PrawfsBlawg

Not Alone!

Below, Steve rhapsodizes about the release fo the 4th volume of David Currie's Constitution in Congress series. He wonders:

What I wonder, though, as I read Currie's latest, is how widely each of these books has been received. Is it just uber-law-dorks like me, who find pieces like Currie's Virginia Law Review article on the Confederate Constitution fascinating, who are captivated by these historical studies?

Now maybe I am also an "uber-law-dork", but I too am absolutely elated about the new release. Unfortunately, a long0time family tradition precludes me from purchasing it myself until after Christmas Morning. My Increasingly-slavering thoughts on the first three volumes of the series are here, here, and here.

The Constitution in Congress -- Volume IV

I just finished the hot-of-the-presses fourth volume in David Currie's wonderful series, The Constitution in Congress. The present volume, subtitled "Descent into the Maelstrom: 1829-1861," chronicles the evolution of constitutional interpretation in Congress with regard to slavery, secession, and the territories. [The third volume, "Democrats and Whigs," covered the same time period, but from a somewhat different perspective.]

Anyway, the entire series provides a fascinating (and welcome) insight into how congressional leaders of the times viewed the constitutional issues of the day, and, unsurprisingly, the study gets increasingly interesting the closer one gets to the Civil War (at least to those who find the constitutionality of the Maysville Road a little less interesting than the constitutionality of the Mexican War, or of the Missouri Compromise).

What I wonder, though, as I read Currie's latest, is how widely each of these books has been received. Is it just uber-law-dorks like me, who find pieces like Currie's Virginia Law Review article on the Confederate Constitution fascinating, who are captivated by these historical studies? Is there a broader audience, especially given the renewed focus on Congress as an interpreter of the Constitution?

I guess it just seems odd that Currie's massive project hasn't received (or at least hasn't appeared to receive) more attention, especially from those who base their arguments on the "original understanding," or even on early congressional intent. [For example, the current volume provides an exhaustive recounting of the 1840 Alexander McLeod affair, which gave rise to what remains today 28 U.S.C. [sec.] 2241(c)(4).]

My dorkiness notwithstanding, three cheers for Volume IV, the somewhat-cheesy Poe allusion notwithstanding. I can't wait for Volume V, even if I'm almost alone in that regard.

205 Years Later, Reiterating the Importance of the Election of 1800

I just finished Bruce Ackerman's alliterative and illuminating new book, "The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy," and have to say that, although I enjoyed it quite thoroughly, I'm not quite sure how it's all that new. Specifically, what I take to be Ackerman's central points -- that we have to understand the Election of 1800 as a hugely important foundational moment in American history; that the more important 1803 Supreme Court decision wasn't Marbury, it was Stuart v. Laird, in which the Court upheld the Judiciary Act of 1802 and allowed Congress to do away with the "Midnight Judges"; and that the more important period is the next decade, in which the Federalist Court quietly but surely ceded power to the Jefferson Administration, culminating with U.S. v. Hudson & Goodwin, in 1812 -- seem, with the possible exception of the last point, to be well-established, at least as historical canon.

At least the American historians, if not the American constitutional lawyers, have long since understood the undeniable significance of the Election of 1800, and the potential disaster that could have befallen the country had March 4, 1801, rolled around with[out] a settled outcome. [In my AP U.S. History class in high school, we learned all about the "Revolution of 1800."] Indeed, Akhil Amar's new book -- "America's Constitution: A Biography" [the link is to Jack Rakove's excellent review in The Nation] -- touches on much of this history in its discussion of the enactment of the Twelfth Amendment, hurried through Congress to ensure that history didn't repeat itself in 1804.

Instead, what really strikes me as "new" is the emphasis on Hudson & Goodwin, long a mainstay of federal courts classes, but hardly noteworthy elsewhere. In H&G, the Court, per Jefferson's first appointee -- Justice William Johnson -- held that there was no general federal common law of crimes, an important early move against federal supremacy, and in favor of state law.

I'm all for reasserting the importance of Hudson & Goodwin, even though, as Hart & Wechsler note, there was some disagreement four years later, in United States v. Coolidge, that H&G was to be so broadly read, and Justice Story always seemed inclined to the contrary.  Nevertheless, unless I'm missing something, that's really what I take as the bulk of the contribution to the literature made by Professor Ackerman's new book. 

Don't get me wrong. Not that everything any of us write (and especially someone as established as Ackerman) needs to be path-breaking. Anything but. But I was at least a little disappointed that much of the rest of the book does not do much more than bring together a history that has long-since been told. It brings that history together quite elegantly, to be sure, and the book is without doubt a worthwhile read. I would just have loved to see more.

Philip Roth: Men and Homo Academicus

I read my novel of the year yesterday: Philip Roth's The Dying Animal.  I'm told Roth is the great American novelist by people who purport to know.  And over the years, Roth books have routinely been the novels I turn to when I decide it is time to read fiction.  I'm always entertained and I always laugh.

But this most recent experience provoked this question in me:  Is reading Roth a particularly male pleasure?  Do women enjoy this type of literature?  I suppose there is a literature about this sort of thing published in places like the PMLA.  But mere anectodes are welcome here.

There is a clear professor pleasure to reading Roth's book that are written in his David Kepesh voice.  Academics can't help but see themselves and their parochial cultures on display.  Yet, I would think most law school academics find that the eros of the classroom reported by Roth (in The Dying Animal and elsewhere) is a bit more muted than it is in the colleges, the Socratic Method notwithstanding.  Don't get me wrong: plenty of professors prey on their students in law schools as well -- but there is something decidedly unsexy about professional training and something rather adult about the students, which is less true in the colleges.

Of Essays and Guns

Via Howard Bashman, I see that David J. Garrow has in the newest issue of the The Green Bag, a review of Jack Balkin, et. al.'s, What Roe v. Wade Should Have Said. I have blogged about the book here.

Garrow does not much like the book, partly because he thinks the opinions do not improve on Blackmun's curious opinion, and partly because he thinks the whole lot of them make what he considers to be obvious historical errors. A lot of these alleged errors are counterfactual questions about what various state legislatures would have done in 1973 or 1978 or 1998 if the court had decided Roe in a different way. Garrow offers not much more evidence for his view of the counterfactuals than the authors author for theirs, so I will abstain from that fight.

I'm posting this because of a paragraph from Garrow's review that criticizes Michael Stokes Paulsen's blasting dissent in the book, and in the process impugns the sincerity of both Paulsen and a large number of strong opponents of abortion. In response to Paulsen's dissent, Garrow writes:

In his subsequent comments, Paulsen writes that “I know my words will offend many,” but he rightly questions “whether decorum, in the face of evil, is really a virtue.” Roe in his view “constitutionalized private mass murder,” and Paulsen accordingly concludes that “[r]esistance to the Court’s decision is not only legally justified. It is a moral imperative.” ... Paulsen’s comments, however, completely but unsurprisingly beg the question of why, if women’s legal access to abortion is indeed “mass murder,” Paulsen is simply authoring academic essays rather than picking up the gun to prevent further wholesale killings. ... (T)he overwhelming majority of hard-core abortion opponents, like Paulsen, actually do not believe the literal truth of their sloganeering.

This is, in a word, nonsense.

Paulsen's dissent was inspired by the work of Robert Cover, primarily Robert Cover's Justice Accused and "Violence and the Word", which Paulsen's cannot cite because they were published too late, but also by Cover's earlier book review in the Columbia Law Review, calling out judges who failed to obstruct the Vietnam War. Of course, what Cover's research uncovered was that even judges who believed slavery to be unquestionably in violation of basic principles of justice, natural law, and all the rest, had surprisingly complicated (neither cowardly nor boldly obstructionist) responses to the problems of judicialized slavery in the Fugitive Slave Act, and so on. So it seems strange for Garrow to accuse Paulsen of bad faith without exploring (or even mentioning) the intellectual debt that the project owes.

