The Volokh Conspiracy

I’m talking to my daughter’s preschool class about Passover tomorrow, and in preparation I’ve been looking for appropriate Youtube videos to show them. This one didn’t make the cut for the particular occasion, but it’s my favorite Passover Youtube video (and one of a series of very clever Passover videos from Aish.com). A must if you are a “Queen” fan.

when he says, “Like many liberal American Jews, when he looks at Netanyahu he sees a conservative Republican and he fails to understand how a Jew can be a conservative Republican. I think he looks at Netanyahu in much the same way he contemplates Eric Cantor, the Republican ‏(and Jewish‏) house majority leader. Like many liberal-leaning Jews, he might simply not understand how a Jew could be a Republican.”

But if Obama truly understands so little about Israel that he reduces things to “Netanyahu = conservative Republican” (something the Washington Post actually did quote an administration official as saying), as if Israeli politics somehow map on to an incredibly different American political scene, and truly has been so cloistered on the left that the idea of a Jewish Republican is somewhere between anathema and beyond his comprehension, Goldberg is not doing Obama any favors in pointing these things out. I actually doubt that Obama actually thinks these things, but I don’t doubt that a significant number of “liberal American Jews,” some of whom are or have been Obama advisors, do, and that there views filter down to journalists like Goldberg as Obama’s.

UPDATE: Put another way, there are some liberal Jews who are strong partisan Democrats who are both appalled by the notion of conservative Republican Jews and extremely resentful that (a) an influential group like AIPAC maintains strict partisan neutrality, which has the effect, given the baseline, of pushing the Jewish community and its donors effectively to the right; (b) there is a group of wealthy Republican Jews, exemplified by Sheldon Adelson, working for “the other side.”

There is little that can be done about “a” (JStreet is the attempt to do so) and nothing that can be done about “b” (though liberal Jewish groups did launch an abortive attack on Adelson last Summer). But given that Netanyahu has American friends and supporters from groups (a) and (b), one can take out one’s resentments on Netanyahu, entirely aside from one’s views on whatever policies he’s pursuing. We saw a fine example of this last Summer, when some were accusing Netanyahu of openly siding with Romney, and, when challenged to produce any evidence that this was true and failing to do so, kept insisting it was true nevertheless. (It was especially amusing to hear that Netanyahu was openly siding with Romney because they met when Romney came to Israel, when it turns out that Netanyahu met with Obama when he came to Israel in 2008, and lavished fulsome praise on him. Does that mean that Netanyahu even more openly sided with Obama in 2008?) So Netanyahu becomes a stand-in for all one’s Jewish or pro-Israel bogeymen, which, in my opinion, has not well served the Obama administration.

Atlantic:

Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that “there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness.” In drafting the 14th Amendment, he said, Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination.”

C’mon Erwin. The text of the relevant portion of the Amendment reads

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s fine to conclude that based on one’s own understanding of the text, history, proper modes of interpretation and so on, the Fourteenth Amendment doesn’t require colorblindness. But surely the fact that the Amendment is itself textually “color blind,” and speaks only of “persons” and not groups, and shows no textual evidence that Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination” is itself “a basis,” even if you don’t find it persuasive, for concluding otherwise. And of course there are other reasons one could reasonably interpret the Fourteenth Amendment to require color-blindness (the natural rights tradition, alluded to in this context often by Clarence Thomas; the historic concern with and opposition to “faction”; the mistrust of states, especially the southern states and especially with regard to race, after the Civil War; the historic Plessy dissent by Justice Harlan on that basis; and so on).

So I’m not saying that it’s wrong to think that the Constitution doesn’t require color-blindness. It’s a difficult interpretive issue. But I think it’s unfortunate when legal scholars wildly overstate the certainty of things in public discourse because they happen to support one side of a controversy.

The official announcement from the law school:

Judge Douglas H. Ginsburg will join the George Mason law faculty as professor of law beginning in July of 2013. Judge Ginsburg, who is currently a professor of law at New York University School of Law, will continue also to serve as senior circuit judge of the United States Court of Appeals for the District of Columbia Circuit.

