts to explain, the judge will not get off the issue, as a last resort, counsel can try “I am sorry, your Honor, but I have given the best answer I have, which I hope the court will find satisfactory.”
(11) Stumpers: If you have no idea what the judge is asking about, or if you do not know the answer to the question, use one of the techniques discussed above for handling such questions, trying to tease out the judge’s thrust without directly questioning the judge.
(12) Questions as to the nature of further proceedings: These are the “what if” questions that ask the advocate about how the court should dispose of the case. “If the court disagrees with the result below, should it reverse outright or remand?” “Should an evidentiary hearing be held?” “Should the remand be to the same or a different judge?” “Is the proper remedy judgment for the prevailing party or a new trial?” “Should any retrial be limited to damages?” “Should an issue be certified to the state court?” “Should decision be held until the Supreme Court decides another case?” “Should sanctions be imposed on counsel?” Counsel should have anticipated any of these questions, like the threshold questions discussed above, as part of a proper preparation for the argument. The key here is knowing what remedy you want the appeals court to provide.
Taking the view that you usually can't get a good grade without doing the reading, I voted "F", and wrote: "Perhaps he should learn what's in the House bill before unleashing his political machine to demand that people support it. The bill would break many of his campaign promises, including the promise to protect people who want to keep their current insurance."
The second question asked: "Grade congressional Republicans' effectiveness so far this year as the "loyal opposition." The Left gave a grade of "D", while the Right supplied a "C-." This is close enough to make "D+" into a trans-ideological consensus.
I was outside the consensus, however, and gave the Republicans a B: "They have done a reasonably good job at staying united. Their best move was making Obama and the Dems own the 'stimulus,' so the fact that the economy is not responding as 'stimulus' backers promised ends up hurting the bill's Democratic advocates. More generally, though, the Republicans are benefiting from over-reaching by Pelosi et al, particularly on the climate tax bill."
The latest Jonathan Rauch column. I've long found Jonathan's work to be very insightful -- and while I'm not knowledgeable enough about politics to evaluate this column independently, my layman's sense is that he is quite right.
Famous Federal Judges Who Never Sat on the Supreme Court:
A friend of mine asked me who were some famous federal judges who never sat on the Supreme Court. Learned Hand came to mind first. Are there others? I suggested Henry Friendly and John Minor Wisdom as possibilities, but even those I wasn't confident of. Any others?
I am not including state judges who were famous but never sat on the United States Supreme Court (Roger Traynor, Thomas Cooley).
For Ben and Anna Bernanke, excitement was jointly doing the New York Times Crossword puzzle nearly every day — although they skipped the easier beginning-of-the-week puzzles. "That's the one thing we do together," Bernanke joked. "It's shows our sexy social life. We're pretty good. We can do the Sunday puzzle in about forty minutes."
This is so far the most entertaining and most readable book on the financial crisis. The portraits of Bernanke, Paulson, and Geithner are especially memorable. Most of all this book brings those key personalities to life. It's also a useful chronicle of the sequence of events which led to the Fed taking on so many new powers. Recommended.
The Dangers of Politicized Campaigns For and Against Nominees to the United States Supreme Court
The central thrust of my arguments and analysis to this point has been that the U.S. Supreme Court enjoys a broad and deep reservoir of goodwill that allows it to get it decisions – even controversial and unpopular ones – to stick. That has probably not been true of the Court throughout American history, and it is certainly not true of high courts throughout the world (since I live in Africa right now, the ruling of the high court in Niger is an interesting example of judicial impotence).
But is there anything at all that might undermine the legitimacy of the Supreme Court? Greg Caldeira and I believe we have found an instance in which the actions of interest groups are threatening to the Court’s legitimacy. This has to do with politicized processes of confirming nominees to the Court.
The country has witnessed politicized nominations in the past. The vote on Judge Samuel Alito’s ascension to the High Bench was one of the most divided in recent history. And in 2008, Justice Clarence Thomas reignited old passions with the publication of his memoirs and with the repetition of his famous characterization of the Senate proceedings as “a high-tech lynching for uppity blacks who in any way deign to think for themselves.” While I of course recognize that, at some level, every nomination to the Court is politicized given the stakes involved in controlling the ideological path of the Supreme Court, some nominations mobilize interest groups and the mass public while others do not.
A newly published book identifies some important threats associated with politicized confirmation processes. In Citizens, Courts, and Confirmations, Caldeira and I provide one of the first examinations ever of how confirmations processes shape the views of ordinary citizens.
Based on a nationally representative survey conducted prior to the nomination of Judge Samuel Alito to a seat on the high court, during the confirmation process, and well after the process ended, this analysis examines how citizens’ views of the U.S. Supreme Court were affected by the battle over whether Alito should be confirmed to a seat on the Court.
The most important conclusion of that work is that politicized confirmation processes can indeed damage the institution itself. That is, our study shows that the legitimacy of the Supreme Court was diminished over the course of the confirmation process. In this conclusion, we are not referring to attitudes toward Alito himself, but rather to attitudes toward the fundamental legitimacy of the Court itself.
The culprit seems to have been the advertisements run by interest groups, both for and against Alito’s confirmation. Groups were certainly active in this battle, spending more than three million dollars in trying to shape the views of the American people (and, by extension, the votes of the representatives of those people).
And our survey data indicate that people were indeed attentive to the ads run, for or against, with something close to two-thirds of the American people reporting being exposed to advertisements regarding whether Alito ought to be confirmed.
Most important, the willingness to extend legitimacy to the Supreme Court among those exposed to the ads declined from prior to the nomination to afterwards. Our surveys indicate that most Americans supported the nomination of Samuel Alito to the Supreme Court; but Americans who viewed the ads associated with his nomination came to have less faith in the Court itself.
Many of the ads run for and against Alito’s confirmation were decidedly political, the ads differ little from attack ads used in ordinary political campaigns. After seeing these ads, it would not be surprising that many Americans concluded that the Supreme Court is just another political institution, and as such, is not deserving of any special deference or respect. When the Supreme Court loses its special status as a “non-political” political institution in the eyes of ordinary people, the institution is weakened.
Any loss in the legitimacy of an institution like the Supreme Court is extremely significant, inasmuch as legitimacy is the principal political capital of courts. So if the legitimacy of the institution is diminished, then the efficacy of the institution is at risk.
We have some understanding of the process that likely lead to these results. The Supreme Court profits greatly when citizens view it as being “above politics,” because “politics,” in the contemporary American case is not a highly regarded vocation. When the Court is seen as different from other political institutions, engaging in principled, not self interested and strategic decision making, legitimacy attaches to the institution.
As I have argued, the lesson that judges are not “just politicians in robes” is taught via the highly accessible symbols of the legal process. When citizens pay attention to the Supreme Court, they are bombarded with these symbols of judicial uniqueness, and, as a consequence, judges are exempted from the disdain directed toward most ordinary politicians. So, if politicized nomination processes unteach the view that courts are different, institutional legitimacy suffers.
In its rulings on the regulation of campaign activities, the Supreme Court itself has stripped governments of most legal means by which the free speech rights of interest groups might be restrained, and perhaps that is appropriate. After all, the Supreme Court is an enormously important policy-making institution – not just a court that decides legal disputes between parties – so in a democratic society all interests ought to enjoy maximal opportunity to determine who will be making legal policy. A democracy could hardly do otherwise.
But perhaps groups themselves might understand that campaigns portraying the Supreme Court as just another political institution damage the authority of that institution. Because this is so, perhaps interested parties could exercise some restraint in their arguments, pro and con, regarding nominees to the high bench. I do not have any data on the effectiveness of politicized campaigns, although our survey reveals that the efforts of progressive groups to block Alito’s confirmation by painting him as excessively conservative clearly failed.
I understand that calling for restraint is likely to be just as effective as calling on ordinary politicians to eschew negative attack ads, which, presumably, are used because they are thought to be effective. But given the evidence of an impact on popular esteem for the Court, groups and their supporters should exercise restraint in how they fight battles over nominations.
This is not to say that groups should not try to convince the American people of the wisdom or folly of confirming a nominee to the Supreme Court. Americans understand what it means to be a judicial liberal or a judicial conservative, and debate on these ideological differences do not necessarily undermine judicial legitimacy. The American people accept that judges are policy makers, and must, perforce, rely upon their own ideological predilections in making their decisions.
Honest and open debate over issues of privacy, of liberty, or equality, or of security is not off-putting to the American people and therefore does not undermine judicial legitimacy. People disagree over the direction of legal policy, and those disagreements are appropriate and legitimate. Those differences, however, can be debated in terms more appropriate to a legal institution like the U.S. Supreme Court.
Putting ideology aside for a moment, all interests profit from a high court that can definitively decide very difficult issues of law and politics. To have the Supreme Court decide who would become president of the U.S. in 2000 likely had more beneficial consequences than having the House of Representatives select the president. The Supreme Court is a political institution but that does not mean that it is political in exactly the same sense as is Congress or the presidency. Undermining the Court’s authority is in the interest of no one.
My own research on state judicial elections has clearly demonstrated that discussions of legal issues by aspirants to a seat on a court do nothing to undermine the perceived impartiality of judges and the legitimacy of courts. The American people want to know the ideological positions of candidates for the state and federal bench on issues such as abortion, gun control, affirmative action, prayer, takings, etc., and few believe that judges who announce their positions on these issues cannot rule fairly and impartially from the bench.
At the end of the day, whether ordinary people extend legitimacy to courts rides on whether their expectations are met. Stealth candidates in an age in which courts are so obviously policy-making institutions seem to violate the expectations of most.
So discourse and debate on ideology are indeed possible without doing damage to the judiciary. Just as on this blog, there are comments that are reasoned, based on quite legitimate differences in views, and comments that are puerile and not worthy of replies. When it comes to courts and judges, we all profit from debate that is strong, but civil and respectful of legitimate ideological differences.
President Obama has a remarkable opportunity to remake the federal appellate bench. As I explained in this article, in a single term President Obama could nominate almost as many circuit judges as President Bush did in two. Indeed, President Obama could have a greater effect on the circuit courts than on the Supreme Court. Yet to accomplish this, the President has to actually make some nominations.
This seems like a substantial missed opportunity -- at least thus far. By comparison, President Bush made eleven appellate nominations in May 2001, and several more shortly thereafter. Admittedly, the folks who vet potential judicial nominees have had other things to do, but the Bush folks were also preparing for a potential Supreme Court nomination early in their term (albeit one that did not materialize). I'm not complaining -- as a general matter, I'm more favorably inclined toward Bush's nominees than those President Obama is likely to put forward -- but it is interesting to observe that the Obama Administration could be missing an opportunity to put its stamp on federal appellate courts. Perhaps this is a consequence of trying to do so much, so fast. With the stimulus, health care, cap-and-trade, and everything else, who has time for judges?
University of Montana Law Professor Rob Natelson (who is also a Senior Fellow at the Independence Institute) and I discuss the original meanings of the "privileges and immunities" clause in this 46 minute podcast. Natelson is the author of a recent article in the Georgia Law Review on the topic.
Please note that we are talking about the provision in Article IV of the Constitution's main text: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." We are not talking about the Privileges OR Immunities clause of the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
Former ACORN employees in Pennsylvania are facing prosecution for violating a state law barring solicitation for voter registration. ACORN is responding with a suit challenging the law's constitutionality. The NYT reports:
Acorn hopes the lawsuit will prevent criminal prosecution of its local leaders and office, which have been under investigation by Mr. Zappala’s office for eight months, said Witold Walczak, legal director for the American Civil Liberties Union of Pennsylvania, which is representing Acorn.
“They already charged the employees, and they’ve hinted they might go after Acorn next,” said Mr. Walczak, who believes this is the first time such a law has been challenged in federal court.
“It’s the A.C.L.U.’s reading of this,” he said, “that these kind of laws that restrict an organization’s ability to hire and pay canvassers impacts on voter registration activities, which are constitutionally protected actions.”
In May, seven people — five of whom Acorn said were former employees it had fired — were charged in Allegheny County with a variety of counts related to voter registration fraud, including “solicitation of registration,” the state law being challenged in the Acorn suit.
That law makes it a crime to “give, solicit or accept payment or financial incentive to obtain a voter registration if the payment or incentive is based upon the number of registrations or applications obtained.”
This could make for an interesting case, and could have wide implications. Quite a few states have similar laws.
The Times also reports on allegations imposed quotas on its registration canvassers.
Brian Mellor, senior counsel for Project Vote, an advocacy group assisting in Acorn’s defense in Pennsylvania, said there were at least nine other states with similar laws: Colorado, Florida, Georgia, Indiana, Maryland, Missouri, Ohio, Washington and Wisconsin.
Several of the defendants told investigators that Acorn had imposed a quota on them, whereby they would be fired if they did not reach a set goal of about 20 new voter registrations per six-hour shift, for which they were paid $8 an hour.
But an Acorn official said the organization never had a quota. It had “performance standards,” said the official, Maryellen Hayden, head organizer for Acorn of Western Pennsylvania.
“We wouldn’t fire people if they didn’t reach those standards,” Ms. Hayden said. “We told people, ‘If you want to be the best voter registration worker, 20 to 25 cards is the standard.’ ”
The Pennsylvania law needs to be struck down, Ms. Hayden said, because “the way this law has been applied would mean that any big organization that does paid voter registration drives could be subject to charges at any time.”
“That creates a fear that could impede our First Amendment rights,” she said.
A year ago I blogged about the legal order that could force the eviction of the seals that had taken over the at the Scripps "children's pool" in La Jolla, California. This past Monday, a local judge ordered the eviction to proceed, but the San Diego city attorney is going to court to try and have the order overturned, relying in part on a newly enacted state law. The AP reports:
The announcement by City Attorney Jan Goldsmith was the latest development in an emotional and yearslong battle over who should have exclusive use of the protected cove — children or seals — in the posh seaside neighborhood of La Jolla.
On Monday, a San Diego Superior Court judge ordered the city to begin chasing away the creatures from the cove, called the Children's Pool, by Thursday or face heavy fines in order to comply with a 2005 ruling in a lawsuit brought by a disgruntled swimmer.
The city said it would blast recordings of barking dogs to scare away the pesky pinnipeds at the cost of $688,000 a year. San Diego cannot use force because the seals are a federally protected marine species.
But just hours later, Gov. Arnold Schwarzenegger signed a bill that added a marine mammal park to the list of permissible uses for the Children's Pool — giving the city a legal tool that could allow the seals to stay put. . . .
Attorney Paul Kennerson, who represents the disgruntled swimmer, said Senate Bill 428 does not absolve the city of its responsibility to maintain the cove exclusively for the use of children.
Thursday's hearing is scheduled just 90 minutes before the city's deadline to begin chasing the seals away.
Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court?
A lawyer says yes. [UPDATE: Here's his letter.] The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they're filed in court doesn't waive any copyright. Lexis and Westlaw's distribution of the briefs is thus presumptively copyright infrigngement.
The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there's no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It's also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn't open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.
Thanks to Kevin Gerson of the UCLA Law Library for the pointer.
UPDATE: A reader suggests, "I should think that the minute they are filed they become public information; accessible to all." That something becomes publicly available doesn't strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. So the fact that they are descriptively accessible to the public, at least if the public is willing to go to court or to read the briefs on PACER, doesn't resolve the copyright infringement question.
Now if the claim is that the minute they are filed, they ought to become available for copying by anyone, including by commercial services, that's a perfectly defensible claim. It's just that there's no existing copyright law doctrine that clearly embodies such a rule. (There is a statutory provision that says works of the federal government are free of copyright, which includes federal court opinions; and there is longstanding caselaw that says state court opinions are free of copyright. But there is no such doctrine as to briefs filed in court.)
One would therefore have to argue, as I mentioned above, that the fair use doctrine should be interpreted as basically embodying such a rule. It's just that the doctrine is vague enough that we can't be clear that courts will indeed interpret it this way.
UPDATE: Thanks to Erika Wayne for the pointer to the letter.
Defendant Robert A. Delsman, Jr. ... runs a "blog" in which he has strongly criticized the business practices of Sedgwick [Claims Management Services, Inc.] and its management. In addition, Defendant has mailed postcards styled as "WANTED" posters bearing the photographs of two of Sedgwick's executives, again with critical commentary. Sedgwick ... alleges that Defendant engaged in copyright infringement by using the two photos. In addition, Sedgwick alleges various state law causes of action, including defamation, based on the content expressed in the blogs....
Sedgwick provides insurance claim management services to its customers and their employees. The Company is an Illinois corporation and has its principal place of business in Memphis, Tennessee. David North is the Company's Chief Executive Officer and Paul Posey is its Chief Operating Officer. Sedgwick's clientele includes a number of recognizable companies, including General Electric. GE hired Sedgwick to manage and administer claims for its Long-Term Disability Income Plan, which is offered through Met-Life, Inc. ("Met-Life/GE Plan").
Defendant was previously employed by GE and purchased insurance under the Met Life/GE Plan. In or about February 2006, he submitted a claim for disability benefits. The status of his claim is not specified in the pleadings. However, Defendant, who claims he is disabled and has been unable to work for the last three years, apparently is highly dissatisfied with Sedgwick's handling of his claim. As a means of expressing his opinions regarding Sedgwick and its management, Defendant began (on an unspecified date) to publicly express his views through a web blog and a postcard mailing campaign called "Operation Going Postcard."
Defendant's blog is maintained at various URLs, i.e., www.Sedgwickcms.blogspot.com,www.gesupplydiscrimination.com and http:// gesupplyrexeldiscrimination.com. In these blogs, Defendant allegedly posted a number of "defamatory" statements in which he accuses Sedgwick of, inter alia, wrongfully denying benefits to claimants, violating various laws, and accusing Sedgwick and its "minions" (whom he calls "Sedgthugs") of having committed "Sedgcrimes." In addition, Sedgwick complains that Defendant used two copyrighted photographs, headshots of CEO North and COO Posey, and superimposed them on fugitive-style "WANTED" postcards. He also is alleged to have "morphed" the same two photos into pictures of Adolph Hitler and Heinrich Himler, respectively, and to have sent them to unspecified Sedgwick employees. Defendant allegedly obtained North's photo from a worker's compensation conference website, and Posey's photo from a Company press release announcing his elevation to COO.
In February 2009, Defendant launched Operating Going Postcard, which he described in his blogs as a campaign to "educate the consuming public" regarding the business practices of Sedgwick. According to Defendant, such negative publicity was a "good way to fight back against these despicable characters...." On February 9, 2009, Defendant sent one such postcard to CEO North. One side of the postcard incorporates North's picture into a "WANTED" poster which is captioned: "WANTED FOR HUMAN RIGHTS VIOLATIONS." To the right of the photo, the text reads: "Have you been threatened by this man or his minions? The time for change is at hand!" On the other side of the postcard, the following copy appears .... [Details omitted, but available in the opinion. -EV] ...
Sedgwick argues that the issue of fair use cannot be decided on a motion to dismiss, and that it should be allowed to conduct "further discovery." However, the Ninth Circuit has held that a defendant's "assertion of fair use may be considered on a motion to dismiss, which requires the court to consider all allegations to be true, in a manner substantially similar to consideration of the same issue on a motion for summary judgment, when no material facts are in dispute."
The first fair use factor addresses "whether the new work merely 'supercedes the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message, in other words, whether and to what extent the new work is 'transformative.'" Among the various forms of "transformative use" is parody, which is a "'literary or artistic work that imitates the characteristic style of an author or a work for comic effort or ridicule, ...'" ...
Sedgwick argues that there can be no fair use [as to the unaltered photos on the postcards] where, as here, Defendant did not alter the photographs of North and Posey.... [But] the salient inquiry is whether the use of the photos, in the specific context used, was transformative.... "[M]aking an exact copy of a work may be transformative so long as the copy serves a different function than the original work[.]"
Here, there can be no legitimate dispute that Defendant's use of North and Posey's photographs was transformative. Both images originally were used by Defendant for promotional reasons. Defendant, however, used the photographs as a vehicle for criticizing the Company. Specifically, both photographs are superimposed on postcards that mimic "WANTED" posters. Above each picture is the heading, in a large font, which states: "WANTED FOR HUMAN RIGHTS VIOLATIONS." The copy accompanying the photographs criticizes Sedgwick and its management's alleged mistreatment of claimants and questionable practices, and urges the public to report any misdeeds to the U.S. Department of Justice and state Attorney Generals. When viewed in context, it is clear that Defendant used North and Posey's photographs for a fundamentally different purpose than they were originally intended by transforming them into a vehicle for publicizing and criticizing Sedgwick's alleged business practices. In view of the above, the Court finds that the first fair use factor weighs strongly in favor of fair use.
[Footnote: Given the transformative nature of Defendant's use of the photographs, the matter of whether the use was commercial is less significant. Nevertheless, the Court notes that there is no claim that Defendant used the photographs for commercial gain. Rather, all of the facts presented indicate that the photographs were used as part of Defendant's overall endeavor to educate, publicize and warn the public about Sedgwick. The lack of commercialism also weighs in favor of fair use.]