The more general point, which Garrow could not dispute if he gave it a moment's thought, is that almost all of us almost all of the time do not react to murder (whether conducted wholesale or retail) by picking up guns and taking to the streets to stop it. Perhaps this is because we are collectively lazy, or selfish, or free-riders; perhaps this is because we recognize trumping moral principles of autonomy or humility or self-determination; perhaps this is because there are opportunity costs and we believe that we can do more good by penning provocative scholarship than by learning to operate an assault rifle; perhaps this is because we believe we would be shot in the chest before we could accomplish much of anything.

Or to be more concrete: Virtually all of us concede, I hope, that thousands upon thousands of people were murdered in Darfur or Rwanda, but almost none of us, whether we pen academic essays or not, picked up guns and bought plane tickets or tramp steamer tickets to go prevent the murders in Africa. Or anywhere else. Hundreds of people are murdered in Chicago or New York every year, but despite four years in Hyde Park, I never once attempted to obtain an illegal handgun and stalk the streets attempting to blow away violent thugs.

So it is hard to imagine why David Garrow assumes the results would be any different in the complicated realm of abortion. For those who (unlike me) believe that abortion is the murder of a human being, a large number of different moral obligations and practical considerations pull in different directions. It is preposterous to say that because people do not respond to abortion by joining an armed mob that they do not think it constitutes mass murder. Almost no academic responds to any mass murder by joining an armed mob.

Now one could have a theory of obligation that suggests that armed violence is a mandatory response to mass murder, but it would be a very strange theory of obligation, and there is no reason to suppose that Michael Paulsen or any other anti-abortion advocate has it. And therefore, there is no reason to suppose that Paulsen is being insincere when he says that he believes that legalized abortion consists of mass murder. Garrow is being both uncharitable and sloppy.

UPDATE: A dim bell of recollection went off in my head after writing this post, and I recalled that Paulsen actually confronted this problem in his dissent. He was dealing with the question of why people who believed that abortion was murder might fail to even speak out against it (let alone to form an armed mob), but this makes Garrow's decision to charge hypocrisy without confronting any of Paulsen's actual analysis even more odd. Paulsen writes:

It is personally hard for me to accept the fact that men and women whom I otherwise respect, and call my friends, embrace constitutionalized mass murder. The temptation is to back off a bit, to pull the punch so as not to breach social etiquette and fracture relationships, perhaps even to adopt a "live and let live" attitude (a phrase sadly ironic in this context) for the sake of some ostensibly larger value of social peace-- or acceptability in polite company.

Now I have a better sense of how the German people could have allowed Nazism and the Holocaust to occur. Before today's decision, I had always reacted to the tragic, awful history of World War II with amazement: How could a civilized people have allowed such a thing? How could the German people have tolerated the evisceration of their legitimate governing institutions, and the incubation of evil, for so long? How could they have just looked the other way? Or just gone along? What was the matter with them?!

The answer, I fear, is that it is hard to believe, almost impossible to believe, that one's respected elite peers, people whose intellect and passion one may well admire-- one's friends-- are advancing what is almost unqualifiedly evil, even when it is staring you squarely in the face. The cognitive dissonance is almost too much to bear. And so we tend to forbear from saying what we know is true and must be said. Evil marches on, unchecked, because to question it breaks the voncentions of polite society. Thus it is that a civilized society may well display a "screaming silence" in the face of atrocity.

A Pseudo-Intellectual Feast

For those of you who are putting together your Christmas/Hannukah/etc. shopping lists, or for those of you who (like me) are compulsive late-night Amazon purchasers, may I recommend The Complete New Yorker, a collection offering 80 years of The New Yorker, copied onto eight CDs, from its inception in 1925 through February 2005 (with annual supplements offered each year).  That's 4,109 issues, at a discounted cost on Amazon of $63.  It's really a fascinating archival history of the last 80 years, especially of America and American culture, albeit as seen through the lens of writers inhabiting that little island off the coast of America.

For lawyers and those interested in moments in American history, it offers a plethora of distractions.  To wit, based only on my stream-of-consciousness searches in the last day or so: a three-part profile of Felix Frankfurter dating from 1940 ("Some people claim . . . that although Frankfurter was hugely successful as a teacher, he didn't really teach law, he 'taught Frankfurter,' and Harvard let him get away with it."); a profile of A.A. Berle, Jr.; a report from the "I Am An American Day" ceremony in Central Park in 1944, at which Learned Hand delivered his Spirit of Liberty speech ("For me, writing anything is like having a baby"); a report from the early 70's on a reunion of Holmes clerks; a great Jeffrey Rosen piece on law and social norms scholarship at Chicago; Calvin Trillin's piece on HLS in the 80's, "Beirut on the Charles"; and so on. 

Then there are the other wonderful pieces: the famous Woolcott Gibbs profile of Henry Luce, publisher of Time and Life, written parodically in old-fashioned Time-speak ("Backward ran sentences until reeled the mind."); the uncollected J.D. Salinger stories, including "Hapworth 16, 1924," the last (but not best) word on the Glass family; early iterations of books by Truman Capote, John Hersey, Robert Caro; all the original Pauline Kael reviews; and then there are the ads, which are incredible.  My personal favorite: revisiting Elizabeth Wurtzel, back when she was an up-and-comer and not simply the pair of breasts that inspired a cinematic disaster, and her great review of Guns N' Roses' "Use Your Illusion" albums.  "[I]s Axl Rose a true paranoiac, or are his public tantrums and thumb-sucking bouts a deliberate play for attention?  [Time would answer that question in favor of the former thesis, I think.]  That this remains a question suggests that Guns N' Roses are the quintessential postmodern band -- they leave you suspecting that they just may be what they appear to be."  Excellent stuff.  

A Hiccup about the Summers Affair

Like Ethan, I also like to gripe about publishing outside the blogosphere.  This past summer I penned a review essay about two books about Harvard and the Summers debacle; though I haven't seen the hard copy yet, I was led to believe that it fronted the Jerusalem Post's Books section nearly two weeks ago.  I didn't link to the piece earlier a) because I actually didn't know when the review was coming out -- I had submitted it to my editor a few months ago and I only found out about its publication from a friend in Tel Aviv who read it; and b) because of the long lag time, it was published with a few out of date references that had to be changed (at least in the on-line version) and were changed just the other day.  While there were some other edits that happened w/o my knowledge, I can't make more excuses: it still -- in the main -- bears a passing resemblance to what I submitted...  Enjoy.

Elm Harbor and Fiction by Law Professors

Sadly, I have spent many hours of my last week before classes begin finishing Stephen Carter's The Emperor of Ocean Park.  My wife grew tired of my complaining about the book, since I seemed not to be able to abandon reading its 650 pages for more useful activities in the days before commencing my teaching career.  It really wasn't a very good book (the mystery element is engaging, if absurd); but something about peering into Carter's head through the book was fascinating.

I realize I should try to treat it as fiction, though I'm loathe to do so because I usually read only a single work of fiction per year--and this would really have been a bad candidate for that honor.  Despite Carter's protestations on the final pages of the book that the characters in his Elm Harbor (a/k/a New Haven) law school have no relation to his colleagues at Yale--and that the book cannot be read as a roman a clef for anything, anyone who has anything to do with Yale Law School will not be able to help trying to figure out which "fictional" people are composites of whom.  It was hard for me not to see Ackerman and Balkin, Guido and Amy Chua, among others, woven into the fabric of the main characte's colleagues.  And of course the main character has to be Carter himself, albeit a marginally fictionalized one.  It is just hard to believe that a law professor with little evident talent for fiction-writing could truly succeed at writing a good novel that is fully "fictional," especially when his chosen material is so close to home.  I imagine that many lawyers have some quite bad "fictional" book they've written at some time; most of us, however, realize these books should never see the light of day--and that if we are going to give fiction-writing a go, we should write a second book, where we haven't put ourselves as the main character.  (Full disclosure: My novella, Not a Novel Idea: A Tragicomedy in Four Acts, is one act away from completion.  I'm a main character, of course, and I know it should never be published.)

Obviously, some people do write themselves into their books very well (but god does that Everything is Illuminated movie have bad previews).  Nevertheless, Carter's was just one that kept me in it mostly because I liked thinking about how the book reflects on the real Stephen Carter (although I never had a class with him to get a first-hand impression).  Some things that were on display: his religion, his views on race (and the relations between the "darker nation" and the "pale" one), his perspective on (very petty) academic hierarchies that must surely exist at Yale, adultery, the law school deanship game, and the judicial appointments game. The protestations notwithstanding, I suspect this book will be of interest to those with connections to Elm Harbor--and those that care to peer into the mind of one of Yale Law School's few black faculty members.  Much is illuminated. 