Judge Ginsburg is a leading authority on competition law and policy, administrative law, and law and economics. In his distinguished career, he has been a professor of law at Harvard University (1975-1983); held a number of posts in the executive branch of federal government (1983-1986), including assistant attorney general for antitrust in the U.S. Department of Justice; and was then appointed to the United States Court of Appeals in 1986, serving as chief judge from 2001 to 2008. Judge Ginsburg taught as an adjunct professor at George Mason over a number of years, as well as having appointments as a visiting lecturer at the University of Chicago Law School and a visiting professor at University College London, Faculty of Laws. For the past two years he has been on the faculty of New York University.

“It’s an honor and delight to welcome Judge Ginsburg back to George Mason,” said Dean Daniel Polsby. “He is a teacher of long experience and matchless depth who understands his subjects from both practical and theoretical perspectives. Our students could not have a better teacher, and we could not have a better colleague.”

Judge Ginsburg is a graduate of Cornell University and the University of Chicago Law School. In addition to courses in antitrust and other subjects, he will teach and lecture in the programs of the school’s Law & Economics Center.

I had a relatively recent conversation about this with a very prominent member of the Yale Law School faculty. I mentioned that in my lifetime I don’t think that Yale has ever hired a “right of center” constitutional law scholar. (Note: not my career, my lifetime; please note that Bork was hired before my lifetime started, and as antitrust scholar; also, there was a specific reason that I mentioned constitutional law, but it’s tangential to the story). The response was in part, and I quote, “I simply don’t know what right of center means if it does not include [Akhil] Amar.”

Now, Amar calls himself a “liberal,” 33 Am. Crim. L. Rev. 1193, 1196 (1996), is consistently referred to in the media a “liberal” or “liberal Democrat” without apparent objection from him, and has views on Constitutional Law which, despite some heterodoxy, are still ultimately overall left of center, and clearly so. Yet my correspondent not only argued that Amar is “right of center,” but suggested that he can’t imagine why anyone would think otherwise.

The point being this: Most left-of-center law professors think of themselves as being tolerant and open-minded, and wouldn’t consciously discriminate against a faculty candidate because of ideological differences. But if you’re a liberal considering conservative candidates (and vice versa), as Jonathan suggests you might have to make a conscious effort to overcome a natural skepticism of the quality of someone’s ideas when their worldview is contrary to yours. And you also may have to make an effort to overcome the blocking tactics of the minority of your colleagues who would and do, in fact, intentionally discriminate. How much of an effort you will make will likely in part depend on the extent to which you think, as an empirical matter, you need to make such an effort for the process to be fair. And if you’re sitting around thinking that you and your colleagues have successfully overcome your natural biases because you hired someone like Akhil Amar, you are likely to make less of an effort than if you think to yourself, “you know, this faculty hasn’t hired a right-of-center constitutional law scholar in over forty-five years, I wonder if we’ve been treating such candidates fairly?”

This is not, by the way, an attempt to pick on Yale specifically. My correspondent told me that Yale has in fact had “flirtations” with individuals with far clearer “right of center” credentials than Amar has, and that the lack of interest has come from the other side. But I think I’m illustrating a more general point here.

Times of Israel:

Americans’ sympathy for Israel is at a 22-year high, according to Gallup figures released on Friday, just five days ahead of Barack Obama’s first visit to Israel as president. In figures gleaned from the polling organization’s early February World Affairs poll, 64 percent of Americans say their sympathies “in the Middle East situation” – Gallup’s term for the Israeli-Palestinian conflict and peace talks – lie more with the Israelis than with the Palestinians. Just 12% favor the Palestinians.

People unfriendly to Israel used to say that Israel was only popular in the U.S. because pro-Israel forces had managed to stifle debate by preventing mainstream sources from publishing critical articles. That turns out not to be true now, if it ever was. From the New York Times op-ed page to a best-seller by Walt and Mearsheimer to Joe Klein’s columns to campus “Israel Apartheid Weeks” to dozens and dozens of blogs, it’s actually pretty hard for anyone at all interested in the Arab-Israeli conflict to avoid reading strong criticism of Israel, even if they tried. One would certainly be hard-pressed to argue that debate is being meaningfully “stifled.”