2. Second Factor--Nature of Plaintiff's Work ... Neither party makes any argument regarding this factor. The Court therefore considers the second factor to be neutral.
3. Third Factor--Amount of the Work Used.... [T]he reuse of an entire image may be reasonable if it serves the defendant's intended purpose.... [T]he Court concludes that this factor is neutral.
4. Fourth Factor--Effect of the Use on the Potential Market
The fourth and final statutory factor is "the effect of the use upon the potential market for or value of the copyrighted work." ... [Sedgwick] argues that "the fourth factor weighs in [its] favor because Delsman's alteration, public display of altered photographs and public distribution of the same have injured Sedgwick's potential ability to continue to use the photos of its CEO and CFO (sic) for future marketing purposes." However, the relevant question is not whether the work itself has lost value, but rather, whether the secondary use has usurped the commercial demand for the original. Here, there is no such demand, since there is no commercial market for them. And even if there were, Defendant's use of the photographs is sufficiently transformative that it would not be a "substitute" for the original.
Moreover, the possibility that Defendant's use of the photographs has undermined Sedgwick's ability to use them in the future is not remediable under the Copyright Act. As the Supreme Court explained ..., "when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act." The Court finds that the fourth fair use factor favors Defendant.
Taking all of Sedgwick's allegations as true, the Court finds that two of the fair use factors weigh strongly in favor of Defendant and two are neutral. Defendant's uses of the photographs of North and Posey are highly transformative and serve an entirely different function than originally intended. It was reasonable for Defendant to use the entire photograph in order to evoke the image of a "WANTED" poster. His use could not have had impacted the market for the photographs because no such market is alleged to have existed. But even if it did, Defendant's use was sufficiently transformative that it could not be deemed to be a substitute for the original. Allowing Defendant to use the photographs in the context of publicly criticizing and warning the public regarding Sedgwick's business practices is precisely the type of activity the fair use doctrine is intended to protect.
The fair use analysis strikes me as quite right. As to the state law claims, the court concluded that "Sedgwick fails to adduce any evidence to meet its burden of showing a probability of prevailing on any of its claims. Rather, Sedgwick simply recites the elements of each of its state law causes of action and cites to various allegations of the Amended Complaint." It therefore ruled for Delsman on those as well.
By the way, Delsman, who is apparently not a lawyer, represented himself -- something that rarely leads to victory, but did so this time.
No, I don't want "St. Petersburg, Florida" and the like, or even "Colorado City, Arizona." I'm looking for cities that have exactly the same name as the common name of an American state (and are located outside that state).
Two respected scientific journals today reported that Chinese researchers have created baby mice out of induced pluripotent stem cells ("iPSCs"), an advance that raises difficult ethical questions and could reignite the culture-war battles over stem cell research that have subsided over the last two years.
Many conservatives oppose human embryonic stem cell (hESC) research, and President George W. Bush severely limited its funding, because the five-day old embryos (called blastocysts) that are used are living organisms and, if implanted into a uterus, could mature into people. Although President Obama lifted the Bush funding restrictions, the NIH released new guidelines that are still solicitous of the discomfort many Americans feel about using blastocysts for medical research: the Obama administration will fund such research only if the blastocysts used are "extras" created in in vitro fertilization clinics and would otherwise be destroyed anyway. Want to create a blastocyst in a test tube in order to produce stem cells? Don't look for federal funding, even from a Democratic administration.
The new federal regulations have provoked relatively little media attention, in part because most scientists have believed for the last year or two that hESCs are a transitional technology about to be overtaken by a newer one. In late 2007, scientists succeeded in reprogrammed ordinary adult skin cells (and other types of adult cells) into cells that seem to behave, for all practical purposes, like hESC cells. Scientists still aren't sure that these new iPSCs will behave exactly the same as hESCs for purposes of medical research, but the available evidence looks good, and iPSCs have a number of advantages over hESCs. They are much easier to produce than hESCs, and unlike hESCs, iPSCs offer the potential of allowing scientists to one day use a patient's own cells as the basis for creating a stem cell treatment that would not create problems of immune system rejection. And, of course, iPSCs do not come from embryos that could develop into a person, so iPSC research has met with widespread approval by conservatives who oppose hESC research.
But what now? If an iPSC can develop into a baby, just as a blastocyst can, why is it any less troubling to use iPSCs for medical research than it is to use hESCs? One possible response is that iPSCs can't become people without human intervention, but the same can be said of the blastocysts created in test tubes that are used for hESC research, which need to be placed in a womb. A difference between iPSCs and blastocysts is that the latter have a new, unique genome, whereas the former have the same genome as their donor. But we don't think identical twins are any less morally valuable because they lack a unique genome, and we wouldn't think that a cloned person was not a person, just because she had the same genome as her genetic donor.
My view is that today's development underscores the logical problem with treating blastocysts as if they have the same moral worth as a person. If it seems implausible that we should treat every skin cell as if it were a person, this is because the foundation of personhood is not a human genome plus potential. There must be something more, whether it be a neuronal structure, sentience, consciousness, the ability to imagine a future, etc. But for the unconvinced — and especially those whose religious or ideological commitments make them opposed to any research using blastocysts — opposition to iPSC research might be the only internally consistent position to take.
I'm writing up a pretty detailed discussion of tort law policy arguments for my forthcoming Torts class. In particular, I want to stress to students that they shouldn't just look at the classic compensation and deterrence arguments, but also consider how a proposed legal rule might affect defendants', prospective defendants', and others' liberty, privacy, and the like. A legal rule imposing strict liability on skydiving companies, for instance, might diminish poorer customers' freedom to choose to skydive. Perhaps the intrusion on freedom is justified, but it has to be recognized, and considered in analyzing the merits of the proposed rule.
But I think there's another category of such effects beyond just "liberty" and "privacy," which I've tentatively labeled "consumer supremacy" -- but that's not a great label, and I'm looking for a better one (hence the post). Here's an example, drawn from an article by Prof. Andrew McClurg.
In the article, Prof. McClurg points to a case in which the plaintiffs were faulting the gun manufacturer Lorcin for "negligently failing to take reasonable precautions to minimize the risk of handguns being sold to those likely to misuse them"; and one such precaution, suggested by one Patrick McGuire, was to distribute the following alert to Lorcin dealers:
Important Notice to All Firearms Retailers ...
Your firm, as a gun retailer, plays an all important role in making certain that weapons such as the Lorcin .380 are kept out of the hands of criminals. You are in a key position to help prevent criminal misuse of this weapon. Here are some things you can do.
1. Make certain, through a training program, that all sales personnel are completely familiar with federal and local regulations and procedures regarding gun purchaser applications and registrations.
2. Instruct your sales personnel to be especially alert to, and wary of, gun buyers who display certain behavioral characteristics such as:
(a) Buyers who appear in unkempt clothing and have a slovenly appearance.
(b) Buyers who appear nervous, agitated, distracted or hurried in their purchase.
(c) Buyers who appear evasive, hesitant in responding to questions, stand off from the sales counter and who resist eye contact with the sales person.
(d) Purchasers who appear vague and uncertain in response to routine questions about why they are purchasing the weapon, how they intend to use the gun, where it will be stored, suggestions for safe use, and similar topics.
(e) Buyers who are belligerent or aggressive in response to routine questions about where they live, how they came to select your store, and similar questions.
(f) Those buyers who purchase large quantities of ammunition with their first gun purchase.
(g) Buyers who present an altered or expired drivers license or other out of date or invalid documents.
Challenging Suspect Gun Buyers
Retail sales personnel should be trained and encouraged to politely but candidly question suspect gun buyers, such as those exhibiting the above characteristics, about the truthfulness of the applicants' answers to questions on the ATF application form. Experience shows that many persons who misstate personal information, such as prior felony convictions, psychiatric history and treatment, etc., will -- if challenged and confronted -- often admit that their applications contain false information. For example, a sales clerk, reviewing an application that may contain false data, may properly ask:
"You realize that federal agents do check the accuracy of information on these applications. If they find any of it to be incorrect, you can be fined and imprisoned. Is there anything, anything at all, that you would like to change on this application? Or, would you like to hold this application for a while, and think about it, before filing it and purchasing this gun?"
Challenged in the above way many -- while certainly not all -- unqualified gun buyers will either admit to a false statement that disqualifies them as a gun buyer or will give up their attempt to make a gun purchase.
Lorcin Engineering can assist you in training retail sales personnel to screen out potential gun misusers. There is no perfect system to prevent guns from falling into the hands of criminals and other dangerous persons. But as a gun dealer you can be of significant assistance to law enforcement agencies, and to your community, by staying alert to these telltale signs....
My sense is that there's something troubling in the legal system's requiring distributors, on pain of legal liability, to screen people for wearing "unkempt clothing" or having "a slovenly appearance," or for being "distracted or hurried," or "resist[ing] eye contact," or being "belligerent or aggressive in response to" probing about their addresses or motivations. Of course, a store owner is generally entitled to impose such policies on its own. (I set aside for now the serious risk that implementing such policies might lead to race, sex, etc. discrimination lawsuits; that's not what I'm getting at here.) But those policies strike me as undermining a certain expectation of something -- again, consumer supremacy is the best term I've come up with -- that American consumers have.
We assume that we can generally go into a store in whatever mood and dress we might be in, and still buy the product we want. That's not always so, for instance if the store is partly selling a pleasant atmosphere for its customers (which is why we might accept a dress code for a fancy restaurant but be annoyed by a dress code at Walmart). And at some point unjustified rudeness to the store owners can lead them to rightly kick us out. But we don't expect to be judged for dress or attitude by the people from whom we're buying consumer goods. Again, those people have a legal right to do it, and some might exercise this right; still, one thing we value as consumers is that most stores recognize this sort of consumer supremacy. If the legal system requires stores to shift away from this model, that's a cost that needs to be taken into account.
So my questions: (1) Is there a good name for this sort of consumer interest -- not quite liberty and not quite privacy? (2) Is there anything else that's useful to say about the nature of this interest, or how much it should be weighed?
I'm not looking for a general discussion of gun manufacturer liability. In fact, what's interesting to me about such consumer supremacy concerns is that they would apply to similar arguments as to any form of negligent distribution or negligent entrustment. (Imagine, for instance, a legal liability rule that would require car rental companies to closely investigate buyers who seem unkempt or nervous, on the grounds that they might be smugglers or just reckless drivers, or a legal liability rule that would require bar owners not just to card patrons but to closely investigate those who seem to be acting uncomfortable or who are wearing clothing supposedly associated with under-21-year-olds.) I'm also not claiming that consumer supremacy must trump all other concerns; perhaps some restraints on it are permissible. I just want a good term for this concern, and any insights you folks might pass along about it.
Notes: (1) I realize that the proposal literally seemed to focus only on requiring Lorcin to suggest such policies to dealers, rather on requiring Lorcin to mandate such policies, but the logic of the proposal suggests that if failing to recommend such policies is negligent, failing to demand them would be negligent, too. (2) I realize that the liberty/property/whatever-it's-called concerns could be fit within the compensation and deterrence boxes, if one tries creatively enough, but I want to give students a broader checklist that will lead them to policy arguments that they might otherwise miss; and the policy arguments I have in mind aren't what one normally thinks of when one hears "compensation" and "deterrence." (3) I realize the particular claim that Prof. McClurg points to has now likely been preempted by federal statute; my question isn't about that.
The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators.
That's the paper I presented at the recent annual conference of the Research Committee on Sociology of Law, in Onati, Spain. It is now available on SSRN. Along with co-authors Paul Gallant & Joanne D. Eisen, I will be revising for law review submission soon. In the meantime, comments are welcome.
For those of you who prefer to read in French or Castellano (as they say in Spain), there is an 8-page summary in French, and the abstract is reprinted in Spanish; both appear at the end of the document. In English, the Abstract says:
"Advocates of the proposed United Nations Arms Trade Treaty (ATT) promise that it will prevent the flow of arms to human rights violators. This paper first examines the ATT, and observes that the ATT, if implemented as promised, would require dozens of additional arms embargoes, including embargoes on much of Africa. The paper then provides case studies of the current supply of arms to the dictatorship in Zimbabwe and to the warlords in the eastern Democratic Republic of the Congo (DRC). The paper argues that the ATT would do nothing to remediate the conditions which have allowed so many arms to be acquired by human rights violators in Zimbabwe and the DRC. The ATT would have no more effective force than the embargoes that are already imposed by the UN Security Council; therefore states, including China, which violate current Security Council embargoes could just as well violate ATT embargoes. Accordingly, the ATT is a distraction, and human rights activists should instead examine alternative methods of addressing the problem of arms in the hands of human rights violators."
The posts about amicus briefs have gotten enough interest that I thought I'd add one more, before I close with two posts about oral argument. Again, this is from Mayer Brown's Federal Appellate Practice treatise:
[A] nonparty that is not a government entity or official covered by Rule 29 of the Federal Rules of Appellate Procedure and cannot obtain the consent of the parties must seek leave of the court to file an amicus brief. Whether to grant a motion for leave to file is a decision that falls within the discretion of the court of appeals....
(a) Restrictive View
In a series of opinions, Judge Posner of the Seventh Circuit has taken a narrow view of the circumstances in which leave to file an amicus brief should be granted. Indeed, his attitude towards amicus filings has been described as one of outright “hostility” and even as a “crusade.”
While acknowledging that we are now “beyond the original meaning” of “amicus curiae,” and that “an adversary role of an amicus has become accepted,” Judge Posner is nevertheless insistent that there be “limits.” Those limits, according to his opinions, are that a motion for leave to file should ordinarily be granted only when (1) a party is not represented competently or not represented at all; (2) the amicus has an interest in some other case that may be affected by the decision in the case before the court; or (3) the amicus has unique information or a unique perspective that can provide assistance to the court beyond what the lawyers for the parties can provide.
The opinions offer a number of justifications for these limitations: (1) judges “have heavy caseloads” and so “need to minimize extraneous reading”; (2) amicus briefs may be used to “make an end run” around limitations on the length of party briefs; (3) amicus briefs “drive up the cost of litigation”; and (4) amicus briefs often reflect an effort to “inject interest group politics” into the judicial process. Judge Posner has applied the limitations without discrimination; in the most recent of his opinions, he denied a motion filed by the Speaker of the Illinois House of Representatives and the President of the Illinois Senate.
These opinions do not reflect the views of Judge Posner alone. Although two of the three were “in chambers” opinions in which Judge Posner spoke only for himself, one of the opinions was a panel opinion joined by two other members of the Seventh Circuit. And that opinion states that the limitations described above reflect the “policy of this court.”
It bears mention, moreover, that Judge Posner is one of the most respected and influential judges in the United States. For that reason, his views on amicus briefs, as on any issue, will inevitably be taken seriously by other courts. The Supreme Court of Illinois, for example, has stated that the limitations described in Judge Posner’s opinions will be treated as a “useful guide” in ruling on motions for leave to file in that court. Following that “guide,” the court ruled that the Chamber of Commerce of the United States — one of the most frequent filers of amicus briefs — would not be permitted to file a brief in that case.
Nevertheless, the significance of Judge Posner’s views should not be overstated, even within the Seventh Circuit. Because a motion for leave to file an amicus brief rarely results in the issuance of an opinion, it is difficult to gauge how consistently Judge Posner’s “policy” is followed. Still, practitioners filing a motion for leave to file in the Seventh Circuit would be well advised to include an argument that the proposed brief satisfies the standards set forth in Judge Posner’s opinions. Practitioners should be particularly careful to ensure that their proposed amicus filings are not perceived as “me too” briefs, which merely repeat the arguments of the party or other amici. That is sound practice in any circuit, but especially in the Seventh.
(b) Permissive View
Outside the geographical boundaries of the Seventh Circuit, Judge Posner’s position on amicus briefs has few defenders. Leading appellate practitioners have been highly critical. One has argued that Judge Posner’s “reflexively negative view” towards amicus briefs “makes no sense” given “the simple fact that many appellate decisions have profound effects that far exceed the boundaries of the dispute between the parties.” And within the federal courts of appeals, Judge Posner’s position clearly reflects the “minority view.” Although there have been isolated instances of courts outside the Seventh Circuit denying motions for leave to file for reasons other than untimeliness, the “general practice in the federal courts of appeals is to grant leave to file an amicus brief in most situations.”
The majority view is comprehensively set forth in an opinion by another of the country’s most respected judges: then-Judge Alito of the Third Circuit. His opinion rejects the “restrictive standards” reflected in Judge Posner’s opinions, on the grounds, among others, that they may “convey an unfortunate message about the openness of the court” and “create at least the perception of viewpoint discrimination.” Judge Alito’s opinion also responds to a number of the specific points made by Judge Posner. The opinion explains that, even when a party is well represented, an amicus may provide “important assistance to the court” — for example, by collecting relevant “‘background or fact[s],’“ providing “‘expertise not possessed by any party,’“ explaining “‘the impact a potential holding might have’“ on a particular group, or arguing “‘points deemed too far-reaching’“ by a party. The opinion also points out that requiring a prospective amicus to undertake the “distasteful task” of demonstrating the incompetence of the attorney for the party would likely “discourage amici” in cases where the party’s brief is “less than ideal” and an amicus submission would be “valuable to the court.” Finally, the opinion notes that a restrictive policy is “an unpromising strategy for lightening a court’s work load,” because the time required for “skeptical scrutiny” of proposed amicus briefs might equal or exceed the time required for studying the briefs if leave were granted, and “unhelpful amicus briefs” likely claim only “a very small part” of a court’s time in any event.
Judge Alito’s approach is thus diametrically opposed to Judge Posner’s. While the latter effectively establishes a presumption that motions for leave to file an amicus brief should be denied, the former effectively establishes a presumption that they should be granted. As Judge Alito’s opinion puts it, courts should grant leave to file “unless it is obvious that the proposed briefs do not meet Rule 29’s criteria as broadly interpreted” — i.e., unless it is obvious that the movants do not meet the broadly interpreted requirements of “(a) an adequate interest, (b) desirability, and (c) relevance.” Judge Alito’s opinion notes, correctly, that this approach “is consistent with the predominant practice in the courts of appeals.”
Thus, in most circuits, a motion for leave to file an amicus brief will ordinarily be granted as long as the motion and brief (1) comply with the technical requirements of Rule 29 and any applicable local rules and (2) make a plausible case that the brief performs one of the traditional functions of an amicus submission. In most circuits, however, a motion ordinarily will not be required, because, as Judge Alito’s opinion observes, the parties recognize that “leave to file would be granted [even] if consent were withheld,” and thus it is typical for consent to be “freely given.” Practitioners may find that consent is less freely given in the Seventh Circuit, because, under that court’s restrictive standards, it is far less clear that leave to file would be granted if consent were withheld.
This practice is consistent with our experience. Counsel who regularly practice before courts of appeals (at least other than the Seventh Circuit) recognize that it is generally pointless to withhold consent to the filing of an amicus brief, even if it is being proffered by a hostile amicus. The court of appeals is likely to grant the motion, and recalcitrant counsel gains nothing but judicial annoyance from forcing the amicus to file a formal motion. It may sometimes be awkward to explain to a client why giving this consent is not only appropriate as a matter of “professional courtesy” but also as a matter of tactical wisdom; counsel representing a party should be prepared to provide such an explanation. If succeeding on an appeal depends on keeping the court of appeals from hearing from an amicus curiae, counsel and the client may have real problems.
Ronald Bailey on what may be the most common (and politically influential) form of climate change denialism.
The California Air Resources Board issued a fanciful study finding that mandates to cut greenhouse gas emissions will cost Californians essentially nothing. This is pure California dreaming. In his stinging critique of the study, Harvard economist Stavins said that putting the world on a less carbon-intensive path will require serious policy and sacrifice. "This will not be easy, and it will not be cheap," he wrote. "Indeed it will be costly."
The first topic in my corporate finance class - starting in, alas, not very many weeks - is valuation and market efficiency.
This is a law school class, and the approach to valuation is not technical; it is mostly just a description of why it is important, in the context of a survey class that is usually a follow-on to business associations and precedes more specialized upper level business law classes. I am using Professor Bratton's text, which I like very much, although it covers a whole year - and more - worth of material. So we don't deal with M&A and many other things that this very comprehensive text addresses. For many law students, though, this is the first introduction to risk - the first introduction to finance, but risk in particular - as well as to financial markets and institutions. They have dealt with it in various ways in the first year, but only indirectly, mediated by the traditional legal doctrines of tort, contract, etc.
Students ask me what level of sophistication I am aiming for in this kind of upper level survey course. My current, and revisable, answer is that at a very minimum, I think they need the kind of sophistication that appellate judges bring to their opinions, to be able to read and understand those opinions, and to be able to have a start on writing briefs to judges on these issues. At least to be able to read the opinions on these topics offered by generalist appellate judges. Is that the right standard for upper level law students, often with no exposure to economics or business other than law school, in a midtier law school?
(Update: Commenters have made many very helpful suggestions, thanks! I can also see that I want to do a separate post, perhaps as I fine-tune my corporate finance class syllabus, just on the pedagogy of teaching finance to law students.)