A Few Words on "Divided By God"

I promised yesterday a mini-review of Noah Feldman's recent book, Divided By God: America's Church-State Problem -- And What We Should Do About It.  Like a number of other readers, I am more convinced by what lies on the left side of the hyphen in the title than on the right, although the "what we should do about it" part ultimately makes up only a small part of the book.  Still, I am not sure Feldman would have published it but for the concluding chapter (and certainly not with Farrar, Straus & Giroux), so I think one can be forgiven for focusing on it a little.

I don't have the book in front of me and so won't go into it at length; please pardon me for any consequent crudeness in my discussion.  As I suggested, it's a very fine history of church-state issues in America, and serves a valuable function of setting out the ways in which coalitions have formed and shifted, coalescing around different shades of ideas.  In short, it suggests that the debate has been a moving target, both in terms of the constituencies on either side and the nature of their respective views.  It certainly makes clear the centrality of immigration to this evolving process.  And I agree with that portion of Feldman's conclusion that suggests that religious views ought to be welcome in the marketplace of ideas, including political debate and decision-making, although my sense is this idea has become less controversial in the legal academy over the last 20 years.

In his conclusion, Feldman argues (in a crude nutshell) that in order to resolve the church-state impasse, the Court should more or less completely reverse itself.  On the one hand, legal secularists should surrender on the issue of whether the Constitution permits “public manifestations of religion,” allowing greater use of religious language in such matters as the Pledge of Allegiance, as long as the state does not act coercively.  On the other side, values evangelicals should accept a constitutional rule forbidding the use of any government money to support religious institutions, even if the money is distributed on a neutral basis, as with school vouchers.  In short, “no coercion and no money” should be the slogan of a reshaped church-state law.

I have some problems with this conclusion -- after the jump....

I have two fundamental problems with Feldman's conclusion.  The first is that it is difficult to tell whether Feldman's solution is as radical as it sounds.  If he means what he says, it would signal a significant change on both sides of the equation -- symbolic support and funding.  But if one reads the book carefully -- and again, it's not before me as I write -- it seems to me there is at least some evidence that his proposal would maintain a lot of the decisions striking down public symbolic support for religion, and might not sweep as broadly as he threatens on the funding side of the equation either.  I think this tendency in his book is probably more preservative of current law on the symbolism side than on the funding side, but there are some indications that more of the status quo would be maintained on both sides than his slogan would suggest.  If this is so, one might question either whether there is any need to rethink the doctrine if the law is going to remain more or less the same, or whether he might convince people to sign on to his solution without understanding the precise nature of the deal he's proposing.  I don't mean to accuse him of bad faith, as it's quite clear this is a fair and thoughtful book.  But I think he would have been well served to be far more specific about what practices stay or go under his proposed settlement of the church-state debate. 

Assume, though, that he means what he says and that he really would change current law in both the symbolism and funding areas.  I have some problems with this.  The first, quite bluntly, is that I find myself more or less sympathetic to some version of the current settlement -- in which religious speech linked in some ways (whether by endorsement, coercion, etc.) to the state is greatly circumscribed, religious speech in public fora is broadly and presumptively permitted, and religious institutions are broadly entitled to equal access to funding and participation in the public sphere.  Feldman does not convince me this settlement is wrong.  Second, he suggests that his proposal is valuable because it will reduce religious strife.  I think he is mistaken about this.  Indeed, I don't want to personify myself as the classic reasonable man, but I find I would be upset by both aspects of his solution: by the privileging of state-supported religious speech and the diminution of equal access to funding for religious institutions.  I simply don't think either side would be satisfied by the proposal he makes.  To the contrary, I think one of the lessons of his book is that, given the perennial nature of the debate on church-state issues, changing the compromise simply resituates the debate elsewhere, in slightly different terms.

I thus agree with Rick, who questions Feldman on the funding side of the equation.  (See here.)  But (perhaps unlike Rick, who had less to say about this aspect of the proposal) I also disagree with Feldman on the symbolic speech side.  Again, much turns on what, precisely, Feldman would or would not change in current law.  But I think he is too glib in saying that the kinds of injuries involved in such issues are really just "an interpretive choice to feel excluded by the fact of other people's faith."  There may be circumstances in which this is true, but there may be others in which the feeling of exclusion is both reflexive and quite appropriate -- is, in fact, the right interpretation.  (In thinking about this as I read the book, I found myself thinking back to footnote 1 of the Santa Fe Independent School District v. Doe case.  There's a reason Doe is a "Doe" here, and it doesn't just turn on interpretive choice.)

As I said above, I think lots of folks already agree with Feldman that religious views ought to be welcome in the public/political sphere, so this aspect of his proposal should be uncontroversial -- but I don't think this assertion inevitably leads to the deal he proposes.  Thus, although I am sympathetic to this aspect of his argument, I just don't think it's much of a player in his discussion.  Really, the meat of the work in the conclusion lies in the symbolic/funding areas, and I was not convinced on these parts of his argument.  However, as I said at the outset, that's just one chapter of an otherwise valuable book.

Chutzpah and Beyond

Kind of interesting article at The Nation about Norman Finkelstein's Beyond Chutzpah, a book attempting to debunk Alan Dershowitz's The Case for Israel.  Aside from the obvious merits of pointing out Dershowitz's tendency to overstate that very case for Israel, the article reveals that Dershowitz has gone to great lengths to prevent criticism of "his" "work" from even being published.  The depravity is astonishing.  Apparently, Dershowitz sent letters to Gov. Schwarzenegger, and the Directors of The New Press, and the University of California Press to try to get each to intervene in the publication decision.  A libel suit may be next--with Cravath representing Dershowitz.  Stay tuned.

More on Greenhouse and Clerking

Last week, in my superficial review of Linda Greenhouse’s Blackmun book, I included a postscript indicating continued suspicion of David Garrow’s thesis that Blackmun gave too much responsibility to his clerks in drafting opinions. I felt that nothing in the book could really be considered corroborating evidence for his thesis.  Obviously, I have not personally seen the Blackmun papers so my thoughts on this subject are of limited value—but I noted that nothing in Greenhouse’s account suggested to me that Garrow was right in his Legal Affairs article.  Even if he discovered that Blackmun often adopted clerks’ proposals and drafts, nothing about the evidence he uncovered or that Greenhouse reported suggested to me anything untoward (or, more importantly, unusual).

Professor Garrow replied to my post and asked me to read his own review of Greenhouse’s book in TNR here.  I’ve now read that review and remain convinced that his thesis is overblown.  The Article III veils notwithstanding, there is just nothing extraordinary about the reality that clerks have a lot of power.  Sure, some judges write the first drafts of their own opinions.  But these are not always the best judges.  And they are surely in the minority (at least on the Courts of Appeals, if not the Supreme Court).  More, clerks have substantial power even if they don’t write drafts: at the Supreme Court, eight Justices’ clerks review petitions to decide on the Court’s agenda; on the Courts of Appeals, clerks are very active in deciding which cases are heard en banc  In all cases, clerks can and do lobby one another and lobby their judges for particular results and particular turns of phrase, with or without a paper trail.  In short, Garrow may be right to be critical of clerks’ power, but there is little (secondary) evidence that convinces me that Blackmun was a particularly egregious offender.

I have nothing interesting to say about Garrow’s other thesis—that Blackmun was permissive with his clerks’ disrespect for other chambers.  I suppose that is bad.  But would I call Blackmun “far from [a great jurist]” for this impropriety, as Garrow does in the TNR review?  Far from it.

Becoming Justice Blackmun

It turns out that starting a law professor job in a new city does not actually leave one with tons of time to write or blog.  I had planned on doing a short review of Linda Greenhouse's book on Justice Blackmun but just could not find the time.  I did find the time to read it, however, and think it makes for very useful reading as we contemplate what a retirement might mean (as Blackmun was the last Justice to retire). 