One thing that puzzles me is that if you read just about any online piece about Israel, whether from a mainstream newspaper or a blog, the comments sections are filled with anti-Israel invective. Even many pro-Israel blogs attract many anti-Israel commenters (see, e.g., this blog), and liberal pro-Israel blogs are in fact dominated by them. Given the statistics recounted above, I find this an odd situation. Is there any other issue where public opinion leans so far to one side, but on-line comments slant so heavily the other way? Are there really that many people who feel so strongly about the other side (and not any other burning issues in their world) that they devote a fair amount of their time to mostly-unread blog comments? Or is it a small group that basically scours the internet for Israel-related material, and spend basically all their waking hours writing anti-Israel invective?

From a review in the most recent issue of Reviews in American History:

Like most conservatives, Shlaes assumes a perfectly competitive marketplace in which the government can only make an unwarranted and counterproductive intrusion. This perspective leads Shlaes to discount the role of jobs programs such as the CCC and the WPA that contributed to the decline in unemployment from 22 percent in 1932 to 9 percent in 1937. By setting a standard in which a public program cannot provide real work and must be temporary, she forecloses the possibility that any government program could strengthen the economy. Because Shlaes’ position is roughly equivalent to a cancer researcher who refuses to count remissions from chemotherapy, Hiltzik easily rebuts her.

Outside these parameters, however, Hiltzik has his own problem. The New Deal did reduce unemployment, but it was ultimately World War II and the warfare/welfare state emerging out of it that has kept the rate down ever since. Although Hiltzik briefly acknowledges World War II’s role in reducing unemployment, both he and Shlaes actually suffer from parallel oversights: Hiltzik does not fully account for the military component of the intervention, and Shlaes does not count the welfare.

Let’s put aside the question of whether the ruling is in fact judicial activism, or whether it was simply a proper application of non-delegation principles.  What about “conservative?”  Emily Bazelon of Slate writes,

Judge Tingling walked on by all of that in striking down the Department of Health order. And of course he’s not the first conservative judge to find that activism from the bench is awfully appealing when it allows you to sweep away laws you don’t like.

How do we know that Judge Tingling is a conservative? He’s an elected judge in Manhattan, and received the endorsement of the Rangel machine, among other liberal endorsements. I recognize the temptation for Bazelon to try to score political points by tying Tingling’s ruling to a broader critique of “conservative judicial activism,” but she doesn’t have any evidence that Tingling is “conservative” beyond this one opinion on a local issue (I know, I asked her). And I’m not sure that even this opinion is “conservative.” Is it “conservative” to, as they saying goes, oppose the government telling people what they can do with their own bodies? Conservative to be concerned about executive overreach? Conservative to oppose a paternalistic law that will disproportionately control the actions of minority populations, who overwhelmingly opposed the law?

I’m not buying it. Whatever one thinks of Judge Tingling’s opinion, it strikes me as more than a stretch to link it, as Bazelon does, to the “four-judge dissent in the Supreme Court’s ruling on Obamacare last June.”

H/T Josh Blackman

Below I’ve created a table listing the top fifty-five law schools according to their “peer” ranking on U.S. News, with the last column showing each school’s ranking according to the latest “scholarly impact” study conducted by folks at St. Thomas Law School. Two schools stand out as being wildly underranked by their peers compared to their scholarly impact: George Mason, ranked 55 by peers but 21 by scholarly impact, and Cardozo, ranked 51 by peers and 25 by scholarly impact.  In fact, no other schools ranked as well as Cardozo and George Mason in scholarly impact ranked lower than 23rd in the U.S. News peer rankings.

The most overranked school by these measures is Wisconsin, which is ranked 23 by peers but is not in the top 55 by scholarly impact.  (St. Thomas, by the way, is well out of the top 55 by peer ranking, but is number 31 in scholarly impact.)

Note that U.S. News asks academic rankers to rate law school quality, not scholarly prowess of the faculty.  Still, there is a strong enough relationship between the two overall for anomalies to be notable.

H/T to Paul Caron at Taxprof, who created a similar table comparing Peer Rank to overall U.S. News rank.