I wrestle with this a lot, as I'm sure corporate finance law professors often do. I worry that I dumb it down too much - I've concluded, for example, but not without trying for years, that actually working through numerical present value problems with 80 students coming from completely different preps for this stuff is just hopeless. Half of them had it years ago and the other half are scared witless by numbers. But is that putting too little on law students? My younger brother had a corporate finance class in law school conducted largely on Excel. He could model more sophisticated option pricing than I will ever hope to do - on the other hand, he did not know what the term 'indenture' referred to when he had finished the class and was charmingly curious about why 'covenants' were so important in bonds contracts (I exaggerate, but not by much).
Perhaps unsurprisingly, my brother sounded very much like the private equity manager I was chatting with at a Christmas party in 2008 - I asked, I read these qualitatively complicated covenants in bond contracts that only have an effect at bad moments, and I am really interested in how, at the fundamental analysis level - not simply referring to some presumed market proxy - one would go about putting a value on these things. He laughed and said, until last year, we assumed they never applied and never tried to value them, except maybe in some generic, completely unsystematic way - we assumed either that it didn't matter or else that it was already priced in somehow. Anyway, he said, you're the lawyer, you guys write them, you're the only ones who would know what they mean well enough to describe the consequences - you do the valuation. I told him that seemed weird and maybe even unnatural.
But was he right that no one priced these legal breakdown contingencies in, or or simply indulging Xmas party chat? Heck if I know these days. I have this sneaking feeling that what I will tell students in August will not be exactly, and with the same enthusiasm (see below), as I expressed myself on the subject of the efficient market hypothesis a decade ago.
So the textbook starts with valuation and then the efficient market hypothesis which, of course, is a matter much on many minds at the moment and not just mine. I like starting there; I used to start in the most traditional way, with concepts of equity, but in a world in which I am trying to emphasize to students that finance is more than just capital raising in the traditional sense, this works far better. (I like the Bratton book a lot.)
Meanwhile, I have been taking the summer opportunity to review the recent literature on EMH, both the academic literature and the writing aimed at a more general audience, in order to have a good basis on which to situate students to the current state of debate. Even just sticking with careful textbook writers like Professor Bratton - rather than some of the more breathless tomes in the popular books - I am struck by how much more cautious this 2007-08 edition is with regards to EMH. I have a broad selection of texts and standard books on the topic sitting on my shelves, multiple editions going back to the 1980s, and looking back over different editions of A Random Walk, various corporate finance texts for both business schools and law schools, etc., there is an (unsurprising) amount of pull-back.
Here's my question. I'm thinking of proposing a review essay of recent books on efficient markets for a general book review. It is a general review, and the editor worries that I intend to drive general readers crazy with 'jargon and jumble' (I quote; but surely perish the thought, moi?). I might assign some book in the list to students in the class, as well. If the topic is not the economy generally, not the recession, not the financial crisis as such - but efficient market theory, specifically, what books would you suggest I feature in a review? They have to be recent, last nine months, certainly not more than a year.
Because the list I have below is mostly critical of efficient market theory, I would be quite interested to see the most current defense of it to the general reader, in as strong terms as anyone is willing to go. One can go to the Fama/French blog, I guess, and I will point students there, but for review purposes, I'd like to find a book.
On my list already is Justin Fox's excellent The Myth of the Rational Market. I am also considering George Cooper, The Origin of Financial Crises. Are there others for the general reader but specifically on market efficiency? I might include George Akerloff and Robert Shiller, Animal Spirits, because though it is directly about behavioral finance, its implications are about rational market efficiency. For that matter, the Economist of July 18, 2009 has an excellent briefing, "Efficiency and beyond," something I will certainly assign to students. I am also thinking about Dick Posner's A Failure of Capitalism - but it is probably too much about the financial crisis rather than about efficient markets as such.
(Update: I should add how much I admire the late Peter Bernstein's books. Someone mentioned Capital Ideas and Capital Ideas Evolving - they are very interesting, but a little bit hard for the uninitiated. The book that will really stand out over time by Bernstein, I think, is his Against the Gods: The Story of Risk. I reviewed it in the 1990s in the Times Literary Supplement, free download at the link, along with a good, somewhat sophisticated book on derivatives by the then editor of Risk magazine, Leverage: A Sword that Cuts Both Ways (aptly named).)
My own, first introduction to EMH was in the early 1980s, in law school, with a well-known corporate finance law professor. He was, even (or perhaps especially) way back then, perhaps too smitten with the idea in a purely deductive form - both the versions noted by Shiller, and with good reason much noted on econ blogs these days, viz., (a) no free lunch and no easy pickings and (b) the price is really, truly, genuinely right. I had come straight from philosophy with a fair amount of attention to the problems of skepticism, so I bravely raised my hand and said ... this seems to me a little bit like Candide's version of Leibniz, things are necessarily for the best in the best of all possible worlds.
He fixed me with a stare and said wiltingly (something very much like), perhaps you should actually understand it before you do a little one-line take-down. He was quite right; I was doing the (lazy) law student's favorite intellectual move, which is to avoid having to understand something on its terms, and instead reframe it, preferably critically, in terms that already make sense to you. The former approach requires learning the apparatus in which the proposition is framed; the latter essentially reduces it to a metaphor, which might be brilliant and insightful but is always, so to speak, from 'outside' the frame in which it is derived.
But it was also true that the version of the thesis I learned auditing business school classes was much more cautious, and defended far more inductively, than what I was taught in law school. I did eventually learn it from the inside out. What I said by referring to Candide - deductive optimism - of course has always been made as a point against strongly deductive versions of EMH, made by practically everyone in some form or other, and I just didn't know it. I didn't really understand the true importance of "inside" versus "outside" understanding until I went into tax law and found out that to advise a client, it was not enough to do the Tax Law of Immanent Critique. That was the moment (naturally!) I knew I wanted to be a professor.
So what recent books on this should I propose to review? Suggestions welcomed. And any thoughts on the pedagogy of corporate finance for law students also very welcome. And of course anything you like on EMH.
Does Knowing What’s Under the Judicial Hood Threaten the Supreme Court’s Legitimacy? Part 2.
In Part 1 of this discussion I set out a conundrum grounded in earlier research on public attitudes toward courts: Either knowledge does not produce a realistic understanding of decision making, or legitimacy may not depend upon citizens being duped into believing in theories of mechanical jurisprudence and the myth of legality.
Here, I provide some empirical evidence on these relationships, and offer a theory of how the American people can subscribe to the tenets of legal realism but nonetheless extend legitimacy to the U.S. Supreme Court.
To summarize the problem: (1) The Supreme Court is an extremely legitimate institution in the eyes of the American people. (2) At the same time, most Americans believe that judges make law using their personal ideological and philosophical values. (3) In a democracy, discretionary policy-makers acquire legitimacy primarily through the accountability of the electoral process. (4) The unaccountable U.S. Supreme Court is different in that its legitimacy is found in how people understand discretion to be exercised. (5) Discretion can be exercised in a principled (sincere) or strategic (insincere) fashion. (6) Because the American people see the justices of the Supreme Court as exercising principled discretion, they support the institution. (7) Concomitantly, because Congress is seen as self-serving and strategic, that institution is held in lower regard.
This analysis is based on a nationally representative sample of the American people. The paper from which these comments are drawn can be seen at http://polisci.wustl.edu/sub_page.php?s=3&m=0&d=7 ). (see the “Segal and Spaeth” paper).
Thus, one of the most important questions this research seeks to answer is whether institutional support is undermined by holding a realistic understanding of the role of discretion and values-based decision making when it comes to the U.S. Supreme Court.
How do the American people perceive decision making on the U.S. Supreme Court? One possibility is that most Americans accept the theory of mechanical jurisprudence. A century ago, Pound(1908) described mechanical jurisprudence as the perception that judges have little discretion in decision making; that law, not judicial philosophies, ideology, and partisanship, structure decision making; and that courts are distinctively non-political institutions.
Believing in mechanical jurisprudence stands as a crucial linchpin in many theories of institutional legitimacy. After all, mechanical jurisprudence provides at least a partial answer to the quandary produced by the lack of any realistic political accountability in one of the most powerful policy making institutions in American democracy. If judges are making discretionary decisions based on their political ideologies, and are doing so without any serious mechanisms of accountability, then significant questions of democratic legitimacy arise. To the extent that judges are mechanically following the law, worries about legitimacy recede.
We formulated several propositions about judicial decision making and asked our respondents to indicate their degree of agreement or disagreement with each. The first such statement has to do with discretion:
Since the constitution must be updated to reflect society’s values as they exist today, Supreme Court judges have a great deal of leeway in their decisions, even when they claim to be “interpreting” the constitution.
To this statement, 70.1 % agreed; thus, perceptions of available discretion in Supreme Court decision making are widespread.
But on what basis do judges exercise their discretion? We offered three possibilities to the respondents:
Judges always say that their decisions are based on the law and the Constitution, but in many cases, judges are really basing their decisions on their own personal beliefs.
Judges’ values and political views have little to do with how they decide cases before the Supreme Court.
Judges’ party affiliations have little to do with how they decide cases before the Supreme Court.
Most Americans (61.9 %) agree that judges actually base their decisions on their own personal beliefs, even while a smaller majority (51.8 %) recognizes that values and political views influence how decisions are made. On the question of partisan influences on decision making, the balance of opinion changes, with a slim plurality believing that party affiliations have little to do with judges’ decisions (47.4 % versus 43.8 %).
In general, belief in the theory of mechanical jurisprudence is not particularly widespread in the U.S. Of the four statements concerning the exercise of discretion, on average, only 1.4 was endorsed by the respondents, with a median of only a single statement. Only 1.9 % of the sample subscribed to the theory of mechanical jurisprudence in response to all four of the propositions. Most Americans have a fairly realistic view of how Supreme Court justices make their decisions.
Thus, from the responses to these questions, it appears that most Americans reject the mechanical jurisprudence model. Most believe that discretion exists, and that discretionary decisions are made on the basis of ideology and values, even if not strictly speaking on partisanship.
At the same time, however, a majority of Americans — albeit a slim one (52.6 %) — reject the view that “Supreme Court judges are little more than politicians in robes.” Thus, for many, discretionary and value-based decision making does not constitute the essence of the politician’s function. Instead, something more is required.
Acknowledging discretion and value-based decision making is distinct from viewing judges merely as politicians. The correlation between the four-item mechanical jurisprudence index and the belief that judges are politicians in robes is only .12. Those who believe that judges are politicians are more likely to perceive discretionary decision making, but those more likely to perceive discretionary decision making are not necessarily more likely to view judges as politicians.
These findings suggest to us a typology based upon two factors: (1) whether judges are seen as having discretion and (2) whether the exercise of discretion is “political” or not. For the latter, we define “political” primarily in terms of whether discretion is exercised in a principled or self-serving or strategic fashion. We do so relying heavily on the work of Hibbing and Theiss-Morse (2001), who argue that disapproval of Congress is largely grounded in the perception that Members of Congress are typically advancing their self-interest above all else.
Obviously, if people do not recognize discretion, then the question of how discretion is exercised is not relevant; we term this type the Mechanical Jurisprudence Model. The exercise of principled discretion is dubbed the “Judiciousness Model.” The “Typical Politician Model” describes self-interested decision making. We assume that the dominant view of American judges is the Judiciousness Model and that the most prevalent view of parliamentarians and executives is the Typical Politician Model.
Thus, we posit three main types when it comes to perceptions of the judiciary: Those who perceive relatively high discretion but who believe that judges exercise discretion in a relatively principled fashion; those who see relatively high discretion but who believe that judges tend toward being strategic politicians of the ordinary sort; and those who perceive relatively low discretion as available to judges. According to our survey data, very roughly speaking, about one-fourth of the American people fall into each of these three categories, with the remaining one-fourth being uncertain and/or confused.
The paper cited above provides some statistical evidence showing that (1) those who know more about the Supreme Court tend to extend more legitimacy to the institution. (2) Knowledge is belief in the tenets of Legal Realism, not Mechanical Jurisprudence. And (3) to believe in Legal Realism is not necessarily to accept the view that judges are just politicians in robes. With just a pinch of speculation, these empirical results make some sense.
Knowledgeable respondents seem to have fairly complicated view of judging. They do not believe that the political views of the judges are irrelevant, and only a minority denies discretion in judicial decision-making, but at the same time they see judging as different from ordinary politics. Perhaps the key to understanding their views can be found in the item on whether leeway in constitutional interpretation exists.
The leeway item was designed to measure perceptions of the availability of discretion in decision making. But perhaps that is not what the question is actually measuring. Among the most knowledgeable, responses to this item are completely uncorrelated with the other statements (maximum r = .05), with the exception of the statement about politicians in robes, where the correlation is .22. We suspect that at least some respondents viewed this statement as more about judges being disingenuous than about discretion. Perhaps these respondents are keying on the phrase “even when they claim to be ‘interpreting’ the constitution.” Perhaps some view this as a statement about whether judges are strategic or not, in the sense of doing one thing but claiming to do another. The failure of this item to correlate with the other discretion questions, while having a positive correlation with the politicians in robes item, may indicate that this indicator is measuring perceptions of strategic and insincere activity on the part of judges.
Perhaps the most important conclusion of this analysis is that the legitimacy of the U.S. Supreme Court does not depend on the perception that judges merely “apply” the law in some sort mechanical and discretionless process. The American people know that the justices of the Supreme Court exercise discretion in making their decisions – what better evidence of this fact is there than the multiple and divided judgments by the group of nine? They are also aware that the justices’ discretion is guided by ideological and even partisan considerations, to at least some degree. None of these understandings seem to contribute to undermining the legitimacy of the Supreme Court. Instead, legitimacy seems to flow from the view that discretion is being exercised in a principled way.
How do the American people discover that courts exercise discretion in a principled fashion? The answers can be found in both childhood socialization and the powerful symbols of judicial power.
Americans learn from the earliest days of their civics education that the American political world is divided into the branches. Moreover, civics training attempts to reinforce the view that judges deal with law, not politics, and that judges typically are not politicians in the usual sense. Most schoolchildren come to appreciate that judges of the Supreme Court do something different from what the president or Congress does.
This view that judging is different from politics is reinforced every time the citizen pays attention to the real world of judicial politics. Judges wear special dress, are shown extraordinary deference and respect, and they work in a building that often looks very similar to a temple. Citizens taught from civics courses that judges are different have that view reinforced every time the judiciary catches their attention.
When citizens pay attention to courts, two things happen. First, they acquire information about the justices, the cases, and the institution. They may learn about personalities, about rulings in areas of interest, and about the structure and function of the institution. They therefore become more knowledgeable about the institution.
The second lesson learned concerns the symbols of judicial power – these symbols teach that the judiciary is different from other political institutions. The two aspects of learning may or may not be connected to each other, but we posit that factual learning contributes to higher political knowledge and symbolic learning contributes to higher institutional support.
Being informed about courts means that one understands that judges make decisions in a principled fashion. The mistake of some research is to assume that principled decision making can only be understood as discretionless or mechanical decision making. The most important argument of this paper is that the American people accept that judicial decision making can be discretionary, grounded in ideologies, but also principled and sincere. What the American people find detestable about political decision making is that it is strategic. The synonym for “strategic” is insincere; the reason why people distrust politicians is because they believe they are not sincere, they say and do what is useful and self-serving at the moment. The way that judges are different from ordinary politicians is that they are sincere, and their sincerity adds tremendously to their legitimacy and the legitimacy of their institution.
So, in the end, the generation of political scientists who have taught their students Legal Realism and the Attitudinal Model of Segal and Spaeth seem to have done little to undermine the legitimacy of the Supreme Court. The American people seem capable of understanding the true nature of decision making on the Court, but at the same time regard the institution as highly legitimate within the American political scheme. Judges are certainly politicians; but what distinguishes judges in the minds of the American people is that judges exercise discretion in a principled fashion. Were other politicians to act more like judges, perhaps the legitimacy of all American political institutions would be elevated.
In her ongoing attempt to defend Human Rights Watch's indefensible, Israel-bashing, fundraising dinner with Saudi elites, with government officials in attendance, Sarah Leah Whitson has now played the racism card. Oh, she hinted at it before, when she responded to my Wall Street Journal piece by snidely writing, "believe it or not, some Arabs believe in human rights too," even though NOTHING in my piece suggested or implied that no Arabs believe in human rights, or, for that matter, that Arabs are inherently less likely to believe in human rights than anyone else. And it's not like I left the source of my criticism to the imagination: I criticized HRW for "raising funds among the elite of one of the most totalitarian nations on earth, with a pitch about how the money is needed to fight 'pro-Israel forces,'" and for risking "becoming dependent on funds emanating from a brutal dictatorship [which] leaves you vulnerable to that brutal dictatorship later cutting off the flow of funds if you don't 'behave.'"
Now Whitson's more explicit. She has told the Beruit-based news service Menassat that my (and others') beef with Human Rights Watch's Saudi Arabian venture is "fundamentally a racist one." This just shows how low Whitson will go, and how desperate she has become. Her defense of fundraising through Israel-bashing in Saudi Arabia has fallen flat. She won't release a video or transcript of her remarks at the Saudi fundraising dinner. The one recent video of her that has circulated, before an American audience, where she was likely more restrained then she would be in Saudi Arabia, shows her lambasting Israel for minutes at a time for its alleged human rights violations during its wars with Hezbollah and Hamas, while not managing to identify a single violation by the latter two terrorist groups, whose very method of combat--hiding behind civilians, not wearing uniforms, targeting civilians--violates all international norms. This video led one previously wishy-washy observer to conclude, "I don't know how, after this, HRW is not fatally compromised when it comes to reporting Israel." I guarantee Whitson can't reasonably explain why as the representative of an allegedly non-partisan human rights group she hires Palestinian political activists with a long record of hostility to Israel as her "neutral" researchers. And of course, Whitson has never acknowledged Human Rights Watch's various errors in its reporting on Israel--here's one example--and her boss, Ken Roth, asserts that all criticism of HRW amounts to "lies and deception".
Ironically, nothing offends Human Rights Watch officials and its defenders more than unsubstantiated allegations that HRW's anti-Israel agenda (which, counterfactually, HRW denies having) is driven by anti-Semitism. But throwing out charges of racism against its critics, which are not only unsubstantiated but completely irrelevant to the issues at hand, is apparently a-okay with HRW's Middle East director, Ms. Whitson.
I will not, however, sink to Ms. Whiton's level in this debate. Oh, what the heck: I'm rubber, you're glue, anything you say bounces of me and sticks to you.
Your esteemed blogger is going in for a colonoscopy tomorrow. He is unenthused about the procedure, but even less enthused about possible alternative scenarios. He has conducted a careful cost-benefit analysis and the benefits win. This is not a case of a post containing Too Much Information - Professor Anderson has lost not one, but two, colleagues in past years, way too young, to colon cancer. If you're in the age brackets, get screened.
(Update: A-ok! and thanks for the good advice and wishes.)
PopeHat Confesses/Brags About North Korean Twitter Feed Hoax,
here. He fooled me, a Norwegian news site (which ran the headline, "North Korea Threatens Cyprus With War"), and others. The key to the hoax's success, I think, was that it captured well the spirit of the actual North Korean news agency. In any case, PopeHat 1, me 0.
UMKC Law Review "One-L Revisited" Law Stories Contest,
for current law students and recent graduates (from 2006 or later) -- for details, see here. Naturally, the law review issue will have an Introduction by Scott Turow, and it will also have stories from some law professors.
First Amendment Protects Disclosure of Name and Address of Juror, Together With Condemnation of Juror, on Racist Web Site:
That's the holding of U.S. v. White (N.D. Ill.), decided yesterday, which dismissed White's indictment for allegedly soliciting criminal actions against the juror (long after the trial was completed). An excerpt:
In 2003, a jury in the Northern District of Illinois convicted Hale of soliciting the murder of District Judge Joan Lefkow, who had presided over a civil case involving Hale’s organization....
On October 21, 2008, the government indicted defendant, alleging that on his website, Overthrow.com, he solicited or otherwise endeavored to persuade another person to harm “Juror A,” the Hale jury foreperson. Specifically, the government alleged that on or about September 11, 2008, defendant displayed on the front page of his website a post entitled, “The Juror Who Convicted Matt Hale.” The post read:
Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number].
The post did not expressly advocate that Juror A be harmed.
As “circumstances strongly corroborative of [defendant’s] intent” that another person harm Juror A, the indictment alleged that when he posted the above statements, defendant was aware that white supremacists, Overthrow.com’s target audience, sometimes committed acts of violence against non-whites, Jews, homosexuals and others perceived as acting contrary to the interests of the white race. The indictment also alleged that before he posted the above statements, defendant displayed on Overthrow.com other posts, some of which were still available, purporting to contain the home addresses of and/or other identifying information about individuals who had been criticized on the website, and that in certain of these posts, defendant expressed a desire that the individuals be harmed.