The book has some fun facts that the average Con Law person may not know (in no particular order): 

1.  Rehnquist's middle name used to be Donald until he changed it to his grandmother's maiden name (Hubbs).  And you thought he was no feminist!

2.  Blackmun's ashes were spread all over the place, upon his request.

3.  Blackmun played Justice Story in Spielberg's Amistad.

4.  Kennedy asked Blackmun not to step down.

5.  Blackmun gave Ginsburg grades (and none too favorable ones) when she appeared before the Court to argue.

Aside from the trivia, though, more can be said for why the book is important to read now, before we embark on a big fight over a vacancy.  Nixon appointed Blackmun--and Blackmun turned out to be no Nixonian (much like Bush I appointed Souter--and Souter turned out to be no Bushie).  In short, Justices aren't quite as predictable as we assume.  And each grows to deal with his or her own personal demons: in Blackmun's case, Roe clearly became a preoccupation.  He wanted to save it; he wanted to justify it; he wanted to refine it.  There were times he seemed to be holding onto Roe for the wrong reasons.  It was an accidental legacy in many ways but grew to become a central part of his identity.  We just can't predict very well what sorts of assignments have the capacity to change a Justice's trajectory.

This is, of course, not to say that each side in the battle (that may or may not happen this summer) shouldn't advocate vigorously for whomever it thinks is the most qualified and the most desirable to seat on the Court.  It is only to say that psychological profiling may be as useful as investigating a nominee's paper trail--and that chance will play a role in any Justice's development.

PS:  As I read Greenhouse's book, I tried to see if David Garrow's thesis (that Blackmun gave his clerks too much freedom and power) seemed confirmed at all by what she was reporting.  I have to say that I was unpersuaded.

Real Estate Signalling

If you've read Freakonomics, then you're already disabused of the notion that realtors are motivated to sell your house at the highest price or are straight forward in their written descriptions of houses.  In driving through our neighborhood, I've started noticing real estate yard signs.  First, the longer a house stays on the market, the more additional hanging signs will appear below the main sign, like a "p.s." or an addendum.  The mini-signs usually say "open Sunday" or "nice interior" or "new price." 

However, some real estate yard signs have a mini-sign on top, where the "sold" sign usually goes.  This mini-sign reads, "By Appointment" or even "By Appointment Only."  This sign intrigues me because I'm pretty sure that without that sign, I'm still not meant to just ring the doorbell and walk right on through.  We have had the strange fortune to sell four houses in our married life.  We have never had a "By Appointment" sign, but we have never had anyone just ring the doorbell.  So what is the purpose of this sign?  My guess is that it signals that this house is super.  It is super, it will go fast, and it's a lot nicer than your house.  It's such a nice house that we can't just let everyone go through it.  Of course, if you call, you'll get an appointment without a credit check or a list of references, just like you can get an appointment to see any other house with an MLS listing.

Remember the old American Express ads that told you that "membership has its privileges"?  We crave exclusivity, even if it costs us an annual fee and is completely illusory.

In the Shadow of the Law

Our guest blogger Kim Roosevelt has done something only a few law professors have done -- write a novel.  I just checked out the page for the book on Amazon.com and it sounds terrific.  Here's a review from Publisher's Weekly:

Starred Review. This outstanding debut goes behind the scenes at Morgan Siler, one of Washington, D.C.'s most powerful K Street law firms, as several lawyers become embroiled in two difficult cases: a pro bono death penalty case in Virginia and a class action suit brought against a Texas chemical corporation after an explosion kills dozens of workers. Assigned to the pro bono case is the earnest, rumpled first-year associate Mark Clayton, who wonders, as he struggles with sleep deprivation and trying to reach his billable-hours target, if he hasn't made a terrible career choice. Also on the case is the brilliant, cocksure young lawyer Walker Eliot. Leading the Hubble Chemical defense is the ferocious litigator Harold Fineman, and lording over them all is Peter Morgan, the supremely confident, never-satisfied managing partner of the firm. Though the novel features plenty of satisfying twists and turns, the book transcends the legal thriller genre. Roosevelt, who practiced and teaches law and who once clerked for Justice Souter, offers a fascinating insider's look into the culture of a high-stakes firm, while also presenting a considered meditation on the law itself and its potential to compromise those driven to practice it. Most of all it's the vividness and complexity of the characters—drawn with the precision and authority of a winning legal argument—that heralds the arrival of an exciting new voice.

I'll be getting a copy. 

Conservative Scholars on the Most Harmful Books of the 19th and 20th Centuries

What is the most harmful book of the past two centuries as judged by a group of 15 conservative “scholars and public policy leaders”?   Is it Hitler’s Mein Kampf?  No.  It’s Marx and Engels’s The Communist Manifesto.  According to Human Events, "the national conservative weekly":

HUMAN EVENTS asked a panel of 15 conservative scholars and public policy leaders to help us compile a list of the Ten Most Harmful Books of the 19th and 20th Centuries. Each panelist nominated a number of titles and then voted on a ballot including all books nominated. A title received a score of 10 points for being listed No. 1 by one of our panelists, 9 points for being listed No. 2, etc.  Appropriately, The Communist Manifesto, by Karl Marx and Friedrich Engels, earned the highest aggregate score and the No. 1 listing.

Not only did The Communist Manifesto beat out Mein Kampf, but it did so by an enormous margin, scoring a 74 to Mein Kampf’s 41. 

The judges of this rather perturbing list are Arnold Beichman (Hoover Institution); Prof. Brad Birzer (Hillsdale College); Harry Crocker (Regnery Publishing, Inc.); Prof. Marshall DeRosa (Florida Atlantic University); Dr. Don Devine (American Conservative Union); Prof. Robert George (Princeton University); Prof. Paul Gottfried  (Elizabethtown College); Prof. William Anthony Hay (Mississippi State University); Herb London (Hudson Institute); Prof. Mark Malvasi (Randolph-Macon College); Douglas Minson (The Witherspoon Fellowships); Prof. Mark Molesky (Seton Hall University); Prof. Stephen Presser (Northwestern University); Phyllis Schlafly (Eagle Forum); and Fred Smith (Competitive Enterprise Institute).

The full list of books:

1. Marx and Engels, The Communist Manifesto

2. Hitler, Mein Kampf

3. Mao Zedong, Quotations from Chairman Mao

4. Kinsey, The Kinsey Report

5. Dewey, Democracy and Education

6. Marx, Das Kapital

7. Friedan, The Feminine Mystique

8. Comte, The Course of Positive Philosophy

9. Nietzsche, Beyond Good and Evil

10. Keynes, General Theory of Employment, Interest and Money

It is hard for me to describe this list without using words like “ridiculous” and “disturbing.”  But the list of honorable mentions leaves me speechless.  Among those books receiving honorable mentions are Mill’s On Liberty,   Darwin's Origin of the Species,   and Freud’s Introduction to Psychoanalysis.  There you have it.   

Thanks to LuminousVoid for the pointer.

Jim Rossi's new book

My friend and FSU colleague, Jim Rossi, has a new book out, which I thought I'd plug here, having seen the notice also on Larry Solum's website.  Jim's book is called  Regulatory Bargaining and Public Law (Cambridge University Press, 2005), and it has the ISBN no. 0521838924; it is available June 1, 2005.  Here's some of the description.  (Maybe we'll get Jim to blog a bit about the book here shortly.)

In this book, Professor Rossi explores the implications of a bargaining perspective for institutional governance and public law in deregulated industries, such as electric power and telecommunications. Leading media accounts blame deregulated markets for failures in competitive restructuring policies, as with the California electricity deregulation fiasco. However, Professor Rossi argues that governmental institutions, often influenced by private stakeholders, share blame for the defects in deregulated markets.

Among the issues address in this book are consumer service obligations, constitutional takings jurisprudence, the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust enforcement, and federalism disputes. Professor Rossi’s book warns against a ‘deference trap’ leading courts to passive roles in conflicts involving political institutions, such as regulatory agencies and states. To address such concerns, Professor Rossi’s book suggests a unified set of default rules to guide courts in the United States and elsewhere as they address the complex issues that will come before them in a deregulatory environment.