In 1917, the Supreme Court decided Buchanan v. Warley, holding that it was unconstitutional to ban blacks from buying property on blocks where mostly whites resided, and vice versa. Buchanan was, in my opinion, a very important case, but it has mostly languished in obscurity.

Last week, however, Senator Rand Paul talked about Buchanan on the Senate floor during his filibuster, sparking some curiosity about the case. I therefore decided it would be useful to post my 1998 Vanderbilt Law Review article on the case, which I believe is the most extensive existing treatment of Buchanan. Not surprisingly, I wouldn’t write the article precisely the same way now as I did then, and some of those changes are reflected in a later piece I co-authored with Ilya Somin for the Yale Law Journal and in my discussion of Buchanan in Rehabilitating Lochner. Still, if you’re curious about the case, the Vanderbilt article is very informative and would be the best place to start.

I’ve posted this paper on SSRN. It’s forthcoming in the Notre Dame Law Review. It’s become common for people to post papers on SSRN only when they are “done,” so as to show off their best work. But I’m actually really interested in comments on this one, and the final version isn’t due to the law review until the (North American) Summer. So if you read it and have comments, suggestions or corrections, please send them my way.

Here is the abstract: This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by counter-revolutionary judges to stop or roll back the changes, even when the changes were codified into Federal Rule of Evidence 702.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony.
Parties to litigation, they argued, often presented expert testimony of dubious validity because it supported their positions, while lay juries were incapable of discerning which side had the better case. However, it took the rise of toxic tort litigation based on questionable causation theories and the attendant threat to multi-billion dollar industries to provoke a meaningful response from the courts, a sudden and dramatic shift toward stricter admissibility standards.

Part II describes the Daubert trilogy and the emergence of amended Rule 702. A pattern emerged of the Supreme Court attempting to strengthen the rules governing expert testimony, some lower courts resisting, and the Court responding by issuing a new opinion clarifying the courts’ new “gatekeeping” responsibilities. Eventually, an amendment to Federal Rule of Evidence 702 codified the Daubert trilogy, and did so with language that removed ambiguities and loopholes exploited by judges who had been inclined to try to evade the Court’s rulings.

Nevertheless, as Part III describes, some federal judges have continued to apply significantly more lenient standards for expert testimony than Rule 702 allows. They do so by ignoring the language of Rule 702, and instead relying on precedents from a bygone era. The First Circuit’s Milward opinion, described in detail in Part III, demonstrates many errors and fallacies common to judges who have chosen to resist the Daubert revolution.

The underlying issue theme tying the history of, and present controversy over, the admissibility of evidence in toxic tort litigation is a dispute over the underlying rationale for having special rules for the admissibility of expert testimony. Judges that favor more liberal rules for admissibility believe that the rules are meant to address only the problem “junk science”—scientific testimony that not only falls outside the scientific mainstream, but does so in the face of well-accepted contrary evidence.

More restrictive judges, by contrast, are addressing the broader problem of “adversarial bias” that results from our legal system allowing the parties to choose their own experts. In short, parties to litigation have a natural inclination to choose experts whose views match their theory of the case, even if those experts are outliers or hired guns. Rule 702 tries to limit this problem by insisting that experts show an objectively verifiable basis for their testimony, so that the trier of fact is not in the position of relying on the mere ipse dixit of an expert chosen solely because his views are consistent with the partisan position of a party to litigation.

This Article concludes by discussing some of the factors that have led some federal judges to defy Rule 702. The author contends that the Supreme Court should take an appropriate opportunity to crack down on such judicial rebellion, for two reasons. First, Rule 702 is the law of the land, and federal judges are obligated to enforce it regardless of their personal views on what expert testimony should be admissible. Second, Rule 702 represents a constructive effort to confront the problem of adversarial bias while retaining the basic contours of broader adversarial process.

Co-blogger Jonathan Adler quotes Professor Herbert Hovenkamp of the University of Iowa Law School, below, as stating:

The overwhelming majority of my colleagues believe in diversity in faculty hiring, and I believe most would include ideological diversity of both right and left. Some would regard diversity more as a “tie breaker” for choosing among people with roughly equivalent records, while others would reach further. I am confident that no one on our faculty would discriminate against a candidate because of his or her views. Our hiring goal, just as that of all other law schools I know, is to hire the most skilled, able teachers for our students.