In Claiborne Hardware, the Supreme Court considered a boycott by black citizens of white-owned businesses in Claiborne County, Mississippi. As is pertinent here, the boycott involved stationing individuals, known as “enforcers,” “deacons” or “black hats,” near white-owned businesses for the purpose of reporting blacks who violated the boycott. Boycott supporters read the names of such persons at meetings of the Claiborne County NAACP and at church services and published them in a mimeographed paper entitled the “Black Times.” Such persons “were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites.” Some also became targets of violence.
While acknowledging that persons who committed acts of violence could be held liable, the Supreme Court held that others involved in the boycott, including the leader, Charles Evers, could not be. This was so despite Evers’s statements that “blacks who traded with white merchants would be answerable to him,” that “any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people,” that if “we catch any of you going in any of them racist stores, we’re gonna break your damn neck,” that “boycott violators would be ‘disciplined’ by their own people” and “that the Sheriff could not sleep with boycott violators at night.”
Regarding this aspect of the boycott, the Court noted that speech does not lose its protected character “simply because it may embarrass others or coerce them into action.” Even when the speech arguably contains threats of violence, “in the context of constitutionally protected activity ... ‘precision of regulation’ is demanded.” The Court thus held that, although the “black hats” who engaged in violence could be punished, there “is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others.” Finally, the Court held that Evers could not be held liable for his statements about the boycott violators:
While many of the comments in Evers’ speeches might have contemplated “discipline” in the permissible form of social ostracism, it cannot be denied that references to the possibility that necks would be broken and to the fact that the Sheriff could not sleep with boycott violators at night implicitly conveyed a sterner message. In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended.
It is clear that “fighting words” -– those that provoke immediate violence -– are not protected by the First Amendment. Similarly, words that create an immediate panic are not entitled to constitutional protection. This Court has made clear, however, that mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. In Brandenburg v. Ohio, we reversed the conviction of a Ku Klux Klan leader for threatening “revengeance” if the “suppression” of the white race continued; we relied on “the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The emotionally charged rhetoric of Charles Evers’ speeches did not transcend the bounds of protected speech set forth in Brandenburg.... Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the “profound national commitment” that “debate
on public issues should be uninhibited, robust, and wide-open.”
In the present case, defendant also disclosed the identity of a person, Juror A, with whom he disagreed on a matter of social importance, i.e. the conviction of Hale in a high profile criminal case. Although he did so under potentially intimidating circumstances, as Claiborne Hardware holds, even when the circumstances surrounding a disclosure are intimidating, the speech may not be punished consistent with the First Amendment unless it is directed to inciting imminent lawless action and likely to produce such action. Defendant’s speech lacked both of these characteristics.
You might also want to read the rest of the analysis, and in particular pp. 19-34, which discuss other cases, including the Nuremberg Files case. (For my views on the Nuremberg Files case, see this op-ed supporting the panel decision that was later reversed by a 6-5 vote of a Ninth Circuit en banc panel.) This is a very interesting, important, and difficult category of First Amendment questions, and the court's opinion strikes me as a must-read for anyone interested in this.
Thanks to Deborah Lauter, Director for Civil Rights of the Anti-Defamation League, for the pointer to the decision.
UPDATE: From p. 35 of the opinion: "[T]he fact that I might regard as noble the struggle of Mississippi blacks for equal treatment, and defendant’s views as reprehensible, is irrelevant to the constitutional analysis. Nevertheless, there is irony in the fact that defendant’s right to spread a message of white supremacy has, in large part, been secured by the efforts of African-Americans to obtain civil rights."
More on amicus briefs, and in particular "the virtue of brevity" and "the vice of duplication," from Mayer Brown's Federal Appellate Practice treatise (some paragraph breaks added):
Courts have heavy caseloads, and judges and law clerks are therefore busy. For that reason, they tend to appreciate short briefs — or, more precisely, briefs that say no more than necessary for the court to decide the case intelligently. They also tend to pay more attention to short briefs. As Justice Scalia put it in his book on effective advocacy: “The power of brevity is not to be underestimated. A recent study confirms what we all know from our own experience: people tend not to start reading what they cannot readily finish.” Accordingly,
a brief that is verbose and repetitious will only be skimmed; a brief that is terse and to the point will likely be read with full attention. So a long and flabby brief, far from getting a judge to spend more time with your case, will probably have just the opposite effect.
That is particularly true of amicus briefs. In Justice Scalia’s words, the “injunction of brevity has special force here, since not even the demands of duty drive judges to read amicus briefs that are bloated.” That view is shared by the justices’ law clerks. On the basis of interviews with former clerks, the author of a study on amicus briefs in the Supreme Court concluded that “[o]ne of the foremost attributes common to the ideal amicus brief is brevity.”
At least as a general rule, the same principle applies to amicus briefs in the courts of appeals. For two main reasons, an effective merits-stage amicus brief rarely requires every one of the 7,000 words authorized by the rules, and the author should try hard to resist the notion that the brief should be as long as the rules permit. Judges are aware that appellate briefs are like gas, expanding in volume to fill their container. Even though the rules permit a 7,000-word container, judges recognize and resent gaseous briefs.
First, apart from tables and certificates, an amicus brief need only include a statement of interest and an argument; it need not include a statement of the case or a statement of facts.
That is what the rules say. As a matter of practice, however, an amicus brief not only need not include a statement of the case or of the facts, it ordinarily should not include either type of statement. An amicus should assume that judges and law clerks do not wish to read procedural or factual — or any other — information that has been set forth in the party’s brief and that instead they wish to get to the main point of the amicus brief as quickly as possible. Unnecessary preliminaries create a risk that the reader will lose interest in the brief and will — at most — merely skim the brief rather than studying it carefully.
Of course, there may be cases in which the facts are critical and the amicus concludes that they have not been effectively presented in the party’s brief. In that circumstance, the amicus should include a statement of the facts of the case, but only a short one focusing on the most salient facts that underpin the arguments that the amicus will be making. If you draft a statement of facts for an amicus brief, go back after you complete the argument section to see whether you can excise some facts as unnecessary to the court’s appreciating your points. As in any brief, factual propositions should be supported by citations to the opinion under review and the record, so that the reader is left with no doubt as to their accuracy. The author of the brief must also be meticulous in ensuring that the citations actually support the proposition; if they do not, the amicus risks losing credibility with the court.
Second, as to the argument, while it may be understandable for a party to believe that it must err on the side of saying too much, so as not to omit anything that might conceivably persuade the court to rule in its favor, there is no reason for an amicus to adopt that approach. On the contrary, if an amicus feels that it must err in one direction, it should err on the side of saying too little.
An amicus brief typically has a single, discrete objective. If that objective can be achieved in relatively few pages, then, as the survey of law clerks concluded, “it is counterproductive to obfuscate the important information the amicus seeks to convey by submitting additional pages.” It is also counterproductive to risk irking the judges who will decide the case by submitting additional pages — to say nothing of the risk that the judges will only skim the brief or not read it at all. According to Justice Scalia, the author of an amicus brief should “[m]ake the one or two points (preferably one) that [he or she] think[s] will contribute something important and new — and close.”
Brevity, of course, is merely an ideal toward which the amicus should strive; it is not an inexorable requirement. In particular, “the goal of brevity should not override the more important goal of helpfulness.” There will be cases in which the objective of the amicus cannot be achieved in a few pages — cases, for example, in which there is simply a very large volume of important information to be conveyed to the court. There will also be cases in which the main justification for the amicus filing is that the party’s brief is inadequate. In that circumstance, an amicus may well require all of the words it is allowed — or at least nearly all.
Whatever its length, an amicus brief should not merely repeat what the party and other amici say in their briefs. The need to avoid “me too” briefs is one of the most common admonitions to authors of amicus briefs — and with good reason. If an amicus brief simply repeats what another brief says, the court will give it little weight. It may not even be read, once an even cursory scan reveals the duplication, as where the amicus brief tracks the organization and headings in the party’s brief. The court may go so far as to deny leave to file, if leave to file the brief is required.
Moreover, apparent duplication may lull the judges (and their law clerks) into giving the amicus brief such short shrift that they miss some unique gem of distinction or insight concealed within the morass. Supreme Court law clerks have indicated, unsurprisingly, that duplication is “the fatal flaw of an amicus brief.” If an amicus does not have anything different to say, it should either stay out of the case or consider filing a consolidated brief with one or more other amici.
Part of the art of drafting an amicus brief, therefore, is not only to have something distinctive to say but also to make it apparent that there is something distinctive about the brief. This can be done in a very brief Introduction that explains what the amicus brief contains or addresses what is not in the party’s brief. In addition, section headings should not mimic those of the party’s briefs. In sum, just as it is often said that not only must justice be done, justice must appear to be done, so too the amicus brief not only should be different from the party’s brief but it also should appear to be different.
Heinzerling to Head EPA's Policy & Economics Shop:
Georgetown University law professor Lisa Heinzerling, who had been serving as a climate policy advisor to EPA Administrator Lisa Jackson, has been named Associate Administrator for the Office of Policy, Economics, and Innovation. This is an interesting development. OPEI includes EPA's National Center for Environmental Economics, and Heinzerling has been an outspoken critic of cost-benefit analysis. In her view, cost-benefit analysis "is at odds with fundamental premises of environmentalism." It's also interesting because her views of cost-benefit are at odds with incoming OIRA Administrator Cass Sunstein. Sunstein (whose nomination is stalled for other reasons) has been a cost-benefit proponent.
ACLU Found To Have Standing to Challenge Islamic (?) Charter School:
The opinion is ACLU of Minnesota v. Tarek ibn Ziyad Academy, filed yesterday. Most of it deals with whether the ACLU's members have "taxpayer standing" to challenge the allegedly Establishment-Clause-violating program; the court said that it does, and also rejected some other procedural objections to the lawsuit. The court also concluded that the charter school is, under Minnesota law, a part of the state public education system, albeit a part that has considerable autonomy; the First Amendment thus applies to its actions. And the court concluded that the organization that runs the school is also to be treated as a state actor as to the school's operation, because of its close involvement with the school.
This leaves the substantive question: Does the charter school indeed unconstitutionally promote Islam, or does it simply offer an environment that's appealing to, and suitably accommodating to, its overwhelmingly Muslim students (chiefly the children of Somali immigrants)? To give one example, the lawsuit challenges the "school calendar" and the "school menu," but I take it that there wouldn't be any problem with public schools that have many Jewish students offering kosher options on the cafeteria menu and Jewish religious holidays off (given that so many students would be absent in any event). Whether the school's actions are seen as endorsing a religion or merely accommodating Muslim students' religious beliefs — the question that, rightly or wrongly, must be answered under the current Establishment Clause test — thus turns on the factual details.
And the court concluded that, because of this, the case can't be resolved without further factual discovery, presumably followed by hearings to resolve the contested factual questions:
The issues raised in both TIZA’s and Islamic Relief’s Rule 12(b)(6) motions [for failure to state a claim upon which relief can be granted] are factual in nature and are not appropriately resolved at this stage in the litigation. For example, TIZA argues that Plaintiff conflates the uniform-dress code with religious entanglement and that Plaintiff has failed to explain how a conservative dress code has the effect of promulgating religion. However, whether or not TIZA’s dress code involves religious entanglement requires a factual inquiry into the particulars and reasons for the dress code. In addition, TIZA asserts that it has honored certain requests for religious accommodation and that in honoring such requests, it is not endorsing religion. However, this inquiry also involves fact issues not appropriately resolved at this stage of the litigation.
Similarly, Islamic Relief argues, for example, that the Charter School Contract demonstrates that Islamic Relief was not endorsing a religious point of view because TIZA made representations in that contract that the charter school would be nonsectarian. In addition, Islamic Relief asserts that Plaintiff’s Complaint must be dismissed because Islamic Relief, as a sponsor, had no role in setting school policies that could be construed as endorsing religion. Again, whether or not Islamic Relief played a role in the allegedly sectarian operations of TIZA is a factual inquiry, and the role and importance of the Charter School Contract will be just one part of that inquiry.
The Court also notes that, at least with respect to TIZA’s motion, there are several alleged sectarian practices, such as TIZA’s busing schedule, that TIZA does not address. That not all allegedly sectarian practices and policies are addressed underscores the premature nature of TIZA’s motion. It is inappropriate, at this early stage of the litigation, to dismiss Plaintiff’s Establishment Clause claim, particularly because it requires an analysis of all the allegedly impermissible religious practices together.
Does Knowing What’s Under the Judicial Hood Threaten the Supreme Court’s Legitimacy? Part 1.
According to the theory of positivity bias (Gibson and Caldeira,2009, Citizens, Courts, and Confirmations) the institutional legitimacy of the U.S. Supreme Court is enhanced by exposure to the legitimizing symbols of law – robes, deference, temples, etc.
But do these symbols teach an erroneous view of how judges make decisions? Judicial symbolism is often associated with Mechanical Jurisprudence and the view that judges merely implement laws adopted by others, and Mechanical Jurisprudence is a powerful source of legitimacy for unaccountable institution like the Supreme Court. So the question to consider is whether increased knowledge of the Supreme Court is associated with increased legal realism (Pound 1908), and whether citizens who are legal realists extend support to the Supreme Court.
More specifically, does acknowledging that the justices of the U.S. Supreme Court rely upon their own values in making decisions on cases before the Court destroy the “Myth of Legality” —“the belief that judicial decisions are based on autonomous legal principles” and “that cases are decided by application of legal rules formulated and applied through a politically and philosophically neutral process of legal reasoning” (Scheb and Lyons 2000, 929)— and thereby threaten the Court’s legitimacy? If the American people knew the truth about the decision-making process on the Supreme Court (truth = Legal Realism), then would they still be willing to extend institutional support to the Court?
Although these questions seem rather simple to resolve, in fact little extant empirical research has attempted to provide answers, and, more generally, the views of the American people are likely more complicated than simply specifying the answer as “yes, they rely on their own values, and are therefore not legitimate” or “no, they follow the law, ignoring their own values, and therefore are legitimate.” Moreover, the empirical literature presents us with some important puzzles and unexplained findings and processes.
From existing research on public attitudes toward law and courts, we do know that, generally, to know more about courts is to hold them in higher esteem. This finding seems to hold in many parts of the world (e.g., Gibson, Caldeira, and Baird 1998). But this simple empirical relationship is far from simple to understand. Presumably, those who know more about courts know more about the realities of how courts actually operate and how judges actually make decisions, and therefore they accept some version of the Legal Realism.
But the conundrum is that scholars typically assume that the legitimacy of judicial institutions can best be sustained by the “Myth of Legality,” or some theory of mechanical jurisprudence. Thus, to the extent that increased awareness of courts is associated with a more realistic understanding of how courts and judges make decisions, and to extent that the realist reality is that judges are policy makers who rely upon their own values in making decisions, awareness should be negatively correlated with institutional support, not positively correlated. That positive correlations are so routinely found must indicate some sort of break in the presumed causal chain. Either knowledge does not produce a realistic understanding of decision making, or legitimacy may not depend upon citizens being duped into believing in theories of mechanical jurisprudence and the myth of legality.
The nature of these interrelationships is crucially important for many sorts of issues confronting the judiciary today. For instance, is it possible to discuss openly judges as policy makers without threatening judicial legitimacy? Many seem to assume that acknowledging the policy-making role of judges undermines perceptions of legitimacy and judicial impartiality – as, for examples, in the minority viewpoint on the U.S. Supreme Court in the case of Republican Party of Minnesota v. White (which extended free speech rights to candidates for judicial office, allowing them to debate public policy issues during their quests for judicial office); or in the unwillingness of nominees to the federal bench to discuss their policy views during confirmation hearings. Most generally, can we hold honest and sincere discussions of judges and judicial decision making without impugning the legitimacy of courts in general and the Supreme Court in particular? To what degree is the legitimacy of the Supreme Court grounded in a myth that seems to become more unsustainable with every passing year?
Greg Caldeira and I have prepared a paper analyzing this question (see the “Segal and Spaeth” paper at http://polisci.wustl.edu/sub_page.php?s=3&m=0&d=7 ). That paper investigates the relationships among knowledge of the Supreme Court, beliefs about the nature of judicial decision-making, and willingness to ascribe legitimacy to the Supreme Court as an institution. The theoretical framework for this analysis is the well-known Legitimacy Theory.
In brief, that theory asserts that: (1) courts are uncommonly dependent upon legitimacy because they have few institutional means of ensuring compliance with their decisions (no purses, no swords); (2) courts value legitimacy highly because legitimacy includes a presumption that decisions, even unpopular ones, ought to be accepted and complied with; and (3) legitimacy depends upon the courts not being viewed as just another political institution; instead, legitimacy requires that citizens distinguish between what it is that judges do and what other politicians do.
At the empirical level, we consider four questions: (1) does knowledge increase institutional support, (2) does institutional support depend on belief in the myth of legality, (3) to what view of judging do the most knowledgeable subscribe, and (4) is the knowledge – support relationship mediated by distinctive views of how judges go about making decisions?
We think it reasonable to hypothesize that greater exposure to courts is associated with a more realistic view of how courts and judges actually operate. Exposure to courts should be associated with the understanding that judges have discretion available to them when they render their decisions, that the process of decision-making involves far more than “applying” the law to the facts in a mechanical or syllogistic fashion, and that judging inevitably involves and implicates the personal values of judges. To know more about courts is to know that collegial courts like the Supreme Court often, if not typically, render divided and, on occasion, deeply and bitterly divided, decisions. If judges cannot agree on what the law is, then belief in a process of mechanical jurisprudence is difficult to sustain.
Paradoxically, however, the limited evidence we have indicates that greater political knowledge is associated with a less realistic view of how courts actually operate. For instance, long ago, Casey (1974) demonstrated that the more one knows about law and courts, the more one is likely to believe in the theory of mechanical jurisprudence. Something about being exposed to information about courts contributes to people embracing this traditional mythology of judicial decision making.
This paradox is all the more interesting in cross-institutional perspective. Hibbing and Theiss-Morse (1995) have shown, for instance, that greater awareness of the Supreme Court leads to more support for it, whereas greater awareness of Congress is associated with less support for that institution. When people are exposed to judicial institutions, they apparently learn more than a single lesson: They may understand that the court has made a decision in favor of (or opposed to) their interests. But they also learn something about the institution itself. Given the dense syndrome of legitimizing symbols courts employ, it is not surprising that this exposure enhances the institutional legitimacy.
But do Americans actually subscribe to a mythical view of judicial decision making? The evidence is not entirely clear. Baird and Gangl (2006) investigate this hypothesis, although their analysis is based upon the judgments of college students. They posit that perceptions of legalistic decision-making enhance the perceived fairness of the decision-making process, a key underpinning of judicial legitimacy. In their experiment, they used media reports to try to convince the students that a Court decision was based more on political than legal considerations.
Unfortunately, but tellingly, the experiment failed on this score, with a majority of the students believing that the justices followed legalistic considerations even when told about the role of ideological factors. Although this result limits the value of the experiment, the finding does demonstrate the powerful framing effects of the belief in legalistic decision making and how deeply embedded it is among the political beliefs of many Americans. In the end, their analysis also demonstrates that greater belief in the myth of legality is associated with greater perceptions of fairness.
Baird and Gangl also report an unexpected finding for which they have no explanation. Perceptions of legalistic decision making enhance fairness judgments, but perceptions of political decision making do not detract from fairness. Political decision making is portrayed in their experiment by the belief that the “members of the Court engaged in bargaining and compromise to reach this decision.” Whether the student believed that bargaining was involved had no impact on perceived procedural fairness.
We suspect that the reason for this finding lies in the conceptualization employed by Baird and Gangl. They clearly postulate an unidimensional continuum ranging from legalistic to political decision making. Legalistic refers to relying upon the law in making decision; political decision making involves bargaining and compromise.
What Baird and Gangl did not appreciate, however, is that two forms of political decision making exist: principled and strategic. Bargaining and compromise can be principled; this process of decision making can focus on real issues and legitimate ideological and legal disagreement. But bargaining and compromise can also be strategic, especially when the actors are attempting to maximize their self interest (e.g., political ambition) rather than reach a negotiated solution to the issue at hand. We hypothesize that to the extent that the American people view discretionary and ideologically based decision making as principled, those views will not undermine the Supreme Court’s legitimacy.
This then leads to the puzzle with which this paper is concerned: Greater attention to courts is most likely associated with greater exposure to legitimizing symbols and therefore with enhanced judicial legitimacy. But, greater exposure is also associated with a more realistic view of judicial decision making, a view emphasizing discretion and policy making, and that view tends to undermine judicial legitimacy. Reconciling this paradox is important for developing a more thorough understanding of citizen beliefs about the judiciary.
Logically, then, extant research findings can only be explained by two processes. First, most people must know little about the Court and therefore accept the myth of legality, which leads to the ascription of legitimacy. Or, second, knowing more about the Court must produce beliefs about judicial decision making that do not undermine the legitimacy of courts. Thus, one of the most important questions this research seeks to answer is whether institutional support is undermined by holding a realistic understanding of the role of discretion and values-based decision making when it comes to the U.S. Supreme Court.
Baird, Vanessa A., and Amy Gangl. 2006. “Shattering the Myth of Legality: The Impact of the Media’s Framing of Supreme Court Procedures on Perceptions of Fairness.” Political Psychology 27 (#4): 597-614.