The first part of the book explores the minimal role that judicial intervention played for much of the twentieth century in public utility industries and how deregulation presents new opportunities and challenges for public law. The second part of the book explores the role of public law in a deregulatory environment, focusing on the positive and negative influences it creates for the behavior of private stakeholders and public institutions in a bargaining-focused political process.

Jim Rossi is Harry M. Walborsky Professor of Law and Associate Dean for Research at Florida State University College of Law.

Advanced Praise:

Regulatory Bargaining and Public Law is a must-read for anyone with a

serious interest in the modern law of regulation. Rossi analyzes the new forms of regulation – misnamed “deregulation” in the popular press and in much academic work – using techniques originally developed for analyzing contracts. Rossi’s approach yields fresh, new insights.
- Matthew Spitzer, University of Southern California School of Law

Jim Rossi has thought long and creatively about the role of courts in our evolving deregulated economy. He warns against a “deference trap” leading courts to passive roles in conflicts involving political institutions like regulatory agencies and states. When doctrines like the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust, and federal preemption traditionally signal “hands off” to the courts, a new sensitivity to incentives and the context of institutional bargaining are sorely needed.
-Judge Richard D. Cudahy, U.S. Court of Appeals for the 7th Circuit

As Professor Rossi shows, the term "deregulation" may be the greatest misnomer in the legal lexicon, for rather than eliminating regulation it replaces one regulatory scheme with a new and even more complex one. Regulatory Bargaining and Public Law analyzes the resulting interactions between regulators, industry, and other groups, demonstrating that these interactions can either further or frustrate the goal of consumer welfare. Public policy analysts, legal scholars, and students of political economy will all find the book an invaluable resource.
-Daniel Farber, University of California, Berkeley

Jim Rossi's Regulatory Bargaining and Public Law should be on the bookshelf of everyone interested in the regulatory process, antitrust, and public law. Beginning with a historical perspective that stretches back to the 1830s and the Charles River Bridge case, Rossi carries our conception of regulated industry away from traditional neoclassical notions of natural monopoly and rate-of-return regulation to more Coasian ideas that each instance of regulation is a special kind of bargain with the sovereign. That is, rather than taking areas of enterprise out of the market, so to speak, regulation is simply a special case of market bargaining. In the process Rossi explores the consequences of deregulation and other alternatives to traditional cost-of-service rate making. Of particular concern is the divergence of public and private interests that can occur when firms and the interests groups aligned with them try to obtain the best deal that they can through the regulatory bargaining process. This model helps Professor Rossi develop a cogent set of explanations for what went wrong in certain cases of deregulatory failure, such as the California electric power crisis.
-Herbert Hovenkamp, University of Iowa

A Dissent From the Opinion of Professor Tribe

As many law-blog types have no doubt already read, Professor Tribe has announced he will be setting aside, at least for now, his plans to publish the second volume of the third edition of his magisterial constitutional law treatise.  (For discussion, see, e.g., here and here.  Tribe's letter(s) explaining his decision can be found here.) 

I've quickly read Professor Tribe's discussion of his reasons for abandoning the project for now, and although I think I understand his reasons for doing so, I'm not quite sure.  The quick version -- expressed in a letter to Justice Breyer, who apparently had inquired as to the status of the second volume -- is that we are at "a fork in the road" on a variety of fundamental issues; that the current conflicts are especially heated; and that in these circumstances, a work that "organizes the corpus of decisional law -- that identifies, and reflects critically on, the major themes and directions of movement" -- is not appropriate or possible right now.  Or, to draw from his longer letter, "no treatise, in any sense of the term, can be true to this moment in our constitutional history -- to its conflicts, innovations, and complexities."  I suppose this is easy enough to understand; but it is a decidedly short version of his explanation, and I am still sorting through the longer version.

In any event, I think it's too bad that Tribe has dropped his plans to publish volume 2, and I wish (doubtless futilely) that he would reconsider.  Let me make a few points about his explanation. 

First, there is no doubt that there are any number of widely divergent points of view on constitutional methodology on the Court and in the academy right now, and that, at least where the courts and the political arena intersect, those debates are very heated at the moment.  So I am sympathetic.  But I wonder if Tribe is not too close to the maelstrom he describes.  Although the fissures may be particularly deep and evident right now, there is also a considerable amount of bridge-building across those fissures.  As Tribe himself notes, for instance, many scholars now pay closer attention to constitutional text and structure in their analysis.  Similarly, many scholars are more attentive to history, and more careful in their use of history.  In a host of other areas -- the use of foreign law being a prime example -- there is no doubt that the debate is still unresolved, but I think it is also true that the players in these contests at least are striving towards a common language in debating these issues.  In short, I do not think the times make a treatise impossible.  Indeed, in a host of areas involving individual rights, there is a substantial amount of consensus, whether right or wrong, that cries out for treatise-type treatment: I think in particular of the broad movement toward a speech- and equality-based vision of the Religion Clauses.

Second, I think Tribe overstates the extent to which a treatise was unproblematic in 1978, 1988, and 2000, when he published his other iterations of the treatise.  He suggests that the "deeper fissures" that Roe v. Wade occasioned "had not yet become so prominent as to demand central treatment -- or, more to the point, so prominent as to preclude unified treatment."  Maybe so in 1978, but was this true in 1988?  And were the fissures in the federalism debate not both prominent and unresolved in 2000, when he issued the structural half of the third edition of his treatise?

Third, I think Tribe conflates two different visions of treatise-writing itself.  One involves "organiz[ing] the corpus of decisional law" -- "identif[ying], and reflect[ing] critically on, the major themes and directions of movement."  I think the time is always ripe for such an endeavor -- not least at those times when the major themes and directions of movement are in flux, as they arguably are right now.  The other involves "propound[ing] a Grand Unified Theory" -- having "a vision capacious and convincing enough to propound as an organizing principle for the next phase in the law of our Constitution."  These tasks are, of course, not necessarily the same.  But even if Tribe feels he has no such vision to contribute right now, I am not sure this task is as essential.  More to the point, even if a grand unifying vision that points to the future of constitutional law is inaccessible to Tribe right now, there is still room for a grand unifying vision that encapsulates this moment in time -- that shows how we have come to the end of certain roads and, perhaps, the beginning of others, that seeks to fix a dot on the map and say, this is where we are now.  That vision alone would contribute mightily to the next movements on the map.

Fourth, I think Tribe overstates the adequacy of the substitutes for his treatise.  I do not say this as a Tribe-ean acolyte; one can find an endless amount to disagree with in his treatise, whether one is a sworn opponent of Tribe or a friend.  But it is precisely the contestable nature of Tribe's treatise that makes it such a rich and valuable read.  No other major con law treatise comes close in richness to Tribe's work.  I regularly read the Nowak and Rotunda treatise for a fairly close reading of cases when prepping for class, but it often alternates between two much and too little detail, and its overall descriptive vision of constitutional law and methodology is, I think, lacking.  I read Chemerinsky's treatise even more often, and my students swear by it; but although it does a better job of synthesizing both the general structure of the law and the underlying issues in any given area, it is ultimately a fairly simple primer in the area.  If I truly want to grapple with an area -- to really confront and think through the deep issues -- I must turn to Tribe.  I miss the chance to do that with the individual rights materials right now, and so much has happened since 1988 in this area that would make Tribe's treatment particularly valuable.  Nor, I think, would Tribe's articles be an adequate substitute.  I think those works fill a different role and, to a substantial degree, are written in a different voice.  Although, as I say, Tribe's treatise often makes contentious arguments, it is not simply a work of advocacy; it does not just "push constitutional thinking in new ways," but engages in an act of real synthesis that necessarily involves taking stock of competing arguments and laying some groundwork for an over-all understanding of the field.

Fifth, although Tribe acknowledges the availability of "online" and "real time" constitutional law sources, he does not really acknowledge the changes in his own thinking about his treatise, or about how to make it available, that those technologies make possible.  This is true in a practical sense: if he does not feel he can issue a once-and-for-all statement about these issues, why not issue an on-line version of the treatise, subject to updates?  Indeed, if he does not want to commit to the labor involved in updating the treatise, why not take a page from Wikipedia and other online information sources, and make the treatise itself the beginning of an online, hypertexted, discussion, a group effort at synthesis?  No doubt other such methods of making the material available are possible, and I welcome comments on this point.