Color me rather skeptical that most members of the UI faculty are seriously interested [beyond perhaps in response to the p.r. fallout from the lawsuit against the school for ideological discrimination] in pursuing hiring faculty ideologically on the “right” as a goal, much less that they’d prefer a “right-wing” candidate over an equally qualified candidate on the left, much less that any significant number would “reach further” than that. Some of my skepticism is an artifact of my understanding of what goes on at most law schools, but it’s also a product of this paragraph from the New York Times:

According to Ms. Wagner’s lawsuit, the law faculty at Iowa in 2007 included a single registered Republican among its 50 or so members. The Republican professor was appointed in 1984. In 2009, The Des Moines Register found that there were two registered Republicans on the faculty.

But maybe I’m too cynical. After all, not every conservative or libertarian law professor is a registered Republican (conversely, not every Republican is libertarian or conservative), and not everyone who gets an offer for an entry-level or lateral position takes it.

There is at least one way to clear the air. Surely, as part of its defense against the Teresa Wagner’s claim that she was discriminated against based on her conservative views, the law school’s lawyers prepared an exhibit showing all of the right-of-center faculty candidates to whom the law school had offered positions over, say, the decade before Ms. Wagner’s lawsuit commenced. After all, if a significant list of such candidates existed, that would be good circumstantial evidence that the law school didn’t discriminate on the basis of ideology, and thus didn’t discriminate against Ms. Wagner. The exhibit, in turn, would be public information, so if Prof. Hovenkamp or someone else at the law school would forward me this list, I’m sure my cycnicism will be easily overcome. Folks at UI should feel free to send that exhibit, or any other such list, to me at dbernste [at sign] gmu [dot] edu.

(And by the way, I’m pretty confident that there are a lot more law professors who “believe” that their faculties should make more of an effort to increase their ideological diversity than there are those who will actually recruit and vote for such candidates in practice).

UPDATE: I have a friend at a top law school who assured me that his colleagues would never discriminate based on ideology. In fact, he added, he was about to push a candidate with “right-wing” political views, and he was sure the faculty would be interested. A while later, I inquired as to how things went. The answer: “Remember how I said my colleagues wouldn’t discriminate based on ideology? I was wrong.”

FURTHER UPDATE: Several readers remind me that in Ms. Wagner’s case itself, jurors told reporters after trial they thought that she had been discriminated against by the faculty based on her ideology, but perhaps not by the dean, who was the actual defendant. Take the jurors’ opinion for whatever you think its worth, but it certainly lends no support to the claim that the Iowa faculty was actively seeking ideological diversity.

In a week filled with news of threats of nuclear war from North Korea, the death of Latin American tyrants, scary assertions of executive power to execute Americans without due process, not to mention highly impertinent questions asked of prominent law professors, here is some lighter news–my son at four months with his evil twin.

Attorney Ian Millhiser of the “liberal” Center for American Progress is quite agitated by Sen Paul’s speech yesterday, and not because he is concerned about potential abuses of executive authority. Rather, it’s because Paul had the temerity to refer favorably to Lochner. This provoked Millhiser’s response (h/t Alex Tabarrok), which is full of disingenuous statements:

“Even Robert Bork, the failed, right-wing Supreme Court nominee who claimed women ‘aren’t discriminated against anymore’, called Lochner an ‘abomination’ that ‘lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.’” Surely Millhiser is aware that (a) Bork’s basic outlook on constitutional law was majoritarian; (b) this perspective was inherited from pre-Brown Progressivism; (c) Bork was, like his Progressive forebears, especially disgusted by an invocation of the due process clauses for substantive purposes; (d) the so-called “right-wing” today contains majoritarian conservatives, natural rights libertarians, and everything in between; and (e) the supposed Bork remark re women (I haven’t researched it) is just a cheap shot that had nothing to do with anything.