Casey, Gregory 1974. “The Supreme Court and Myth: An Empirical Investigation.” Law and Society Review 8 (Spring): 385-419.
Gibson, James L., and Gregory A. Caldeira. 2009. Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People. Princeton, NJ: Princeton University Press.
Gibson, James L., Gregory A. Caldeira, and Vanessa Baird. 1998. “On the Legitimacy of National High Courts.” American Political Science Review 92 (#2, June): 343-358.
Hibbing, John R., and Elizabeth Theiss-Morse. 1995. Congress as Public Enemy: Public Attitudes Toward American Political Institutions. Cambridge: Cambridge University Press.
Pound, Roscoe. 1908. “Mechanical Jurisprudence.” Columbia Law Review 8 (December):605-623.
Scheb, John M., II, and William Lyons. 2000. “The Myth of Legality and Public Evaluation of the Supreme Court.” Social Science Quarterly 81 (#4, December): 928-940.
Would Klein be a better writer/thinker/pundit/blogger/wonk/whatever if he had actually done some of the "reporting" stuff, factual reporting stuff, basic beat reporting stuff, that, as I sort of remember, was how in the old days of journalism, one clawed one's way up to the lofty heights that Klein has scaled in a couple of years of pure opinionating? Was there some value to having to labor, so to speak, in the plains of fact-gathering before getting a perch to express one's many views?
Klein's career has consisted entirely, so far as I can tell, of delivering himself of many opinions. In an age in which (a) the front pages of newspapers increasingly consist of precisely that and (b) the internet emerged as a forum for disseminating oneself individually and one's opinions as a career option, he has Done Well. Or as well as one can do by shoehorning oneself on the strength of one's own internet brand into the ... money-losing, dinosaur-media, Kaplan-supported Washington Post. I imagine Klein will milk it until that franchise is no longer valuable enough and then move on to colonize some other medium - I see forms of communication that require less writing and more talking, more visual stuff, in his future. Or wherever the money is in offering opinions. My suggestion? Subcontract the book; you're more a short-form kind of writer.
But I find it hard to believe that his older journalistic peers at the Post and in the profession do not think privately to themselves that, although his political progressivism makes him not really attackable, just as a career figure, they must think to themselves that he might be improved had he done something besides go directly from junior high school to internet "public policy" columnist. He and I both graduated from UCLA - I didn't know they had a major in pontification. Do they hand out diplomas from the college of "Generic Expert"? B.E., Bachelor of Expert degrees?
It is, of course, not outside the realm of possibility that Ezra, Young Turk, is possessed of a keener analytic mind than Greg Mankiw; I'm not opining here on substance, but only on the seemliness of career track. It's the realm of possibility, however, in which Spock has a goatee.
The problem, however, is that his is a career track that thrives on high level, refined, abstract bickering among experts and talking heads. Pick a fight with Greg Mankiw and hope that he responds so that you can show your general worldly relevance and audience connection. That's the currency you're selling to the WaPo, at the end of the day, the heat, not the light. Including the snidification I'm producing here - how do we put it on the internet, "Don't feed the trolls"?
Ezra Klein could, I emphasize, be right as to the substance of every position he takes. That's not what fascinates me about him. It's instead the business model from which he springs, full grown, as it were, skipping over working in and thereby learning something directly about the world in its myriad ways, and going directly to opining about it. And free of any disciplinary restraint, unless one really thinks of generic "policy" as a discipline or a constraint.
Update: I woke up this morning and looked back over what I wrote last night, and do have some regrets. Sorry, too many muscle relaxants also relaxed the social inhibition centers of the brain. But far from a complete sense of regret, I'm afraid ... further thoughts, on my own post.
First, did I violate my own post Against Snark? Partly, but partly not. The problem is, how do you address Ezra Klein's offering? It starts out, note, with a title "The Unbearable Lightness of Greg Mankiw." Greg Mankiw is many things, but "light" is not one of them, and it is an appellation one might conceivably conclude applies to Klein, which is a big chunk of what my post is about. Not about Klein's argument, but about the tone of his way of talking, and wondering whether the lack of factual journalism experience - to which one might add, the lack of experience in anything except expressing opinion - might plausibly be thought to be part of the reason.
Consider not just the title, but the opening - an email from a friend who says he's about to have Professor Mankiw in class, and wondering if he should take the good professor seriously. So. Klein cites a friend thereby showing his connection to elite, only to turn around and out-elite them by trashing them. I'm sorry, but this is smarmy, and to say so is not snark. It is a comment on style and good taste; Klein's opening shows neither, but for quite interesting reasons. Avoiding snark does not mean always limiting oneself to talking about sense, and never about sensibility; it is Klein's sensibility that I find objectionable here.
My interest in it is that the Washington Post has thought that it should pay good money to acquire the style, the blogger, and his audience. That includes the smarminess, and quite possibly a premium for it. This is not the usual method for a traditional newspaper, although it is one papers have been experimenting with - and it goes back a ways, to include pre-web writers like Will. That is, traditionally, you promoted some reporter within the newspaper to the ranks of op ed columnist - he or she was respected within the newspaper and its readership, and presumably brought that credibility and audience.
The new model that Klein represents - Douthat and others to some degree as well; it's not a liberal versus conservative thing - is a change on the business model. The opinionator as free agent on the web. Klein has developed an audience independently via the web, one that presumably appreciates his brand of mixed information, analysis, and sparky controversy to give it emotional appeal to particular audiences (yes of course, one can find this on the right, or analogues, in talk radio, for example). The sparky controversy involves attacking some figure in order to generate a little buzz; in this case, a respected establishment figure like Mankiw, but smarmily intertwined with various indirect ways of showing that one is also part of the elites that he represents.
So Klein has nurtured and developed this audience as a web entrepreneur - and apparently it is thought valuable enough that the Post decides it should buy the franchise and, by extension, the audience. My non-snarky point is that this is a new and different business model, and one with potentially sizable consequences for the Post as a news organization. And if I were a reporter from the old school, I might have questions about whether the lack of experience was made up for by the dedication in developing a saleable franchise.
(Re experience. I also wonder, by the way, if Larry Summers would not be a better policy maker, as distinguished from brilliant economist, had he not been the youngest tenured Harvard faculty member, and instead had gone and done some things in the real world first and then done economics second. I don't know enough about Mankiw's background to know if I'd think that about him as well, but I'm nearly through reading Justin Fox's excellent The Myth of the Efficient Market, and the sense of the individual economists involved leaves one with an unsettling sense of otherworldliness that could not be said of people such as Peter Bernstein, Henry Kaufman, George Soros, and others who, whatever their political and policy views, never saw the enterprise as being like string theory. If academic economics were imagined a bit less on the model of math and physics, in which you leave your mark young and in the purely abstract and abstruse, and a bit more on the model of practical wisdom, policy - as distinguished from the pure discipline of economics - might benefit. In a different way, that applies to policy entrepreneurs like Ezra Klein. You don't have to be old or middle aged - but some experience of the world, in something, somewhere, might have certain virtues.)
Second, then, the nature of some issues worth examining is that they do require examining the individual - in this case his style of journalism and the business model it implies. It's not about the arguments as such in any individual case, it's about the model that underlies it. Sensibility, and not merely sense, is worth examining. To examine it is not automatically to descend into snark, though I grant some of what I said above probably does.
Third, a number of commentators ask what makes that different from Anderson opining here at VC on, well, anything Anderson wants. Fair question. But last I looked no one was paying me anything here - this is a pure hobby, and Beloved as Our Commentators Are, I don't think of you as a saleable part of the Anderson franchise. If blogging at VC somehow furthers my academic career, such as it is, no one has told me about it. If I were getting paid money for this, I would go about things really, really differently. Expertise has its problems, and political rule by economic experts has many problems, but lack of expertise is also a problem.
What the Washington Post has paid for is not expertise - maybe it got it with Klein, but maybe not - point being that it bought it not for the expertise, but for the buzz, the audience. In that sense - and yes, this will sound rude - within the Post's business model, how it sees the Klein franchise, well, I'd suggest it sees him less as an op-ed columnist than as Robin Givens, as part of the Style section. It sees him as a political tastemaker with a new, web-based audience that the Post would like to purchase, but as far as content goes, it is about generating the little bits of controversy that someone like Givens generates when she opines on the dress styles of rich and famous women. If that sounds mean, well, think about it as a pure business transaction - content-free - on the part of both Klein and the Post, and tell me if there isn't at least a grain of truth to it.
I realize that sounds rude and snarky, and I suppose it it. The problem is, one of my General Interests is media business models, and very often that requires consideration of the model quite in the absence of the substance that it embodies. It is possible to appreciate and evaluate the free cash flow that Ezra Klein's ruminations presumably generate for the Post without consideration of their content, and I imagine that's exactly what someone on the business side of the Post did. Or at least, were I a WP shareholder, I hope someone did.
Apologies, then, to Mr. Klein insofar as I stepped over bounds of good taste. But I didn't think his WP column was in such great taste, either, and he and the Post, unlike what's said here, are making money off it, and sometimes understanding the underlying business model requires looking not at the arguments, but the position of the person making them.
Final update: I don't quite understand why so few commenters seem interested in addressing what I thought was the more interesting part of the discussion - what is the business model that the WP is pursuing here? I would have thought that the WP's media strategy here is the more interesting part of this. Someone want to tell me what the Post's strategy is? I've suggested that there's a new kind of dynamic here, of web policy entrepreneur developing a web-based community of readers, and then selling it to an established media outlet. That seems pretty interesting as a strategy for the entrepreneur and the media company.
The leader of an Arab Christian evangelical group filed suit against the city of Dearborn, Mich., claiming the city violated his First Amendment right to distribute literature on public property.
The incident occurred last month at the city's annual Arab International Festival, an event that attracted 300,000 visitors and has provided a favorite evangelizing venue for the group, Arabic Christian Perspective, whose members have attended for the past five years.
George Saieg, Arabic Christian Perspective's founder, says trouble started when he called the Dearborn police to let them know his group would be returning to the festival.
City police told Saieg that, unlike in previous years, his group would not be allowed to distribute material on the sidewalks, and that Arabic Christian Perspective could either rent a stand at the festival or be assigned a specific location at which it could distribute its literature.
1. If indeed the plaintiffs were trying to distribute material on public sidewalks that were generally open to the public, and
2. if the would-be leafleters merely wanted to distribute leaflets rather than solicit money, then
3. they would have a constitutional right to distribute leaflets -– something that they have a right do even in “nonpublic fora” such as airports, and certainly on “traditional public fora” such as sidewalks.
4. Even content-neutral bans on all distribution of materials would thus be unconstitutional.
5. Content-based bans that exclude “political literature” (if such a ban was indeed instituted here, which the Complaint alleges) would be even more clearly unconstitutional, even if they applied to all political literature, or all noncommercial literature, or all political and religious literature. Plaintiffs assert that this ban was not applied evenhandedly to all political literature; I don’t know if they’re correct, but even if they’re not, a ban on handing out all political literature is still unconstitutional.
6. Some content-neutral restrictions on leafleting that let people walk around and leaflet, but (say) limit the number of people in the walking group would be constitutional. But restrictions that require people to stay at fixed booths would generally not be constitutional, especially if the fixed places are in places that many festivalgoers wouldn’t visit (and if they cost money to rent).
7. The matter would be different if a group is putting on its own rally or some such, even in a public park or a public square, and gets a permit that would allow only its own members or invitees on the property on which the group itself is speaking. In such a situation, the property could in effect be temporarily privatized, so that the group can express its own views without the interference of others. That, for instance, is why parade organizers (who have a valid parade license) can generally select who can participate in the parade, even though the parade proceeds down a city street.
But if the group basically lets pretty much everyone use the sidewalk (as the Complaint alleges), and doesn't itself use the sidewalk for its own speech, then the sidewalk remains a traditional public forum or at worst (from the plaintiff-speakers' perspective) a nonpublic forum. Leafleting is generally constitutionally protected in both classes of forum. See Parks v. City of Columbus, a case from the federal circuit (the Sixth) in which the event took place.
UPDATE: This, by the way, is the case that Clayton Cramer blogged about yesterday, but I see no reason to treat it as a government action that is targeted at Christians because they're Christian (something that Cramer's post suggested). As best I can tell, even the plaintiffs aren't claiming that the city is discriminatorily enforcing the no-leafleting aspects of its policy; they do claim that some vendors were violating the ban on distributing "political paraphernalia," but it's not clear to me that the city even knew about that. The problem, it seems to me, is that the leafleting ban is unconstitutional, and even more clearly unconstitutional if limited to "political literature" — not that the city is selectively applying it to Christians.
All Korea Linguistic Association praises contribution of Great Leader Kim Il-Sung to reform of Korean alphabet! about 1 hour ago from web ...
Three-Revolution Red Flag Movement cheers production gains at Chagang-Do Cement Factory #2. about 2 hours ago from web ...
DPRK Weather Bureau predicts typhoons, monsoons, to strike US west coast in 2009. about 3 hours ago from web
Dear Leader Kim Jong-Il telegrams congratulations to Iranian President Mahmoud Ahmadinejad on successful reelection! about 4 hours ago from web ...
Central Procurator Roh Seng-Teh denounces US Supreme Court Judge Sonia Sotomayor as sellout to independence of Puerto Rican people! about 4 hours ago from web ...
Oh, and check out the graphics. Thanks to InstaPundit for the pointer.
UPDATE: It appears from that the Twitter feed might not be North Korea's idea; according to the story, "a KCNA spokesperson replied: 'We do not permit to appear KCNA on Twitter at all.'" (The story is about a different Twitter feed, but presumably this statement would apply to the feed I point to as well; KCNA is the "Korean Central News Agency," a North Korean government organ.)
The feed described in the Forbes story used actual KCNA headlines, and the one I pointed to has items that have that authentic KCNA ring. (I'd read some KCNA items in the past, so that's why the Twitter feed seemed authentic.) But it is likely that this particular feed is intentional parody, as opposed to the KCNA site, which is unintentional self-parody.
Amicus Briefs Supporting Petitions for Discretionary Review:
I continue my blogging of some excerpts from Mayer Brown's Federal Appellate Practice treatise. Today's item is also about amicus briefs, and in particular amicus briefs supporting petitions for discretionary review (such as petitions for certiorari) rather than amicus briefs on the merits:
In the Supreme Court, amicus briefs likely have a greater impact at the petition stage than at the merits stage. A recent study found that a “paid” (as opposed to in forma pauperis) certiorari petition’s chances of being granted rose from 2 percent with no amicus support, to approximately 20 percent with the support of one amicus, to more than 50 percent with the support of at least four amici. There is no direct counterpart to the certiorari stage in courts of appeals, whose jurisdiction is for the most part mandatory, but there is an obvious indirect counterpart: the stage at which a party petitions for hearing or rehearing en banc. Just as the Supreme Court exercises discretion in deciding whether to grant certiorari and hear a case on the merits, an en banc court of appeals exercises discretion in deciding whether to grant hearing or rehearing en banc and allow the case to be heard or reheard by the entire court.
The exercise of that discretion is guided by similar considerations in each instance. One such consideration is the importance of the question presented. Because amici can “communicate the importance of the case by their very presence,” and can communicate it even more effectively by filing persuasive briefs, there is reason to think that amicus briefs will significantly increase the likelihood of a grant of hearing or rehearing en banc in a court of appeals.
In fact, however, amicus filings supporting an en banc petition “are apparently rare.” There are likely a number of reasons for this. First, by local rule, some circuits restrict or prohibit unsolicited amicus filings at the en banc petition stage. Second, a petition for rehearing en banc must ordinarily be filed within 14 days of the entry of judgment, and that time frame may effectively preclude amicus participation in many cases. Third, a potential amicus may not wish to invest the necessary resources if the circuit that would hear or rehear the case en banc is one to which the potential amicus has little or no connection and thus one whose decision will have relatively little effect on its interests.
When those limiting circumstances are not present, however, filing an amicus brief in support of en banc consideration may turn out to be a wise investment of resources. That is particularly so because one can never count on further review by the Supreme Court, which in recent years has granted certiorari in fewer than 80 cases per term. One should never (or almost never) file an amicus brief in opposition to an en banc petition, however, because it will have the counterproductive effect of making the case appear more important than it otherwise would.
What is true of en banc petitions is equally true of other requests for discretionary review in a court of appeals. See generally Chapter 2, discussing appeals within the discretion of the court of appeals. Apart from its discretion to hear or rehear any case en banc, there are three types of interlocutory orders over which a court of appeals has discretionary jurisdiction: a grant or denial of class certification; a grant or denial of a motion to remand a class action to the state court from which it was removed; and an order in a civil action certified by the district court to involve a controlling question of law as to which there is substantial ground for difference of opinion and whose immediate resolution may materially advance the ultimate termination of the litigation. As with a petition for en banc hearing or rehearing, the filing of one or more amicus briefs in support of a petition for one of these other forms of discretionary review is likely to increase the likelihood that the petition will be granted by highlighting the importance of the question presented in the petition.
Practitioners should be aware, however, that the period for filing and deciding a petition for permission to appeal is extremely compressed. A petition for permission to appeal a class-certification order or an order certified under 28 U.S.C. § 1292(b) must be filed within 10 days of the order’s entry, and a petition for permission to appeal a class-action remand order must be filed within 7 days of the order’s entry. An answer in opposition to any such petition must be filed within 7 days after the petition is served. And because a petition for permission to appeal an order of one of these types does not stay proceedings in the district court, the court of appeals will ordinarily act on the petition promptly. In part for these reasons, amicus filings in support of petitions for permission to appeal are even rarer than amicus filings in support of petitions for en banc review. For the same reasons, if an amicus brief in support of a petition for permission to appeal is being contemplated, one should plan on filing the brief as soon as possible.
Neither the Federal Rules of Appellate Procedure nor the circuits’ local rules specifically address the filing of amicus briefs in connection with petitions for permission to appeal. Counsel would therefore be well advised to keep the brief very short and to file a motion for leave to file even if the parties consent. As discussed above, at least two circuits specify such requirements for submitting amicus briefs in support of en banc petitions.
If you're like me (and I know many of you are), you grew up reading the science fiction of the 1940's and 1950's, promising a quick and rapid expansion into the solar system, and not too long thereafter, the galaxy. Your young mind tried, and failed, to fathom the vastness of the empty gulfs between the stars. But there was one thing you knew: you wanted to go. During the incomprehensibly lengthy interval between you and adulthood, man would surely prepare itself to go to Mars and beyond, and you were going to be among the pioneers.
Four years before I was born, man walked on the moon for the first time, the most magnificent single feat our little tribe of East African Plains Apes has ever managed. Now we don't even do that. What happened to the dream? Government mismanagement, yes, but something more than that, too, some failure of imagination and will.
I hope that by the fiftieth anniversary some people, somewhere, will have regained the momentum that pushed mankind into our first tenative baby step towards the stars.
(I was one of the few people alive at the time in the developed world, I guess, who didn't see the walk on the moon. By some unaccountable fiasco, I was at Boy Scout camp, and we had gone on a fifty mile hike into the Sierra backcountry. How a boy scout camp would make such a mistake, I have no idea, but anyway, the one small step happened while I was getting sunburned in the Sierra Nevada.)
1. Heller recognized a right to keep and bear arms in self-defense, which logically presupposes some legal right to self-defense. Why would the Constitution let you keep an object for a certain purpose, when all use of the object for that purpose could be outlawed?
2. Heller often talks of a "right to self-defense" in contexts that suggest it is of constitutional stature, e.g., "That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen's right to self-defense is strong evidence that that is how the founding generation conceived of the right."
3. I suppose that a right to keep and bear arms in self-defense could coexist with a regime that allowed people only a right to self-defense using arms, and that banned unarmed self-defense, or self-defense with weapons that might not qualify as "arms" for Second Amendment purposes. But that wouldn't make a lot of sense: Why would you have a right to defend yourself — lethally, if necessary — using the most lethal weapons, and not using less lethal means? Sometimes the legal answer to some questions is "because that's the way we've always done things, even if you think that's illogical," but that answer can't work here, because tradition is on the side of a right to self-defense using whatever means come to hand.
4. But can an opinion by Justice Scalia, no fan of unenumerated rights, be read as recognizing such a right? Well, it does seem to read that way on its face; and beyond that, Justice Scalia has signalled an openness both to unenumerated rights when they have been broadly recognized for hundreds of years, and to this right in particular. See Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (four-Justice plurality authored by Justice Scalia) (suggesting that "the right to have a jury consider self-defense evidence" may be "fundamental" and supported by the "historical record"; such a right would make little sense if self-defense could be abolished as a defense).
[UPDATE:] 5. Likewise, even the narrowest test that the Court has recently announced for recognizing unenumerated rights — the Washington v. Glucksberg test, which focuses on whether a right is important and broadly recognized throughout America and throughout American history — cuts in favor of recognizing a right to self-defense. Now if one rejects unenumerated rights under the Due Process Clause, under the Privileges or Immunities Clause, and under the Ninth Amendment, then one would just be left with the right's being implied by the Second Amendment. (My sense is that nearly all Justices and nearly all major commentators accept some implicit rights, such as the right to expressive association that is seen as implicit in the First Amendment. The controversy arises when the implication gets too tenuous, and when the right is really being urged as an independently secured, albeit not expressly enumerated, right.)