But this last argument is not true on just a practical level; it also invites him to think differently on a conceptual level about his treatise.  Why think of volume 2, or the third edition as a whole, as having to utterly capture and extend the vision of the Constitution at this moment in time, let alone into the future?  Why not acknowledge the transience of the enterprise -- a transience that is all the more apparent when publishing lead times have shortened and any number of contemporaneous reactions to events are now instantly available -- and publish, whether online or in print, even if the treatise cannot perfectly capture the moment, even if events are in the saddle?  I called Tribe's treatise magisterial, a label I think appropriate even if one disagrees with some or many elements of it.  But I fear the author is now a victim of the magisterial status of the work; I fear that he is experiencing a postmodern kind of anxiety of influence, with Tribe3 cowed by Tribe1 and Tribe2.  Perhaps this is a moment that defies magisterial treatment; but there is still much room, and need, for broad and deep synthetical work, even if it cannot point unerringly in one direction. 

Let me end on a more personal note.  Although, as I say, I am not a Tribe acolyte, I have greatly enjoyed and benefited from his treatise.  I confess that I am one of those individuals who, from the moment volume 1 of the third edition came out, harried every Foundation Press representative I could find for news of volume 2's release (sorry, folks).  I agree that Professor Tribe, having assumed the burdens of authorship, is not permanently obliged to his readership to keep the enterprise going forever.  Just the same, I now feel bereft.  I have never expected that the treatise could provide a grand unifying vision that truly could direct the movement of such a polyphonic work as interpreting the Constitution.  But I welcomed the chance to immerse myself in such a rich synthesis of the debate -- and such a rich contribution to the debate.  If the voice of the people can sometimes be enough to revive truly ephemeral television shows, perhaps Professor Tribe can yet be persuaded to make the second volume available, if only in an online form that recognize the necessarily transient nature of the work.  If Professor Tribe had simply tired of the work, I would award the laurel, swallow my disappointment, and be done with it.  But to the extent he bases his decision on arguments that I don't think obviate the need for or role of the treatise, I hope he can be persuaded to reconsider. 

The Hunting of the Snark

After a long week laboring  in the vineyards of indigent criminal defense, sometimes only the poetry of  Lewis Carroll will suffice.  Carroll's  fabulous poem, "The Hunting of the Snark" (sadly, less well-known in the popular imagination than "Jabberwocky"), remains, for me, the  ultimate description of the occasional absurdities of the criminal justice system:

(Excerpted from Fit the Sixth, the Barrister's Dream )

He dreamed that he stood in a shadowy Court,
Where the Snark, with a glass in its eye,
Dressed in gown, bands, and wig, was defending a pig
On the charge of deserting its sty.

The Witnesses proved, without error or flaw,
     That the sty was deserted when found:
And the Judge kept explaining the state of the law
     In a soft under-current of sound.

The indictment had never been clearly expressed,
     And it seemed that the Snark had begun,
And had spoken three hours, before any one guessed
     What the pig was supposed to have done.

The Jury had each formed a different view
     (Long before the indictment was read),
And they all spoke at once, so that none of them knew
     One word that the others had said.

"You must know ---" said the Judge: but the Snark exclaimed "Fudge!"
     That statute is obsolete quite!
Let me tell you, my friends, the whole question depends
     On an ancient manorial right.

"In the matter of Treason the pig would appear
     To have aided, but scarcely abetted:
While the charge of Insolvency fails, it is clear,
     If you grant the plea 'never indebted.'

"The fact of Desertion I will not dispute;
     But its guilt, as I trust, is removed
(So far as related to the costs of this suit)
     By the Alibi which has been proved.

"My poor client's fate now depends on you votes."
     Here the speaker sat down in his place,
And directed the Judge to refer to his notes
     And briefly to sum up the case.

But the Judge said he never had summed up before;
     So the Snark undertook it instead,
And summed it so well that it came to far more
     Than the Witnesses ever had said!

When the verdict was called for, the Jury declined,
     As the word was so puzzling to spell;
But they ventured to hope that the Snark wouldn't mind
     Undertaking that duty as well.

So the Snark found the verdict, although, as it owned,
     It was spent with the toils of the day:
When it said the word "GUILTY!" the Jury all groaned,
     And some of them fainted away.

Then the Snark pronounced sentence, the Judge being quite
     Too nervous to utter a word:
When it rose to its feet, there was silence like night,
     And the fall of a pin might be heard.

"Transportation for life" was the sentence it gave,
     "And *then* to be fined forty pound."
The Jury all cheered, though the Judge said he feared
     That the phrase was not legally sound.

But their wild exultation was suddenly checked
     When the jailer informed them, with tears,
Such a sentence would have not the slightest effect,
     As the pig had been dead for some years.

The Judge left the Court, looking deeply disgusted:
     But the Snark, though a little aghast,
As the lawyer to whom the defense was entrusted,
     Went bellowing on to the last.

Thoughts on "Becoming Justice Blackmun"

My law school's library was good enough to forward to me Linda Greenhouse's new book, Becoming Justice Blackmun, which I read this weekend.  In light of the recent meshugoss over David Garrow's description of Justice Blackmun's papers, it's an interesting read.  I don't think it's really at cross-purposes with Garrow's allegations, although its focus and tone are different, so it doesn't precisely buttress Garrow either.  It quotes some of the same arguably intemperate language in clerk memos, so in that sense it supports his claims.  But it doesn't take the view that he was disengaged, or that he let his clerks run the show, which is a major thesis of Garrow's article.  If anything, it suggests he was a fairly close monitor of the cases and the other Justices' votes.

A few other observations on this book, which has already been widely reviewed.  First, it is a modest book -- in its aims and in its achievements.

It is not a thorough-going biography, but simply a record of fairly short-term research into the Blackmun papers at the Library of Congress.  And in its focus, within those papers, on abortion, capital punishment, and gender equality, it slights any number of other areas of inquiry into Blackmun's work on the Court.  Even where it looks more broadly, as in its brief discussion of commercial speech, it sees things through the lens of abortion (as, indeed, Blackmun himself might have done). 

In her NYT Book Review yesterday, Laura Kalman remarks that Blackmun's daughters "shrewdly decided to give" Greenhouse "a two-month head start" in looking at the papers for a series of articles in the Times, which evolved into this book.  Shrewd it was -- that special access, along with the short deadline, likely contributed to fairly positive spin Greenhouse gives to Blackmun's judicial career, in contrast to Garrow's critical examination.  (Although the heat of Garrow's discussion might also be attributed to the short span of his own review of the Blackmun papers.  It takes time to come to a properly milquetoast assessment.)  And it decidedly reads like a journalist's book-length work: if the content will put no one to sleep, the style won't keep anyone awake either.

Second, Blackmun's papers appear to continue to justify the past description of him as sensitive -- unduly sensitive, I think -- to slights.  To take an example, Blackmun complains at one point to Burger about having been assigned too few assignments to write the majority opinion.  Although he has missed an argument session during that term, so has Justice Brennan, but Brennan has more assignments.  Nevertheless, the variation is small: Blackmun has ten assigned opinions, and the highest number of assignments is 14, for Burger and Stevens.  Blackmun does not simply urge more assignments, but says the low number "makes me feel somewhat humiliated not only personally, but publicly."  At another point, in urging the Court to use an abortion case as a vehicle for overturning Roe v. Wade, the S-G's office cites Blackmun's opinion in the Garcia case, which had overturned a 9-year-old precedent, as evidence that the Court has not hesitated to overrule prior interpretations of the Constitution.  Blackmun writes that this citation "is a personal attack on me."  These kinds of reactions are liberally in evidence throughout the book.  (I should acknowledge the possibility that the S-G's office did intend the cite as a pointed reference.  If that were true, it would suggest that Blackmun was not the only one with too personalized a view and/or too much time on his hands.)