In fact, and as I assume Millhiser knows, Bork is actually among the last people you’d ever expect to be favorably inclined to Lochner. Which is precisely why, to address another issue Millhiser raises, Lochner may have something to do with drone strikes: a consistent majoritarian is likely to be, well, consistent, and therefore think that any constraints on executive power have to come from the political process, not from the Constitution. And a consistent constitutionalist is likely to be consistent as well. One can argue that by reading certain rights out of the due process clause, and thus out of the Constitution, the left has tipped the balance toward the majoritarian side, which makes it more, not less, difficult to defend civil liberties. I’m not sure I fully endorse that line of causal reasoning, but there’s nothing especially mysterious about it.

“Not every workplace law was struck down during the so-called Lochner Era — the justices of that era sometimes valued sexism more than they valued exploiting workers, for example.” As Millhiser is no doubt aware, the Supreme Court upheld the vast majority of labor laws that came before it during the so-called Lochner era, including every maximum hours law other than the one at issue in Lochner. Most of these laws had nothing to do with women.

Moreover, as I document in great detail in Rehabilitating Lochner, the defense of sexist protective laws for women in that era ultimately came primarily from Progressives who opposed liberty of contract more generally, and opposition came primarily from those who generally supported liberty of contract. The only case to explicitly defend women’s right to equality in employment law until the 1960s was Adkins v. Children’s Hospital, a liberty of contract case much scorned by Progressives of the 1920s, and by the separate group of self-described Progressives today (who inaccurately assume that the Court’s invocation of women’s rights was disingenuous).

“In essence, Lochner established that any law that limits any contract between an employer and an employee is constitutionally suspect. If desperation forces someone to agree to work 18 hours a day, seven days a week, for a dollar a day in a factory filled with toxic air, then courts must treat that law with heavy skepticism.” No, health laws were clearly within the police power, and the “toxic air” part would have been easily sufficient to justify a regulation even without the hours issue.

“Paul’s speech also includes a somewhat rambling attempt to claim that Lochner helped ‘end Jim Crow,’ a claim that would cause anyone with even a rudimentary understanding of civil rights history to scratch their head.” Paul, as Millhiser acknowledges in his link, was referring to Buchanan v. Warley. You can read my short essay on Buchanan here, but for these purposes I think it’s sufficient to note that W.E.B. Du Bois credited Buchanan with “the breaking the backbone of segregation,” and that Judge Leon Higginbotham, a historian of law and racism, stated that “Buchanan was of profound importance in applying a brake to decelerate what would have been run-away racism in the United States.” While there are certainly others who have denigrated Buchanan’s importance (or more often ignored it because it doesn’t fit the traditional narrative of the reactionary Lochner era Court), Paul was hardly making some wild, idiosyncratic claim.

That’s the name of my article, published last year in the George Mason Law Review for a symposium on judicial engagement, that I just posted to SSRN. Here’s the abstract:

Debate over judicial engagement under the Fourteenth Amendment generally starts from the presumption that strict judicial scrutiny of laws that infringe on important rights is a liberal or Progressive idea in both origins and effects. Despite other differences, the Supreme Court’s traditionalist critics and Lochner era revisionists agree on one important matter-that it was exclusively the Progressive wing of the Court that planted the seeds of modern fundamental rights jurisprudence. According to both camps, any pre-New Deal antecedents to this jurisprudence can be found in the opinions of Justices Holmes and Brandeis and later Justice Stone, and not in those of their non-Progressive colleagues.

This Essay challenges the received wisdom regarding the pre-New Deal Court’s majority’s due process jurisprudence. In particular, before modern liberals took control of the Supreme Court in the late 1930s, the Court’s conservative majority had in several cases expressed its willingness to override the states’ police powers to protect important liberties.

Part I describes the Court’s early Fourteenth Amendment Due Process Clause jurisprudence and its unwillingness to privilege substantive rights over valid police-power rationales. Part II of this Essay discusses several later instances in which the Supreme Court invalidated legislation under the Due Process Clause even though the Court acknowledged that the state had asserted legitimate police-power justifications for the laws in question. In doing so, the Court anticipated modern fundamental rights jurisprudence.