6. At least some lower court judges — including some Reagan and Bush appointees — have shown a willingness to recognize a constitutional right to self-defense, even before the Second Amendment was recognized an individual right. Compare, e.g., Rowe v. DeBruyn, 17 F.3d 1047, 1054-56 (7th Cir. 1994) (Ripple, J., dissenting); id. at 1047 n.** (Cudahy, Flaum, Ripple, and Rovner, JJ., supporting rehearing en banc); DeCamp v. N.J. Dep’t of Corr., 902 A.2d 357, 361–62 (N.J. Super. Ct. App. Div. 2006) (endorsing Judge Ripple’s position and concluding that prisoners have self-defense rights, though without explicitly deciding whether those are federal constitutional rights or only state law rights); Isaac v. Engle, 646 F.2d 1129 (6th Cir. 1980) (en banc) (Merritt, J., dissenting), rev'd on other grounds, 456 U.S. 107 (1982) with Rowe, 17 F.3d at 1052-53 (7th Cir. 1994) (rejecting a constitutional right to self-defense generally, though the case involved only prisoner rights); White v. Arn, 788 F.2d 338, 347 (6th Cir. 1986) (rejecting a constitutional right to self-defense generally, though the only issue in the case was whether the defendant could be required to prove self-defense by a preponderance of the evidence, rather than requiring the prosecution to disprove self-defense beyond a reasonable doubt).
7. Likewise, at least two state courts have expressly read a state constitutional right to bear arms in self-defense provision as supporting a right to self-defense, at least with the constitutionally protected arms (though for the reasons mentioned in item 2, I don't see how the right would be so limited). See McKellar v. Mason, 159 So. 2d 700, 702 (La. Ct. App. 1964); State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139, 142–44 (W. Va. 1988).
8. If one counts all the states that have a right to bear arms for individual self-defense in the state constitution together with all the states that have a right to defend life expressly mentioned in the state constitution (and many state courts have indeed read such rights to defend life and property as securing constitutionally protected rights), one gets 44 of the 50 states — an important marker of the breadth of self-defense as a constitutionally secured right, and not just a common-law right. See generally Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. of L. & Pol. 399 (2007); see also this earlier post and this one.
None of these, standing alone, would be dispositive evidence that the courts are likely to recognize a constitutional right to self-defense in the wake of Heller. But put together, it seems to me they point strongly in that direction.
9. I should note, though, that this surely doesn't mean a constitutional right to use deadly force in all circumstances in which one is defending oneself. Historical limitations on this right — either broadly accepted, or at least accepted by a substantial minority of states — are likely to be upheld, especially if history and tradition is a large part of the basis for recognizing the right in the first place.
Thus, a rule that one can only use deadly force to defend oneself against threats of death, serious bodily injury, rape, kidnapping, and a few other very serious threats would likely be constitutional (even though many states also allow use of deadly force to defend against robbery and in some situations burglary). Likewise, the "duty to retreat," which is to say the principle that deadly force can only be used in self-defense if it's genuinely necessary, in that no safe avenue of retreat is available, is likely to be constitutional, too, because it has long been recognized in at least a substantial minority of states. There may be other examples as well. My point is that a federal constitutional right to self-defense likely exists, especially in the wake of Heller. But it is not unlimited, and is likely to be strongest precisely where there's a broad and deep common-law and statutory tradition of recognizing such a right.
[UPDATE:] This might mean that the constitutional right to self-defense is only rarely relevant to a judicial decision. But that might simply reflect how broadly and deeply accepted the right is. If legislatures and state courts consistently honor a constitutional right to self-defense — because it's so deeply embedded in American moral thinking and the American legal tradition — then indeed there'll almost never be a case in which a governmental decision is struck down based on a constitutional right to self-defense. Nothing inherently wrong with that.
Joint Press Release from City of Cambridge, Cambridge PD, Middlesex County D.A., and Prof. Gates
The City of Cambridge and the Cambridge Police Department have recommended to the Middlesex County District Attorney that the criminal charge against Professor Gates not proceed. Therefore, in the interests of justice, the Middlesex County District Attorney's Office has agreed to enter a nolle prosequi in this matter.
The City of Cambridge, the Cambridge Police Department, and Professor Gates acknowledge that the incident of July 16, 2009 was regrettable and unfortunate. This incident should not be viewed as one that demeans the character and reputation of Professor Gates or the character of the Cambridge Police Department. All parties agree that this is a just resolution to an unfortunate set of circumstances.
What Difference Does it Make Whether Ordinary People are Informed About Judicial Affairs?
Our evidence is that ordinary people know far more about the Supreme Court than has heretofore been thought. [For those of you interested in the statistics see the Journal of Politics article – http://polisci.wustl.edu/sub_page.php?s=3&m=0&d=7 .]
And we suggest that the type of knowledge people hold is more valuable for politics than the type of information people on which most people are ignorant. In my view, it is more useful to know that baseball is played for nine innings, is refereed by an impartial umpire, and with three strikes one is out, than to know "who's on first," who hits the most, and, more recently, who is currently accused of using performance enhancing drugs.
But why is political knowledge important? This question has obvious and not-so-obvious answers.
First, and obviously, citizens of the U.S. are constituents of the Supreme Court and have the right to expect some degree of accountability from that institution. Without doubt, the accountability of individual justices is minuscule; but institutional accountability may not be so small. Citizens who are unhappy with the Supreme Court can properly petition their legislative representatives, for instance, to change the jurisdiction of the institution, removing some types of cases from the Court’s docket. Being knowledgeable about the kinds of policies made by the Supreme Court enhances this accountability function, and is a natural part of democratic politics.
A second, not-so-obvious concomitant is associated with political knowledge. It has to do with the legitimacy of the Supreme Court, which requires a digression.
Since the founding of the American republic, politicians and scholars have been impressed with the fragility of judicial power. When it comes to securing compliance with their decisions, courts are said to have neither the power of the purse – the ability to raise and expropriate money to encourage compliance – nor the power of the “sword” – the ability to coerce compliance. In the absence of these tools, courts have only a single form of political capital: legitimacy.
Compliance with court decisions is contingent upon judicial institutions being considered legitimate. Legitimacy is a normative concept, basically meaning that an institution is acting appropriately and correctly, within its mandate. Generally speaking, a great deal of social science research has shown that people obey law more out of a felt normative compunction deriving from legitimacy than from instrumental calculations of costs and benefits.
As a consequence, political scientists have paid considerable attention to the legitimacy of courts, often substituting the phrase “diffuse support” for judgments of legitimacy. Diffuse support is a fundamental commitment to an institution and a willingness to support the institution that extends beyond mere satisfaction with the performance of the institution at the moment (“specific support”).
The idea here is that institutions – especially courts – must be free to make decisions in opposition to the preferences of the majority; indeed, it is specifically a function of courts (at least in the American cases, where the judiciary is vested with the power of having the last say on the meaning of the constitution – judicial review) to overturn the actions of the majority when those actions infringe upon the fundamental rights of minorities. Courts must on occasion make hard decisions that are greatly displeasing to the majority, as in freeing obvious criminals due to violations of due process, restraining the majority from imposing its religious beliefs on the entire society, and spying on dissenters and malcontents who threaten the political security of the majority. If courts are dependent upon majority approval for their decisions to be accepted, then one of the most important political functions of courts is in jeopardy.
Political scientists routinely measure the legitimacy of the U.S. Supreme Court via public opinion polls. Implicit in this approach, of course, is the fundamental assumption that the views of ordinary people matter. Many judges, lawyers, and legal scholars believe that elite opinion should dominate and that ordinary people are insufficiently well informed to have meaningful opinions of courts and judges. As it turns out, the empirical evidence is that the American people do indeed hold meaningful attitudes toward the U.S. Supreme Court.
The first conclusion supported by these studies is that the U.S. Supreme Court enjoys a very high level of institutional support. Big majorities of the American people do not want to do away with their Supreme Court; roughly a majority want to protect the Court’s jurisdiction; and sizable majorities trust the Court. These data do not indicate unanimity; but they do indicate that the institution enjoys a significant bedrock of support among the American people.
A second important conclusion is that there has been little diminution in support for the U.S. Supreme Court over the past 25 or so years. To the extent that institutional support is not contingent upon performance satisfaction, one would not expect short-term changes in loyalty. In fact, we observe practically none.
One important exception to this conclusion must be noted: 2001, a time at which the U.S. Supreme Court seemed to enjoy a slight upward spike in its legitimacy. As it turns out, that particular survey, conducted around the time the U.S. Supreme Court decided the 2000 presidential election via its decision in Bush v. Gore, has been the object of considerable study and has generated some important conclusions about how support is formed and maintained.
Gibson, Caldeira, and Spence (British Journal of Political Science 2003, reprinted as an appendix to Citizens, Courts, and Confirmations – see http://press.princeton.edu/titles/8940.html; the book is also summarized at http://www.miller-mccune.com/politics/may-it-diminish-the-court-1193 ) discovered that the legitimacy of the U.S. Supreme Court was not harmed by its decision in Bush v. Gore. Indeed, while it is not surprising that support for the Court rose among Republicans – the winners in the decision – our findings indicate that support did not decline among Democrats. Because of the reservoir of goodwill enjoyed by the Supreme Court, people were predisposed to view the decision as grounded in law, not politics, and they therefore accepted it. The 2000 presidential election controversy provides an outstanding example of the utility of institutional legitimacy.
But, it might be asked, what is the connection between judicial knowledge and institutional support?
The most important consequence of political knowledge has been identified in the research reported in Citizens, Courts, Confirmations: Those who are more knowledgeable about courts tend to extend more legitimacy to them. Indeed, this seems to be a tendency not at all limited to the United States (see Gibson, Caldeira, and Baird, American Political Science Review, 1998 for cross-national evidence).
Caldeira and I posit that this “to know them is to love them” effect is largely a function of the knowledgeable being exposed to the highly legitimizing symbols of judicial power: the black robe, the privileged form of address (“your honor”), the deference, even the temple-like building housing most courts. When citizens pay attention to courts, they learn information about them, but, because they are also exposed to these quite powerful legitimizing symbols, the legitimacy of the institution is enhanced. We refer to this as a “positivity bias” in the sense that exposure to court almost inevitably enhances rather than subtracts from legitimacy. Given the positivity bias, is it any wonder that some are positing that the Supreme Court is “bullet-proof,” and therefore can get away with virtually any policy, so long as it is draped in the appropriate symbolic shroud.
Thus, having knowledgeable citizens is valuable to a polity in two respects. First, citizens can effectively play the role assigned to them by democratic theory. Second, in the case of courts, exposure enhances institutional legitimacy because citizens are exposed to powerful legitimizing symbols.
Buzz Aldrin on the Need for Private Property Rights in Space:
Before the 40th anniversary of the first moon landing ends, it's worth noting that Buzz Aldrin, the second man to walk on the Moon, is a leading advocate of allowing private property rights in space. I blogged about some of his ideas in this 2007 post, as well as considering the more general case for private property beyond Earth. Unfortunately, Aldrin's article on the subject (coauthored with Taylor Dinerman) no longer seems to be available online (though I excerpted some parts in the above post). This Boston Globe article provides a good summary of proposals to establish private property in space.
The apparent trigger for this assault on a group that represents the global gold standard in human rights monitoring, analysis, and advocacy, was a visit by HRW's Middle East-North Africa director, Sarah Lee Whitson, to the Saudi kingdom. I happened to find myself on a panel at The Century Foundation discussing the Middle East with Whitson just days before this storm broke — I went back and watched tapes of that panel discussion. To accuse Whitson of being soft on the Saudis or somehow singling out Israel for criticism is quite astonishing as I'm sure you'll agree if you take ten minutes to listen to her presentation — of that, more in a moment.
Okay, so I listened. If you have any illusions about HRW's neutrality or objectivity re Israel and its neighbors, you should too.
Whitson had a fifteen-minute presentation on human rights in the Middle East. She spends approximately three minutes and thirty-five seconds describing Israel's alleged violations of international law and human rights. Her presentation of the relevant facts and relevant international law is tendentious in the extreme [Gaza, with not a single Israeli soldier or civilian, is "occupied?" Israel "transferred" its population to the West Bank? Using white phosphorous to illuminate targets violates international law?]. She accuses Israel of apartheid. She consistently refers to the wars in Lebanon and Gaza as "Israel's wars," even though, obviously, they were fought against foes that were launching cross-border attacks against Israel's civilian population and which declare themselves to be at war with Israel. She accuses Israel of war crimes, including "indiscriminate" bombing of South Lebanon, which, given the low civilian casualty in the second Lebanon War--even Hezbollah puts the total in the high hundreds, while Israel says low hundreds, out of a population of hundreds of thousands--from a nation with one of the most powerful air forces in the world, is absurd. If Israel had engaged in indiscriminate bombing, casualties would have been in the tens of thousands. I expect foes of Israel to engage in such hyperbole, but Whitson is supposed to be an "objective" human rights advocate.
And after Whitson's several minute-long exhaustive survey of Israel's alleged sins, she spends all of approximately twelve seconds on Hamas and Hezbollah, and this is the total of what she said: "of course there are also violations of international humanitarian law by the armed groups that are fighting Israel, namely Hamas and Hezbollah, but of course there are armed groups that have been in conflict with them [sorry this isn't coherent--ed.]. And that's something Human Rights Watch has documented." That's it.
After the exhaustive list of Israel's alleged crimes, no mention of
Hamas's suicide murders
Hezbollah and Hamas's indiscriminate (really indiscriminate) lobbing of missiles into Israel
H & H's use of human shields, use of civilian establishments for military purposes, and failure to wear military uniforms
the kidnapping and murder of Israeli soldiers
Hamas's reign of terror against Christian Palestinians
Hezbollah's threat to democracy in Lebanon
Syrian and Iranian state sponsorship of terrorism
Hamas's murder of Fatah supporters
and so forth and so on.
She then spends several more minutes criticizing U.S. aid to Israel, Egypt, and Jordan, with additional specific criticisms of Israel thrown in, and suggests the U.S. should be nicer to Hamas and less supportive of Fatah.
And note that this was a speech to an American audience. God knows what she said in Saudi Arabia. And God knows what she thinks privately, as opposed to what she reveals publicly. Somehow Levy hasn't persuaded me that this speech shows that Whitson doesn't single out Israel for criticism in the U.S., much less when she's on a fundraising trip to Saudi Arabia.
Here's the police report. And here's an article from the Boston Globe detailing Gates's accusations of racism. Draw your own conclusions [but note that we have a full statement from the cops, and we don't have Gates's side of the story. Here is Gates's version of events. FWIW, even if the cops' story is 100% accurate, I don't see what the point of arresting Gates was. Yelling at a cop isn't a crime, Gates clearly posed no threat to anyone, and the cop should have either used his training to defuse the situation or just walked away--he already knew that Gates wasn't a burglar, which was the original reason for the cops' presence.]
UPDATE: Personally, whenever I encounter cops in a potentially adversarial situation, e.g., during a traffic stop, I become absurdly obsequious, precisely because I know they have the power to arbitrarily arrest me if I piss them off. Law professor or not, the power dynamics in a confrontation with cops is not in your favor.
Two Gentlemen of Verona, at the Colorado Shakespeare Festival:
The Colorado Shakespeare Festival's production of Two Gentlemen of Verona, which opened Sunday night, might be summarized by a line from Dickens: "It was the best of times. It was the worst of times." That is, the audience loved it, and I couldn't stand it.
Two Gentlemen was the first of Shakespeare's comedies, incorporating many elements that he would use in later works. Each of the two gentlemen friends is pursuing a romance, but things get disordered and complicated. One of the girlfriends disguises herself as a man, and learns some unpleasant truths about her beloved. There is a clownish servant whose main job is double-entendres. Everybody ends up in a forest, and then everything turns out alright, with the miscreants forgiven, virtue rewarded, and romances properly resolved.
A straightforward performance of a Shakespeare play is unthinkable these days, so every producer has to think up a novel interpretation. Here, TGV is turned into a play-within-a-play. We watch a "rehearsal" of TGV, with the characters wearing partial costumes on top of their street clothes, using rough props, and moving about a partially-constructed set.
On a physical level, this works very well. The incomplete costumes and set are intriguing.
The problem is the script of the outer play. First all, it consumes a huge amount of time, necessitating enormous cuts in TGV. The cuts seriously impede the development of the main characters, so that their various emotional changes over the course of TGV sometimes seem to have little or no basis.
Second, the replacement of so much Shakespearean dialogue with the dialogue from the outer play is a very bad trade. The outer play--whose plot is a conflict between the director and two actors--could easily be a mediocre and instantly-forgotten television situation comedy.
As a mixture of sit-com and Shakespeare, the outer play does not come close to the elegance, wit, or good jokes of the Gilligan's Island productions of Hamlet or Cleopatra. Indeed, it's not even as good as the Hey Arnold episode where the class puts on Romeo & Juliet.
When TGV itself is actually allowed to go forward, the performances are solid and engaging. Unfortunately, the frequent intrusions of the outer play into the "rehearsal" break the dramatic momentum of a very good play, and jolt the audience back into a lousy play.
"Over the top" is a mild description of the production’s frequent use of banal jokes and other simplistic devices. Act II (just before intermission) and the play itself both end with "The Hokey Pokey." And in this performance, The Hokey Pokey really is what it's all about. The play that you will see is not really Two Gentlemen of Verona. The experience is akin to watching Masterpiece Theater on a television set which automatically switches to a bad episode Hee Haw at random intervals.
There’s obviously an audience for such a production, since the preview night audience adored the show, laughing heartily and applauding with gusto.
In any case, this year’s TGV is not the norm at the Colorado Shakespeare Festival, which more typically stages actual productions of the play whose name is on the ticket, and which almost always produces at least one outstanding play every summer.
This summer, the other plays in repertory at the CSF’s two stages at the University of Colorado at Boulder are Hamlet, Much Ado about Nothing (set in Barcelona in 1934), and To Kill a Mockingbird.
I often warn my students about literary references -- whether high culture or low -- in legal writing. Sometimes, if they're just right, they can make your point more vivid and persuasive (see here for an example). But sometimes they just seem forced, or are just not very apt. And my sense is that people are often so tempted to use what strikes them as a cute and engaging reference that they don't think critically about whether it works or not. Here is an example, from a brief I just read:
The mischaracterization of this claim as a "freedom of speech" claim and the use of the civil procedure tool "Special Motion to Strike" is about as applicable to this claim as Cinderella's glass slipper was befitting the ugliest of her evil stepsisters.
I'm not sure that really adds much to the argument.
Mark Cuban has had a hard time buying an NBA championship for his Dallas Mavericks. It seems he's had more success fighting the SEC. As noted by Professor Bainbridge, it appears Cuban has beaten back the insider trading charges the SEC filed against him (thogh the SEC could well try again).
Nate Silver of FiveThirtyEight is offering a bet to those who do not believe human activity is contributing to a gradual warming of the atmosphere. [Hat tip: Legal Planet] Given that quite a few climate skeptics frequent this site — and tend to turn the comment thread following every climate-related policy post into a debate on the existence of global climate change — I figured at least one would take his bet.
UPDATE: Tom Maguire has interesting responses here and here.
The Recurring Question of Chevron Deference & Agency Jurisdiction:
Unless you’re an avid follower of federal energy law, there’s no reason you would have noticed the U.S. Court of Appeals for District of Columbia’s recent decision in Connecticut Department of Public Utility Control v. Federal Energy Regulatory Commission. In this case, a panel held that the Federal Energy Regulatory Commission (FERC) has jurisdiction to review the installed capacity requirement set by a regional transmission organization that administers regional electricity transmission. Those not focused on energy regulation (myself included) might be tempted to ask, “Who cares?” But not so fast. CDPUC v. FERC raised an interesting an important administrative law question that has bedeviled and divided federal appellate courts for years: Whether courts should grant Chevron deference to agency statutory interpretations that implicate the an agency’s regulatory jurisdiction.
In CDPUC v. FERC the D.C. Circuit answered this question in the affirmative. “We afford Chevron deference to the Commission’s assertion of jurisdiction,” the panel stated with no elaboration, citing to a 1994 D.C. Circuit decision and Chevron itself. What the panel failed to note, is that several other circuits disagree with this approach. Indeed, the D.C. Circuit itself has not always taken this view, and the U.S. Supreme Court has not addressed the question directly – though Justices Scalia and Brennan debated the issue in Mississippi Power & Light Co. v. Mississippi ex rel. Moore.
The Second, Third, Fourth and Ninth Circuits have all held that Chevron deference should apply in the jurisdictional context. The Seventh and Federal Circuits have gone the other way. Just this past March, in Tafas v. Doll, the Federal Circuit reiterated its position that “an agency's determination of the scope of its own authority is not entitled to Chevron deference.” Two weeks ago, the Federal Circuit agreed to rehearTafas v. Doll en banc.