Third, the book strikes me as again confirming that too many members of the Court, or their clerks, tend to personalize the issues before the Court, or to engage in nose-counting with relatively little regard to questions of principle.  A decidedly trivial example of this is Blackmun's description of the gathering votes on a pending abortion case: "The 5 coalesce."  More pointedly, on the same page of the book he refers in his notes to three Justices as "the Reagan crowd cabal." 

The description may be accurate (as might be a hypothetical reference, in a conservative Justice's notes, to "the Warren Court relics").  But it suggests a fairly consistent view of the Court and its work as reducing to people and politics.  Perhaps my experience was unusual, or I was naive, but I didn't see much of this kind of behavior in my own clerkship on a federal appeals court.  (It may also have something to do with the geographic dispersal of appeals court judges, unlike the single location of the Court and its Justices; the variation in panels on federal appeals courts; and the greater number of routine cases that face the lower courts.)  As I have mused in this space before, these accounts lead me to wonder whether the Supreme Court clerkship selection process in some way favors folks who are not only legally brilliant, which I will gladly assume they all are, but who also take a somewhat unduly personalized, politicized, and combative view of the work of the Court.  I don't know that this is so, and certainly that kind of clerk will be overrepresented when journalists discuss the historical record, given the more quoteworthy contents of their internal memos.  But there are reasons to think that it could be true: these people might stand out more in the clerk hiring process, and clerk selection committees and sitting clerks might perpetuate the trend. 

In any event, the personalized nature of the clerks' discussion of the cases, and of Blackmun's own notes, is striking.  For all that the Court and its observers are eager to emphasize the crude reductionism of referring to judges according to terms like "liberal" or "conservative," or according to the party of the President who appointed them, this book does not do much to refute the use of those categories.

Fourth, the book casts an interesting light on Garrow's discussion of the intersection between the Court and electoral politics in the Casey case, and whether Blackmun was unduly concerned with timing the case in light of the 1992 election.  In Greenhouse's account, the parties that most heavily weigh the politics of the case are the litigants, the abortion rights groups: they hasten their preparation of the cert. petition in Casey in order to get it before the Court, so that the election can "be a referendum on the right to abortion."  (Further evidence that no party should take seriously the political judgments of its single-interest constituents.)  At that point, the question is whether the Court should grant cert. immediately, or hold it over until the next Term, such that any decision won't issue until after the election.  (As it turned out, the Court did grant cert. in the 1992 Term.)

In this scenario, since the petition is already before the Court, it would be reasonable to suggest that delaying argument would be improperly political, and Blackmun's clerk apparently concluded that Rehnquist and O'Connor were thinking along these lines.  The non-political thing to do would be to simply vote to grant or deny cert., without regard to timing.  So do Blackmun's chambers emerge with clean hands on this point? 

No.  Even Greenhouse's account suggests that his clerks have the election on their minds: she quotes Molly McUsic's memo urging an immediate hearing, so women will have "the opportunity to vote their outrage."  And Greenhouse omits another part of the memo discussing the likelihood of a new President appointing pro-choice nominees, as well as a subsequent memo by Stephanie Dangel suggesting that the famed three-judge opinion in Casey might "have the effect of removing abortion from the political agenda just long enough to ensure the re-election of Pres. Bush and the appointment of another nominee from whom the Far Right will be sure to exact a promise to overrule Roe."  In light of all this, when one reads that the Blackmun clerks drafted a "dissent to relisting," erroneously anticipating that the Court would delay hearing the Casey case, and that this draft intoned that "this Court stands less tall when it defers decsision for political reasons" [or, in a  further quote from the Garrow article, that "[w]e should conduct our business above the fray of politics"], one must exercise the sovereign prerogative of laughter.

This last set of materials also suggests that, even if Justices do take politics into account, they would be foolish to credit either their own political judgments or those of their clerks.  The 1992 election did not turn on abortion, of course, and I find it unlikely that any would, although it might influence turnout numbers.  Perhaps a slim margin of well-educated women bearing a substantial resemblance to Justice Blackmun's clerks would "vote their outrage" on this issue, although more likely at the Senate level.  But that's not much of an electoral lever.  In all of this, I detect again the tendency of lawyers and law clerks to overestimate the importance of their role, and the role of law, in the national political sphere.

A fifth related point one can take from the book is that Justices -- or at least this one -- tend to fare poorly at predicting the effects of their rulings.  Blackmun assumed that the dust would settle on an abortion decision, and the Court would return to a subsidiary role, following the next session of the state legislatures.  Greenhouse rightly calls this assumption "almost poignant in [its] naive optimism."  Just as the Justices or their clerks ought not take their political prognostications too seriously, so they ought to be humble about their powers of prediction as to the empirical effects of their rulings.  Similarly, commentators who line up shortly after rulings to praise the Solomonic way in which this or that opinion balances the social interests involved, or to decry its disastrous consequences, are generally about ten years, a ream of social science evidence, and one Ph.D. too early to make any such judgment.

Finally, and by way of returning from broader observations to the book itself, I think that Greenhouse's title thesis -- that Harry Blackmun "became" Justice Blackmun as a result of Roe and the reactions to that case -- is either unproved or unfortunate.  In its narrow focus on a few issues and on a limited (although voluminous) set of materials, the book does not completely succeed in describing a "Justice Blackmun," with a coherent set of views, let alone in demonstrating that this character emerged exclusively or even primarily from Roe and its discontents.  Greenhouse may be right, but I don't think her book proves her thesis (which is fine, because the thesis itself is, I suspect, merely connective tissue for a look at some very interesting papers).  If she is right, however, then that's unfortunate for Blackmun, because on this scant evidence it would mean he saw the rest of his judicial career as an effort to defend and justify Roe, through a steadily shifting set of justifications and permutations, and saw too many other cases primarily through the abortion lens.  But I think the problem here lies more with the scant nature of the evidence than with the Justice himself. 

Still, if this is not a must-read, it's a fine effort and should encourage further toiling in the vineyards of the Blackmun papers.                                     

Review of Freakonomics, Part Three: In which I conclude my review and tell Dr. Steve what he should do next

To conclude: the book is interesting and fun, but not as fantastically groundbreaking as you've been told.  Although I don't imagine he is reading, I do have some advice to Dr. Steve about what he, "The most brilliant young economist in America," should do next: catch terrorists.

According to Dr. Steve (see the page immediately preceding chapter one), "[G]iven the right data, I have little doubt that I could figure out . . . [how] to put together a set of tools that let us catch terrorists."

Steve, this book is interesting and worthy. But please, if you really want to do something groundbreaking, take up your own challenge.

Review of Freakonomics, Part One: In which my review of the book begins and I explain the downside of blogging anonymously

(Note: If you don't get the reference of the title of this post, then you haven't read the Table of Contents to Freakonomics.)

There are downsides to posting anonymously, chief among them the fact that, well, people don't know who you are. One problem with this is that you don't get credit for what you write, although I suppose there is the concurrent upside that you don't get the grief either.

Another problem with being unknown, and one that doesn't have a corresponding benefit, is that people don't send you free stuff.

Apparently, everyone in the blogosphere has received a free copy of Freakonomics, by Steven Levitt and Stephen Dubner (Steve and Stephe, I guess), for the purposes of generating reviews and buzz. Well, being anonymous, I didn't get one, so I had to shell out cash for it, which I did, thanks to the buzz generated by the blogosphere and the internet generally.

As a sidenote to everyone reading: although I post anonymously, I am a real person, and not (and this may come as a surprise given my work product) a group of monkeys at a keyboard. I am happy to get free stuff, including books, free subscriptions to magazines (ahem, Legal Affairs), or whatever else you will give away. Drop a note in the comments section and we'll work it out from there. And if you are willing to provide me with a free Subaru Outback XT, I am willing to guarantee you a good review and as much positive buzz as I can generate. I do a mean impression of an auto-writer.

(Review with actual insight begins after the jump.)

Anyway, Freakonomics. I've skimmed all of it and read about half, and so I am now prepared to pass judgment.

Here's the deal: Steve and Stephe have done a nice job. Steve is the econobrains, which doesn't actually make Stephe the freakobrains, but rather the brains behind the style. The substantive element is creative and interesting, and the book is very easy and enjoyable to read.