The D.C. Circuit, like the Eighth Circuit, has been less consistent on the subject. In Oklahoma Natural Gas Co. v. FERC -- the case relied upon in CPUC v. FERC -- the D.C. Circuit declared it would “review FERC's interpretation of its authority to exercise jurisdiction over transportation with the familiar Chevron framework in mind.” Yet in some prior cases, the D.C. Circuit has expressly declined to defer to agency interpretations of statutory provisions defining the scope of an agency’s jurisdiction. As the court explained in its 1987 decision in ACLU v. FCC:
it seems highly unlikely that a responsible Congress would implicitly delegate to an agency the power to define the scope of its own power. When an agency's assertion of power into new areas is under attack, therefore, courts should perform a close and searching analysis of congressional intent, remaining skeptical of the proposition that Congress did not speak to such a fundamental issue.
My own view is that the D.C. Circuit had it right in 1987 is wrong today. [This also, interestingly enough, places me on the side of Justice Brennan in Mississippi Power & Light.] As Nathan Sales and I argue in an article forthcoming in the University of Illinois Law Review, “The Rest Is Silence: Chevron Deference, Agency Jurisdiction and Statutory Silences,” courts should not defer to an agency’s statutory interpretations that implicates the existence or scope of an agency’s jurisdiction. We argue that such deference is not required by existing precedent, is inconsistent with the Chevron doctrine as currently understood, and is also unwise. A draft and abstract are on SSRN here; the article will be published later this year.
I do not know whether CPUC v. FERC is a good vehicle for presenting this issue to the Supreme Court. Nor do I know how much the Federal Circuit will focus on this specific question when it rehears Tafas v. Doll. But I do know this is an important question of administrative law, and one the Supreme Court will, sooner or later, have to address.
Belief in Moon landing conspiracy theories may not be completely harmless. For example, it could diminish support for future space exploration efforts. In any event, it is yet another example of widespread political ignorance and irrationality.
UPDATE: I suppose I should clarify that my original post was not intended to express undifferentiated support for all government space exploration efforts. Some such efforts are worth the cost; others are not. Rather, I merely wanted to make the narrower point that public debate over the space program would be better if it were not influenced by belief in ridiculous conspiracy theories.
Where do I Buy Japanese Train Tickets on the Internet?
This is a fairly simple bleg with, I think, a self-explanatory title. I need to find a website where I can buy Japanese train tickets and/or a Japan Rail pass on the internet, preferably with a relative minimum of hassle. Thanks!
UPDATE: Thanks so much to all the readers who provided helpful suggestions.
I thought it would be worthwhile to blog some excerpts from the treatise this week, chiefly about amicus briefs and about oral arguments. These aren't necessarily the most important parts of federal appellate practice, but I have to admit that many important parts are not necessarily the most exciting to read about, unless you actually need them for a brief you're working on. So I tried to compromise by finding something generally interesting yet still relatively useful.
Today, I start with a question that has sometimes arisen in discussions here: Why should anyone file an amicus brief, and how should people decide whether to spend their time and money doing it? Here's the discussion, from chapter 12.2 of Federal Appellate Practice (some paragraph breaks added):
There are many different types of amicus briefs that persons or organizations want to submit to a court of appeals. An amicus sometimes wants to file a brief because it lacks confidence in the party’s ability to address the core issues in the case accurately and competently. In that circumstance, an amicus brief is similar to a party’s brief, addressing the same issues as the party and advancing essentially the same points, although it may not include some of the required components of a party’s brief (for example, a statement of the case and, in many instances, a statement of the facts).
Another type of amicus brief is filed simply “to enable the officers of trade associations to show their members that they are on the ball.” In that circumstance, as Justice Scalia has put it with characteristic bluntness, “it really does not matter what the amicus brief says.”
Ideally, however, an amicus will attempt to say something that is of use to the court and different from what the party says. Amicus briefs of this type commonly fall into one of four categories.
First, there is an infinite variety of circumstances in which an amicus brief can provide extra-record factual information that may be of assistance to the court in understanding the background for the issues. An amicus brief can collect relevant facts or data that do not appear in the parties’ briefs or in the record. This kind of brief enlarges the factual context in which the court will resolve the issues, beyond the record made before the trial court or administrative agency.
For example, an amicus brief might provide information about religious practices in a free exercise case, a university’s admissions program in an equal protection case, a tribe’s customs in a case involving Indian property, or endangered species in an environmental case. For an amicus brief of that type to be given weight by the court, “the nonrecord facts relied upon should have the ring of truth on their face”; an amicus risks losing credibility “if it goes too far in setting forth nonrecord material as indisputably true.” In addition to providing factual information of which the amicus has special knowledge, amicus briefs may collect relevant facts or data that are publicly available — for example, the legal rules or procedures that govern in different jurisdictions.
Second, an amicus brief can provide the views of experts on an issue with which the court will have to grapple in deciding the question presented. Such a brief “can present information that may help clarify the issues in much the same way that expert testimony assists courts to make a more fully informed decision.” For example, an amicus brief may provide the views of legal historians in a case involving a constitutional provision whose interpretation is likely to turn on historical practice or the views of economists in a case involving an antitrust issue whose resolution is likely to turn on economic theory.
In cases of that type, the parties themselves are unlikely to possess the requisite expertise; generalist judges are likely to benefit from the expertise of the amicus; and the judges are more likely to find the views advanced credible than if they had been set forth by the (nonexpert) party whom the amicus is supporting. Some have argued, however, that judges are too willing to find this type of submission credible, because most authors of amicus briefs are guided, not by “the scientific norms of neutrality and objectivity,” but by “the ideology of advocacy.”
Third, an amicus brief can explain the practical effects of a particular outcome on individuals or groups not before the court. For example, an amicus brief may explain how the decision in a school case will affect student achievement, how the decision in an environmental case will affect water distribution, how the decision in a tax case will affect a certain category of taxpayers, or how the decision in an international-trade case will affect a domestic industry.
Courts often are influenced by the practical consequences of adopting one or another of the legal rules under consideration. That is particularly true in “highly technical” cases in which decisions by generalist judges may have “a tremendous impact on people and institutions in the real world.” It is also true in nontechnical cases in which there is no clear constitutional or statutory text that directly answers the question presented and judges thus have more leeway in taking practical considerations into account.
Fourth, an amicus brief can suggest an alternative legal ground for deciding the case. The alternative ground may be narrower. For example, while the party may want to achieve a big, symbolic victory by having a statute declared unconstitutional, the amicus may be able to persuade the court that the party should prevail because the statute, even if constitutional, does not reach the conduct at issue. The alternative ground may be broader. For example, while the party may be seeking to distinguish the decision on which the district court or agency relied, the amicus may believe that there is no plausible basis for distinguishing it and that the only hope for success is to argue that the decision should be overruled. Or the alternative ground may simply be different. For example, the amicus may have what it considers to be a better argument for obtaining the same relief.
In some cases an amicus will advance an alternative argument because it believes that the argument has a better chance of success; in some cases it will do so because its interests would be better served if the court adopted the amicus’s own legal theory rather than the party’s. If the amicus is supporting the appellant or petitioner and the alternative argument was not raised below, it may not be feasible for the amicus to raise the argument, because a court of appeals generally will not reverse a judgment on a ground not raised below. If the amicus is supporting the appellee or respondent, however, the party’s failure to raise the argument below ordinarily will not be an obstacle, because a court of appeals can generally affirm a judgment on any ground that has a basis in the law and the record.
One other type of amicus brief bears mention: a brief filed by the government, federal or state, or a government agency as amicus curiae. This type of brief does not have to fit within one of the four categories described above. The government is not an ordinary litigant, and its goal, at least as an ideal, is not to win cases but to ensure that the law is correctly interpreted and that justice is done. For that reason alone, a brief that merely sets forth the government’s views on a particular issue is likely to be deemed helpful by a court, especially when the brief is filed by the United States. That is why, as discussed in the following section, the Federal Rules of Appellate Procedure extend to the federal and state governments the right to submit amicus briefs. A government amicus brief, therefore, may provide powerful support for a party, even if the brief merely endorses the position that the party has staked out.
Of course, an amicus brief filed by the government may also fit within one of the categories described above. A government or government agency may have unique access to relevant facts or data; it may have expertise developed through administering a particular law; it may be able to explain the practical consequences of adopting a particular legal rule (for example, on the foreign-policy interests of the United States); or it may wish to offer an alternative basis for deciding the case before the court.
Scott and Taylor are Stanford professors jointly affiliated with the Hoover Institution there (as I'm pleased to say I am as well; Go Hoover!) and this is must reading for those trying to contemplate the form of future financial industry regulation. (I won't say much more, I'm on lite-blogging status and am not supposed to be doing this computer work, but this article is must-read.)
As I've occasionally noted here, credit default swaps (including the perverse incentives they can create, such as the "empty creditor" problem) tend to receive most of the attention in the vexed question of the contribution of derivatives to the crisis. Many of the difficulties of CDS are real, of course. Still, in many respects the leverage combined with valuation-stymying complexity created by the credit derivatives layered on-top of the original asset securitization, rather than CDSs, is the larger regulatory problem:
Why are these toxic assets so difficult to deal with? We believe their sheer complexity is the core problem and that only increased transparency will unleash the market mechanisms needed to clean them up.
The bulk of toxic assets are based on residential mortgage-backed securities (RMBS), in which thousands of mortgages were gathered into mortgage pools. The returns on these pools were then sliced into a hierarchy of "tranches" that were sold to investors as separate classes of securities. The most senior tranches, rated AAA, received the lowest returns, and then they went down the line to lower ratings and finally to the unrated "equity" tranches at the bottom.
But the process didn't stop there. Some of the tranches from one mortgage pool were combined with tranches from other mortgage pools, resulting in Collateralized Mortgage Obligations (CMO). Other tranches were combined with tranches from completely different types of pools, based on commercial mortgages, auto loans, student loans, credit card receivables, small business loans, and even corporate loans that had been combined into Collateralized Loan Obligations (CLO). The result was a highly heterogeneous mixture of debt securities called Collateralized Debt Obligations (CDO). The tranches of the CDOs could then be combined with other CDOs, resulting in CDO2.
Each time these tranches were mixed together with other tranches in a new pool, the securities became more complex. Assume a hypothetical CDO2 held 100 CLOs, each holding 250 corporate loans -- then we would need information on 25,000 underlying loans to determine the value of the security. But assume the CDO2 held 100 CDOs each holding 100 RMBS comprising a mere 2,000 mortgages -- the number now rises to 20 million!
The valuation is essentially impossible to contemplate, and it exceedingly doubtful that in fact anyone made a serious effort at fundamental valuation, as distinguished from taking some (bluntly: circle-jerk) market "proxy" in the hope that someone else had done it. But the sheer amount of leverage involved is also a huge issue - the original securitization might rest on some at least contemplable risk level in terms of default, but the top level derivatives might lose close to 100% of their value on tiny increases in the default rates. Consider this specific example:
To better understand the magnitude of the problem and to find solutions, we examined the details of several CDOs using data obtained from SecondMarket, a firm specializing in illiquid assets. One example is a $1 billion CDO2 created by a large bank in 2005. It had 173 investments in tranches issued by other pools: 130 CDOs, and also 43 CLOs each composed of hundreds of corporate loans. It issued $975 million of four AAA tranches, and three subordinate tranches of $55 million. The AAA tranches were bought by banks and the subordinate tranches mostly by hedge funds.
Two of the 173 investments held by this CDO2 were in tranches from another billion-dollar CDO -- created by another bank earlier in 2005 -- which was composed mainly of 155 MBS tranches and 40 CDOs. Two of these 155 MBS tranches were from a $1 billion RMBS pool created in 2004 by a large investment bank, composed of almost 7,000 mortgage loans (90% subprime). That RMBS issued $865 million of AAA notes, about half of which were purchased by Fannie Mae and Freddie Mac and the rest by a variety of banks, insurance companies, pension funds and money managers. About 1,800 of the 7,000 mortgages still remain in the pool, with a current delinquency rate of about 20%.
With so much complexity, and uncertainty about future performance, it is not surprising that the securities are difficult to price and that trading dried up. Without market prices, valuation on the books of banks is suspect and counterparties are reluctant to deal with each other.
The policy response to this problem has been circuitous. The Federal Reserve originally saw the problem as a lack of liquidity in the banking system, and beginning in late 2007 flooded the market with liquidity through new lending facilities. It had very limited success, as banks were still disinclined to buy or trade such securities or take them as collateral. Credit spreads remained higher than normal. In September 2008 credit spreads skyrocketed and credit markets froze. By then it was clear that the problem was not liquidity, but rather the insolvency risks of counterparties with large holdings of toxic assets on their books.
If you saw the essential crisis as one of liquidity, this meant that Fed-injected funds into the markets would allow the necessary breathing space for market participants to discover and incorporate new information that, in a true liquidity crisis, would show that things were not as bad as feared and the panic could stop. A liquidity crisis, in other words, is a crisis of information. Full information will either show investors (or depositors) that the institution is not in trouble, or that a guarantor stands behind it. Full information stops the panic; the injection of funds is to provide a space for full information to develop.
A solvency crisis, by contrast, is what happens when you have full information - and it turns out that, alas, the panic and investor rush for the exits were justified, because the information indicates that the assets were not properly valued and they really are not worth what the prices indicated in the absence of full information.
As Taylor has cogently argued in his short book on the crisis (published by Hoover Press in a brilliant marketing move to get a short, pithy, blunt, highly informed book out fast), the errors of the US government in crisis management - beyond the original sin of loose money - have largely been an insistence on seeing the crisis as a liquidity crisis rather than a solvency crisis. (Of course, the analytic distinction is not, in real life, fast and hard: a true liquidity crisis can turn into a solvency crisis and vice-versa.)
(It is noteworthy that the new Treasury Department White Paper on financial regulation reform is studiously silent and agnostic on the issue of liquidity versus solvency - apparently on the view that although the distinction mattered perhaps in the management of the crisis, in the distinct matter of future financial reform, it doesn't, presumably because if you enact the White Paper's reforms, you won't have crises requiring you to decide between them. Or at least, regulatory policy ex ante does not need to choose between them before there is a crisis and a panic or market freezeup. I'm not sure it is such a good idea to avoid expressing a view on something so fundamental to crisis response, however, even if regulatory policy ex ante would be approximately the same.)
Scott and Taylor call for mandatory transparency in order to address the valuation and information problems. They call for transparency via a mandatory data base that would contain the basic information necessary for third party valuation:
While the original MBS pools were often Securities and Exchange Commission (SEC) registered public offerings with considerable detail, CDOs were sold in private placements with confidentiality agreements. Moreover, the nature of the securitization process has made it extremely difficult to determine and follow losses and increasing risk from one tranche and pool to another, and to reach the information about the original borrowers that is needed to estimate future cash flows and price.
This account makes it clear why transparency is so important. To deal with the problem, issuers of asset-backed securities should provide extensive detail in a uniform format about the composition of the original pools and their subsequent structure and performance, whether they were sold as SEC-registered offerings or private placements. By creating a centralized database with this information, the pricing process for the toxic assets becomes possible. Making such a database a reality will restart private securitization markets and will do more for the recovery of the economy than yet another redesign of administrative agency structures. If issuers are not forthcoming, then they should be required to file the information publicly with the SEC.
My own tentative view is that this is important, but probably not enough in terms of either addressing complexity or leverage.
Complexity is a problem that is only partly addressed by transparency. Just as many have called for CDS to go onto public exchanges, I would say that there is a pretty good argument - not perhaps dispositive, but one I incline to currently, absent some strong counterarguments - for requiring the same of the leveraged credit derivatives, to provide for mandatory disclosure of counterparty relationships, standardization of contracts and terms, mandatory exchange trading, and related measures that would address not just disclosure and transparency, but complexity as such, all by itself. I say this as someone who believes firmly, by the way, that a huge risk in new future regulation of financial services is over-regulation and the stifling of innovation through lack of credit.
(Actually, my biggest fear today has evolved a step further, to a fear not so much that credit, and the rewards it can bring, will be unnecessarily stifled - but instead that our rapidly developing system of crony capitalism will cause credit to flow to politically favored parties, always in the name of high-minded things, naturally, but cronyism just the same and bleeding away vital investment funds from progress and innovation, but that's a post for another day.)
There is then a further question of whether the degrees of leverage in these credit derivatives should be directly constrained by regulation. That question raises very different issues, mostly ones of moral hazard and the ability of regulators to decide better than the market how much credit is optimal, and whether we have embraced the too-big-to-fail view enshrined in the Treasury White Paper. If we have truly accepted too-big-to-fail for institutions outside of insured depository institutions, then regulation of leverage directly is hard to avoid, because the effect is dangerously to skew the market mechanisms for deciding how much credit is too much credit. If we have not, and are willing to contemplate the failure of large financial institutions - as I certainly think we should - then the market ought to be able, in the presence of full, transparent, and uniformly presented information, be able to police its own leverage as between greed and fear.
My fundamental point here is that complexity is something not completely remedied by transparency. It retains characteristics and risks and dangers even where transparency is full and information is complete - but still really, really complicated in ways that in theory permit apples to apples comparisons, but in practical fact do not, and do not require them of a market still shielded in the short term from the consequences of its long term
(a) mistakes in valuation; or
(b) rational decisions not to bother with attempting accurate but complicated and expensive valuations and due diligence given the long term uncertainties about whether anything bad will really happen.
Court Refuses To Order Restrictions on Reader Comments at Media Web Pages Related to Death Penalty Trial:
This decision, in State v. Cobbins — the Christian/Newsom murder trial — was handed down in mid-April, but I just saw it because it just got posted on Westlaw. So I thought I'd note it, especially since I haven't heard of any earlier cases on the subject:
All defendants, at the hearing, requested that this Court order (1) media outlets to disable a portion of their websites (their internet forums) to prohibit web users from posting comments about any stories related to this case; (2) require media outlet internet users wishing to utilize the internet forums to use their true names and addresses; (3) or that this Court establish guidelines for acceptable comments on the internet forums and employ real-time monitors to ensure compliance. In Defendant Cobbins' written motion, he asserts that the intensive media coverage generated by this case “has fueled hostile threats, accusation, and diatribes by the public ... directed toward [the defendant], his co-defendants, and toward the attorneys who have been appointed by this Court to represent the various defendants.”
The written motions focus on the internet sites of local media and the public's ability to publish comments anonymously on those cites. Included in Defendant Cobbins' motion are various samples of comments posted by the public which discuss this case, the defendants, and the attorneys involved. Defendant Cobbins argues further in his motion that “[i]f the media cannot responsibly report, and/or monitor the public dissemination of its website content where such failure to monitor affects the effective representation of counsel for one or more defendants, it should not be allowed to further publicly disseminate information about this case.” He also asserts that “[w]hile the public has a right to be informed about these proceedings, that privilege will always be subservient to the constitutionally guaranteed right to receive effective assistance of counsel where one is charged with a capital crime.” ...
In Nebraska Press Ass'n v. Stuart, the Court established a three-part test to be used in determining whether a prior restraint is invalid; a trial court must determine (1) the nature and extent of pretrial publicity, (2) whether alternative measures would be likely to mitigate the effects of unrestrained pretrial publicity, and (3) how effectively a restraining order would operate to prevent the threatened danger.
In this case, the publicity has been extensive, detailed, and arguably misleading at times from a legal perspective. The relief sought currently is not the complete bar of media coverage of the proceedings, but rather a bar to the sharing of ideas between citizens who read or listen to the local media reports concerning this case, who wish to make anonymous public comment on the same in the media internet forums.
This Court has already granted alternative measures to mitigate the effects of unrestrained pretrial publicity by granting a change of venire to those defendants who have made the request; therefore, the juries who will hear and decide the charges will not be from the local media coverage area. The relief sought also would not necessarily effectively operate to prevent the threatened danger. Counsel asserts that the restraint is necessary to ensure the effective representation of the defendants. Only two media outlets intervened in these proceedings. The internet is not restricted to use by the media alone. Private citizens have access to and utilize the internet everyday to freely discuss and exchange ideas whether on the internet forums of the two media outlets or otherwise.
Considering all the factors, this Court cannot find that disabling the internet forums of the media internet sites would be an appropriate restraint.
In addition to and in the center of the issue of restraint and freedom of speech in this case is the issue of whether anonymous speech on these internet forums is protected and whether it should be restricted. The Supreme Court has recognized that the First Amendment protects anonymous speech....
The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. The “ability to speak one's mind” on the Internet “without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate.” People who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court....
So long as people are not committing any wrongdoing, they should be free to anonymously participate in the online forums. Accordingly, this Court does not find that any restraint on the internet forums would be appropriate in this case.
In addition to the request by all four defendants discussed above, Defendant Cobbins' motion includes an alternative motion to allow counsel to withdraw due to the threatening nature of the comments made anonymously in the media.... In this capital case, this Court has called upon some of this area's finest defense attorneys to represent the named defendants. At this court's request, the attorneys have graciously, and at great personal sacrifice, accepted these appointments and are zealously representing their clients as they are required to do by law. As pointed out by counsel, fees paid in appointed cases do not compare with the fees received by most attorneys in non-appointed cases. This Court greatly appreciates the sacrifices made by the members of the bar, on both sides of the courtroom, who accept this Court's appointments and who assist in the pursuit of justice. Without the dedication of these attorneys, our criminal justice system could not function.
At the hearing, Assistant District Attorney Leland Price announced that the State stands ready to investigate and/or prosecute anyone who anonymously or otherwise engages in criminal conduct toward any person, be it attorney, victim's family member, court personnel or otherwise. While this court understands counsel's concerns with the various general comments in the media concerning attorneys in this case, this court does not find that any of the comments rise to a level which would require allowing counsel to withdraw at this time....
This seems to me the right result. I'm generally skeptical of speech restrictions aimed at preventing jurors from being prejudiced at trial; and courts are as well. The Supreme Court in Nebraska Press Ass'n v. Stuart (1976) has held that in principle such restrictions may be permissible, but it set up a pretty stringent test that must be passed before they can imposed met (quoted above), and my sense is that in practice courts very rarely impose them. I recognize that jurors may hear things about the case that they shouldn't hear — rumors, allegations, information about excluded evidence, and so on. But judges should be able to do a pretty good job of persuading jurors to set that aside, and to focus on what they hear in the courtroom. All of us are familiar in our daily lives with rumors that prove to be false, newspaper accounts that omit important details, media accounts that we mishear because we aren't closely focused on them, and so on. Jury instructions that remind jurors of that, and remind them to pay attention only to things that they hear in court, that they can focus on and remember well, and that are subject to cross-examination shouldn't be hard to accept or counterintuitive. They won't be perfect, but I suspect they should be fairly reliable, especially since they come from a high-authority figure that jurors are likely to view positively.
But whatever one might say about the risk of incurable juror prejudice from media accounts, it would apply least to user comments, especially anonymous ones. Such comments are so low in credibility that it's hard for me to see jurors being much influenced by them, especially in the face of instructions from a judge that explain why such out-of-court sources should be ignored. So the judge's conclusion here strikes me as entirely correct on this.
Threats to lawyers are a different matter, and certainly something that jury instructions can't cure. Nonetheless, the risk that a few speakers might use online comments to threaten lawyers doesn't justify, I think, imposing special restrictions on all speakers (or even all anonymous speakers); and people who really want to seriously threaten lawyers would still be able to threaten them even if comments are shut down on certain articles at various media sites. Plus requiring people to use their accurate names and addresses isn't self-enforcing; certainly the newspaper can't practically enforce that. So someone who wants to threaten someone would still be able to do so, just using a false name and address — the proposed orders wouldn't really prevent such threats, except insofar as they might catch a few of the most foolish threateners.
Citizens, Courts, and Confirmations: Understanding the Mass Public’s Attitudes toward Law and Courts.
I greatly appreciate the opportunity Eugene has provided to chat a bit about some research in which Greg Caldeira and I have long been engaged. That work concerns the institutional legitimacy of the U.S. Supreme Court. We have conducted numerous projects over the years, currently have a survey of public opinion in the field connected to the Sotomayor nomination, and recently published a book – Gibson, James L., and Gregory A. Caldeira. 2009. Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People. Princeton, NJ: Princeton University Press – on the causes and consequences of the Alito nomination to the high bench. Especially in light of the opening of the Sotomayor hearings, I thought it might be useful to discuss some of our findings.
I’m not so much interested in who is for and against any given confirmation – although that topic does command a chapter in our book – but rather I prefer to focus on the institutional legitimacy of the Supreme Court. Please allow me to begin a consideration of why it is important to understand the views of the American people and especially how knowledgeable they are about things judicial. After all, if the American mass public is comprised of nothing but know-nothings then it hardly makes any sense to ask them their views about the Court as an institution and the judges who staff the Court.
Conventional wisdom holds that the American people are incredibly ignorant about the Court. Indeed, just in the last week, C-SPAN published their “Supreme Court Survey” purporting to document how dumb ordinary folks are.
I do not want to spend too much time on technical and statistical matters but I do urge readers to be wary about all survey results. The key indicator of a legitimate survey is the ability to cite a response rate. Most non-scholarly polls cannot, which indicates that deviations – perhaps even vast deviations – from random sampling have occurred. Without some semblance of random sampling, one cannot generalize from a poll to the larger population.
The C-SPAN survey shows that only 46 % of the respondents can name a Supreme Court justice. The question asked requires the respondent to pull from thin air a justice’s name, and, by the way, that justice cannot be Sandra Day O’Connor or Sonia Sotomayor. According to their poll, Clarence Thomas is the most named justice, selected by 14 % of the respondents. Substantial gender differences exist in the ability to conjure up a name, with 54 % of the men but only 41 % of the women able to do so. As usual, young people score pathetically on this measure.
It turns out that a chapter on our book (also recently published in somewhat different form in the April 2009 issue of The Journal of Politics), also was concerned about Clarence Thomas. However, we helped our respondents by first asking them if they knew if there was an African American on the Supreme Court and then asking them to identify Thomas’ name from a list of three judges. The proportion of the sample able to correctly identify Thomas was tremendously larger than that reported by C-SPAN. The reason why is that unaided recall is always different from name recognition. Many who study political knowledge believe the latter is a more valid measure than the former.
In our book we give a simple example of why it is so unimportant to be able to recall justices’ names, arguing that it is difficult to envisage an actual political scenario in which it would be necessary for citizens to be able to recall a judge's name without any prompting. Imagine, for example, the following Rehnquist-era conversation among three voters.
Voter 1: The Supreme Court is out of control, what with its decision to give Bush the presidency, the threats to a woman's right to choose whether to have an abortion, etc.
Voter 2: Yes, I agree. I bet it has to do with the Chief Justice, who I think is a staunch Republican.
Voter 1: Yeah, I agree. What is his name? I can't remember.
Voter 2: Neither can I, but the guy ought to be impeached.
Voter 3: I think his name is Rehnquist, Ringgold, or something like that.
Voter1: Maybe. But whatever his name is, we need a new judge on the Supreme Court. I guess I'll have to vote for the Democrats next time so as to get a better Supreme Court.
It is difficult to see that this conversation would be any more politically meaningful were the discussants able to remember the name of the Chief Justice. And, after all, even Richard Nixon, as he was about to nominate him to the Supreme Court, had difficulty remembering the Assistant Attorney General's name, referring to him instead as "Renchburg," at least according to John Dean (2001)!
The C-SPAN poll indicates that fully 76 % of the American people (82 % of men, 70 % of women) know that the justices of the Supreme Court serve a life term (in what is something of a trick question inasmuch as it asks about “the maximum number of years a Justice can serve”). For my money, it is vastly more important for judicial politics for people to know that justices serve a life term than to know that people as obscure as Stephen Breyer, Anthony Kennedy, and John Paul Stevens (named by 1 % each in the C-SPAN poll) sit on the bench. I find the 76 % figure impressive, not depressing, in that it indicates that this information is widespread throughout American society. At the end of the day, a substantial revisionist school is developing among political scientists that argues that the traditional criteria for judging the competence of citizens in a democracy are misguided and that, were more appropriate tests applied, the American people are considerably more competent than most believe.
I am a social scientist who claims little special expertise when it comes to normative arguments. In all of my research my goal is testing hypotheses drawn from theory, and letting the data fall where they may. My objective is always to report findings as I actually see them, even when I might not personally agree with the findings and their implications.
I mention this because vast normative consequences stem from the findings on political ignorance, with those who favor a diminished role for the mass public in judicial politics seizing upon media polls like the C-SPAN polls for ammunition for their position. As one who has published extensively on public views of the judiciary in peer-reviewed outlets, I can well attest to how often reviewers complain about even asking ordinary people questions about issues that ought to belong exclusively to legal experts. Consequently, I believe that findings on public ignorance are normatively satisfying to many and therefore have become conventional wisdom far too easily, without the careful scrutiny social scientists give to virtually all important and policy-relevant empirical findings.
Let me give an example. The American National Election Study routinely and regularly measures political knowledge by asking people to identify the position held by various political leaders, national and international. The question stem reads as follows:
Now we have a set of questions concerning various public figures. We want to see how much information about them gets out to the public from television, newspapers and the like.
In the 2008, ANES asked about “Nancy Pelosi,” “Dick Cheney,” “Gordon Brown,” and “John Roberts.”
Imagine how difficult it is to be asked to identify the job of Pelosi, Cheney, and Brown, and then “John Roberts.” The context established by the first three questions is explicitly political; then comes the curve-ball (at least for those respondents who do not readily associate the Supreme Court with ordinary politics): John Roberts. As it turns out, in contemporary times, the Chief Justice's name, John Roberts, is a relatively common name, easily confused, for instance, with John Roberts, the host of the CNN show “American Morning.” Finally, it is not at all clear why being able to spontaneously name a Supreme Court justice is a useful skill for citizens. As simply a stimulus to measure political knowledge, perhaps “John Roberts” is useful (although the utility most likely also varies over time); as a measure of public knowledge of the U.S. Supreme Court, this variable, especially as it has been coded in the past, is practically useless as an indicator of public knowledge of the U.S. Supreme Court.
So: The first important conclusion that emerges from our research is that the American people are not ignoramuses when to come understanding judicial politics, and, because this is so, it makes sense to query ordinary people about a wide variety of issues of judicial politics.
Let the Democrats put forward three different health care reform proposals. Let the Republicans put forward two different proposals. Find five states to volunteer. Each state adopts one of the proposals. Wait several years. See if any of these proposals worked out well, and if so, which one seems best, and why. Learn from this trial and error, and then pass a national health bill, instead of trying an untested, one-size fits all solution for 20% of the American economy.
Earlier this month, I was traveling to a conference of the International Institute for the Sociology of Law, in Spain. So I have neglected to post some recent National Journal polls of political bloggers. Here they are.
The July 10 poll asked "If the cap-and-trade legislation passed by the House becomes law, how much will it reduce global warming -- if at all?" Hardly anyone thought "a lot," but 58% of the Left thought "some," while 79% of the Right thought "none." I voted for "a little," with the comment, "Under 1 degree centigrade. Probably much less than that."
Question 2 was "Do you favor any of these additional stimulus measures?" Much of the Left favored "Grants to state and local governments" and "Safety-net payments." The Right preferred tax cuts for businesses and individuals.
I chose "No further action for now", and wrote: "Bush's reckless and irresponsible deficit spending has been followed by much, much more of the same. It's time to stop the hair-of-the-dog remedies, which just make everything worse in the long run. If Obama demanded a balanced budget, he would be a true agent of change, and his legacy for future generations would be hope rather than debt."
The July 3 poll brought trans-ideological agreement on "What's the biggest problem for Democrats right now?" The answer was "A sluggish economic recovery."
I was part of the minority who picked "rising deficts," and said "Most fiscally reckless and irresponsible presidency ever. Much worse than GWB and LBJ combined."
As for, "What's the biggest problem for Republicans right now?" a large majority on the Right said "Lack of a leader." A plurality of the Left said "Obstructionist image in Congress."
But I picked "scandal," with the explanation: "If the GOP, during its years of congressional control, had not gotten so deeply involved in the culture of corruption, then the party today might be a more attractive alternative to voters currently disgusted with the corruption of Dodd, Frank, Rangel, etc., which played such a huge role in causing the mortgage meltdown."
I'm delighted to say that James L. Gibson, coauthor (with Gregory Caldeira) of Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court, will be guest-blogging this coming week, chiefly about that very topic: how much the public really knows about the Supreme Court, and how that can be measured. Prof. Gibson is the Sidney W. Souers Professor of Government and Professor of African and African American Studies at Washington University in St. Louis, as well as Professor Extraordinary in Political Science at Stellenbosch University in South Africa, and author of many books and articles that are too numerous to mention here; I much look forward to his posts.
Candidate Obama, June 2008, in front of AIPAC: "And Jerusalem will remain the capital of Israel, and it must remain undivided."
Obama Administration, July 2009: "The United States views East Jerusalem as no different than an illegal West Bank outpost with regard to its demand for a freeze on settlement construction." [I've edited slightly to clarify that the second quote is Obama administration policy, no doubt blessed by Obama, not a direct Obama quote like the first one.]
(Hypothetical) Removal of Libelous Books from Customers' Kindles?
Say that someone alerts Amazon that a certain book that it is selling contains a libel — or discloses information that invades someone's privacy, or some such. And say the matter is clear, and Amazon has no doubt that the book is indeed libelous. Under traditional American libel law (which is quite constitutional under the First Amendment), Amazon would at that point be legally actionable for Amazon to continue distributing the book.
Bricks-and-mortar bookstores have in fact long been potentially liable for distributing libelous books once they learned that they were libelous, though in practice such lawsuits have been rare. It's also possible that they could even be enjoined from selling the book, once there's a final finding by a court that the book is libelous; they could certainly be sued for damages. It's possible that 47 U.S.C. § 230 would shield online bookstores from this liability rule, though it has long been applied to bricks-and-mortar bookstores. But let's assume that Congress modifies § 230 to track traditional libel law rules. Or let's say that this arises in England, or some other country that doesn't have § 230.
My question: Should it be proper for Amazon to at that point delete the libelous books from users' Kindles? Let's say that Amazon tried to add a provision to its user license agreement that would give it the contractual right to do so. Should consumers be very troubled by that? Or should they react the same way they react to the fact that if a Web site operator is alerted that some of his writings are libelous, he must change them or face the risk of liability? (That's just normal libel law.)
I would be troubled, partly because I wouldn't be at all certain that the judgments about what is and is not a libel will be made accurately. That's always a risk with any libel law system, but I would think it's even more egregious if it can affect existing copies and not just the distribution of future copies. I also would worry that the same would end up applying to books that contain alleged "hate speech," or blasphemy, or insults to political officials, or whatever else some country that has jurisdiction over Amazon might insist on. Again, the ability to change existing copies in customers' hands strikes me as materially more dangerous than just the ability to demand that people who post things online change their postings. But would I be correct?
Incidentally, what if instead of deleting the material, Amazon changed the file to include an explanation that this and that passages are false, with details about why they are false? (Of course, that would not be helpful in invasion of privacy cases, and many people who are libeled would prefer that the libels of them be entirely deleted, rather than just supplemented with correcting information.) Should we also be troubled about that, either on its own terms or because of the possibility that it would lead to broader editing? Or should we welcome it as a means of providing more information to readers, as well as mitigating in some measure the harm to the wrongly defamed?
An Amazon spokesman, Drew Herdener, said in an e-mail message that the books were added to the Kindle store by a company that did not have rights to them, using a self-service function. “When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers,” he said.
Does that make the deletion of the books proper? I don't think so.
1. It's true that Amazon might well have been infringing copyright by distributing the books, even though it was doing so unwittingly. (I don't think it would be immune from liability under 17 U.S.C. § 512, but I don't want to get into the details of that now.) It certainly had an obligation to remove the material from its own site once it learned that it was infringing.
2. It's also true that, under U.S. law, even reading an infringing book on one's electronic reader might be an infringement. That's not true for traditional books; if you read at home a book that turns out to be infringing, you're not an infringer. If you sell it or give it away to someone, you probably are, but just reading it doesn't implicate any of the copyright owner's exclusive rights. But when you read an electronic book, you are necessarily making copies of the book inside your computer system, and onto your computer screen, and those copies are often present there for periods of longer than transitory duration. That likely means that you're infringing the copyright owner's exclusive right to make copies. (By authorizing the sale of an electronic version, the copyright owner is implicitly or expressly licensing people to do the electronic copying involved in reading authorized copies; but here there was no such initial authorization.) So unless the home reading is a "fair use," even of an infringing copy, the user might be infringing copyright by reading the electronic book on a Kindle in the U.S.
3. But that's a "might be." Perhaps the user can win on a fair use defense; perhaps courts might conclude that online reading of an electronic book on one's own Kindle should be treated legally the same as the reading of a physical book; the matter is not settled.
And it's only if the reading takes place in the U.S. In other countries, the law might be different, and reading an electronic book might be as noninfringing as is reading a paper book. What's more, it has been said that Orwell's works are in the public domain in some other countries, including Canada and Australia. (I haven't investigated this closely myself, but see here and here for such claims.) So reading the Orwell work on your Kindle in Canada might well not be infringing, unless there's some added text in that work, for instance someone's Introduction, that is not yet in the public domain.
4. And on top of that, even if your reading the work on your Kindle might be an infringement, that's your infringement. Amazon at that point is not legally responsible for your infringement (though it was for the original infringement in the sale of the book). It thus can't defend itself on the grounds that the law requires it to take this step, in order to stop its own infringement — deleting your copy wouldn't have stopped its own infringement, but at most might have prevented an infringement by someone else (its customers), or mitigated the harm caused by Amazon's original infringement. And as I mentioned, the actions that the deletion was preventing might not even have been infringing.
5. Nor does it seem to me that Amazon can defend itself on the grounds that it was exercising its contractual rights to delete infringing material. As I read its Kindle License Agreement, it has not reserved any such rights. Rather, it says (emphasis added), "Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use."
Even if Amazon had reserved such a right under its contract, I think that would have been something that many readers would have found quite troubling, especially given that the reservation of this right would have been unexpected, contrary to the way things are done with traditional books, and put somewhere inside an agreement that no-one reads. The contractual term might have been enforceable, but still understandably upsetting to readers. But as best I can tell, no such right was reserved; in fact, the deletion was a breach of its contract, and quite possibly a trespass on readers' Kindles.
6. On top of that, the trespass wasn't just annoying, but for some people quite damaging; some readers lost their own annotations together with the electronic book.
7. All this may have happened not as a deliberate decision to remove this book from customers' Kindles, but rather as an artifact of the way Amazon's computer system works: when a book is deleted from the central site, all downloaded copies are also apparently deleted. But if that's so, that just means there's a seriously bad design choice (or a serious bug) in the Amazon system. It hardly gets Amazon off the hook.
Amazon effectively acknowledged that the deletions were a bad idea. “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances,” Mr. Herdener said.
Bloggers split on Palin effect, and health care taxes:
This week's National Journal poll of political bloggers asked "On balance, would Sarah Palin be more of an asset or a liability in campaigning for Republicans in competitive 2010 races?" On the Right, 62% thought she would be an asset, while only 13% of the Left did. I thought that she would, and wrote: "Presumably she will focus her efforts in races where she would be a net plus. I don't think we will see her campaigning for R's in Manhattan or Hollywood."
The other question was "Name and rank the two most politically risky ways to amend the tax code to pay for health care reform." The choices were: Limit the tax break on itemized deductions, Limit the tax benefit for "Cadillac" employer-sponsored health plans, Limit the tax benefit for wealthy individuals with employer-sponsored health plans, Increase income taxes on the wealthy, and Tax sugary drinks.
On the Left, the leading choices were limiting itemized deductions, and taxing full-featured health care plans. But the only choice that went over 50% (with first and second choices combined) was "none," which was a write-in vote.
On the Right, taxes on itemized deductions and sugar both got over 50%. I thought that the sugar tax and the marginal income tax rate increase would be most politically dangerous. I explained: "The sugar tax would be well-known by even most Americans who are not politically engaged as an example of intrusive nannyism. It would be a net plus in, at most, a few very health-conscious places. It would also cause trouble in the farm belt. Raising taxes on the most productive people will not only make many of them irate, it will significantly harm the economy, and reduce job creation and opportunity for everyone except government employees."
On June 19, the day before the Independence Institute's annual Alcohol, Tobacco & Firearms day, we held a panel on Nannyism, at the Warwick Hotel in Denver. Speakers included Andrew Breitbart (Drudge Report, Big Hollywood), Radley Balko (Reason), Linda Gorman (Independence Institute), David Harsanyi (Denver Post), Andrew Boucher (NoCoPolitics.com), Jordan Lipp (Colorado Civil Justice League), Terry Gallagher (Smoker Friendly), and me. The videos are available on the Independence Institute's MySpace page. The video of my 18 minute presentation is here.
Today is the anniversary of the 1814 birth of Samuel Colt. Not only was Samuel Colt one of the greatest firearms designers of all time, he was also a brilliant industrialist, a philanthropist, and an outstanding pro-labor employer. In 2002, I wrote an article in support of making the Coltsville manufacturing area into a National Park. In 2008, the area became a National Historic Landmark; the campaign for National Park status continues.
The Heartland Regional Emmy Awards ceremony was held on Saturday night, July 18. Winner in the "Interview/Discussion Program" category was the KBDI-TV public affairs roundtable program, Colorado Inside-Out. Our winning episode was "Time Machine: 1858," in which the cast does the show in a Denver saloon, early in the gold rush. That episode was first broadcast last July. For this year's time machine show, we traveled back to 1959, and discussed Cuba, Lady Chatterly's Lover, and other issues of the day. In 1858, I play the pioneer Chauncy Drizzelwhit. In 1959, I am his descendant, Charleton Drizzelwhit-Koplowitz, book review editor of the Rocky Mountain News.