The title is a bad fit, since there is nothing freaky about the book or its goals or methods. But don't let that put you off. Steve and Stephe ask interesting questions about how the world works and, for the most part, provide compelling (and always provocative) answers.

One other benefit of reading this book, at least if you do so publicly: people will think you are smart. I had to drive with a group of coworkers this morning for a meeting in another town. We left at 6:30 A.M. I brought the book and read it along the way. Three people told me they were impressed (but a little weirded out) by the fact that I was doing "such heavy reading" so early in the morning. First of all, I have two young children. 6:30 A.M. isn't that early in the morning. Second (and more relevant), the book isn't that heavy a read. It is quite an easy one, in fact. So by reading it, you get to look smart and studious without actually having to be smart and studious. Just my kind of deal.

The book is definitely readworthy. But it is not quite as buzzworthy and groundbreaking as Steve, Stephe, and the marketing team believe. This is hardly the first book to apply methodologies used by economists to explain everyday phenomena. Put aside that this is what microeconomists do all the time in the academic world and just consider these examples of books with similar descriptions.

So read the book, particularly if you are given it for free, but even if you have to borrow it, buy it, or steal it--hey, even teachers cheat (see chapter one). But don't buy the hype.

Life on the Tenure Track: Lessons from the First Year

Amazon has finally sent me James M. Lang's Life on the Tenure Track.  Although his experience in his first year teaching literature at a Catholic liberal arts college differs in many important ways from life as a first year teacher in a law school, there are some universals with which he wrestles: academic politics; teaching that first class; balancing teaching and publishing; etc.  Lang is an engaging writer, of The Chronicle fame, and I highly recommend this fun book. 

Philosophy is garbage, but the history of garbage, that's scholarship!

This famous dictum by Burt Dreben came to mind this past weekend while I was finishing David Laskin's interesting (but/and/yet??) gossipy book: Partisans: Marriage, Politics and Betrayal among the New York Intellectuals.   Laskin's book came out a few years ago and is on the nextbook.org suggested reading list, which is how I discovered it.  Through the female lens of wives and lovers, it examines the egos and events surrounding "the boys" who ran Partisan Review from the 30's through the 60's.  Thus we are overwhelmed by the endless cycle of affairs and marriages in which Mary McCarthy, Jean Stafford, and Lizzie Hardwick play prominent roles, and there are some extended cameos by Diana Trilling and Hannah Arendt (nicknamed Hannah Arrogance by some).  The men in this book scarcely come out better: Phillip Rahv is a brutish and libidinous autodidact, Robert Lowell is an insane and hysterical poet, Edmund Wilson, well--everyone knows about him already.

A few interesting points.  Prior to the 1960's, the New Yorker magazine was regarded as very much a trifle among intellectuals, a host to exploit only for its comparatively generous lucre.  The New York Review of Books came to life while the New York Times endured a labor strike, at a time when its Book Review was thought to be even weaker than the one that afflicted readers and writers until the recent change of editorship. 

And Isaiah Berlin, whose assessment of H.L.A. Hart was, shall we say, misplaced, observed that Hannah Arendt was the most overrated writer of the twentieth century.  I've only read a few of Arendt's books, but the old fox may be right about that one.  Arendt, you may recall, not only caused a great kerfuffle when she argued (in Eichmann in Jerusalem) that the numbers of the Holocaust were greatly increased on account of the conduct of local Jewish councils in Europe, but she also posited that the government was mistaken in trying to dismantle segregation in the schools of Little Rock, claiming this was an improper conflation of the political and the social. 

Anyway, Laskin's book is useful if you know little of that period of intellectual history or if you're interested in the gender angle on an interesting slice of intellectual history generally.  Curiously, and perhaps tellingly, he notes that virtually all of the female figures in his book were basically hostile to the feminism of Betty Friedan and those who followed her; their sense, he reports, is that they were able to be successful writers and wives/domestic goddesses, and so, they harumphed, why can't the others be too? 

Of course the men felt no such obligation, according to Laskin; they are luftmenschen, and like Aristophanes' mockery of Socrates, they are farting up in the clouds.

 

Rob Howse Reviews Francine Prose's A Changed Man

Restorative Justice Lite:  A Review of Francine Prose, A Changed Man

By Rob Howse

Vincent, the hero of Francine Prose’s new novel, decides one day that he’s had it with being a neo-Nazi.  How to make amends and reintegrate into society?  There don’t appear to be any recovery programs for members of extreme right-wing organizations, so Vincent throws himself on the mercy of Meyer Maslow, Holocaust survivor and revered leader of a major human rights NGO.  Maslow gives Vincent a job and insists that the NGO’s fundraiser provide Vincent with shelter at her home (he claims to be in danger from members of his former cell none to happy about his defection).  Maslow uses Vincent as an example, to prove a point, not just about people being able to change for the better, but also about the need to reach out to those who seem to be beyond the pale. Maslow believes that human rights advocates need not only to find a way of helping victims, but to reach perpetrators, or potential perpetrators, as well.

            There are doubts from the beginning about Vincent’s motives for leaving the neo-Nazis; when he decamped, he stole drugs and money from Raymond, his uncle, who was responsible for getting Vincent involved in the right wing cell in the first place.  Vincent is neither forthcoming nor particularly consistent on the occasions where he’s required to give an explanation of his change of heart.  Could it all be a publicity stunt, or a way of getting out of what is a dead end from the strictly self-interested point of view?

            These are the kind of doubts that fuel skepticism about the possibility of restorative justice—has any perpetrator really made amends and changed their ways, except on account of carrots or sticks?  What really matters, Prose seems to suggest, is that Vincent has changed in his actions and attitudes:  we see him gain in self-respect and at the same time treat others more respectfully.  He doesn’t become pure or perfect, but when he does something wrong—like stealing a joint of marijuana from the son of the woman who has given him shelter on Maslow’s orders—he now accepts responsibility for his actions, rather than blaming them on a scapegoat (Jews, gays, African-Americans, etc.)

            As Maslow explains in a speech at a fundraising dinner where Vincent is featured, the idea of human rights doesn’t make sense unless we make a leap of faith—a gamble on human goodness.  But it is a real gamble:  “even we sometimes wonder if such change can really occur.”  Maslow’s well-healed society audience applauds wildly his endorsement of hope in human goodness; but they somehow don’t hear the disclaimer that this hope is accompanied by the shadow of doubt and the sense of a moral wager.

               There is a persistent theme of gender politics in A Changed Man, which Prose weaves into the story about Vincent’s transformation.  Vincent is sexually attractive, strongly so to Bonnie Kalen, the NGO fundraiser who provides him with shelter.  Bonnie is a divorcee raising two sons.  She is not alone in finding Vincent sexy; other women in the novel expect that Bonnie is sleeping with Vincent (she isn’t; he refuses her advances at one point) and envy her for it.  At first, when the theme of Vincent’s sexiness was introduced, I thought Prose was going to be exploring the relation between fascism and eroticism, a rather dangerous and difficult theme.  But the source of the spark between Bonne and Vincent turns out to be rather different.  Vincent, like many others, joined the neo-Nazis from a sense of disempowerment:  his father shoots himself due to tax troubles; later on, as a result of the anger that this episode almost hardwired into him, Vincent bursts out (he throws a difficult customer in the swimming pool he is servicing for her) and loses his job and wife.   Bonnie and the other women in A Changed Man experience a similar cycle of anger and disempowerment in their own lives, in relation to men.  Their husbands or ex-husbands or employers (Maslow) are high-performers taken seriously in the real world; in the presence of such men women like Bonnie feel a combination of inferiority on the one hand and resentment on the other.  In the case of Bonnie’s relationship to Maslow, the resentment is at least blunted by a sense of Maslow’s genuine idealism and the obstacles he has overcome in his own life.   But one gets the sense that Bonnie connects to Vincent because he’s been there, felt what it is like to think you are nothing in a world where others appear to have all the power.  In refusing Bonnie’s advances, Vincent may have an inkling of just this—now that things have changed for him, he doesn’t want to join Bonnie in (self-)disempowerment. 

            The novel’s ending begins with a parody of the public confrontation between victim and perpetrator that occurs in truth commissions:  on a popular TV talk show, Maslow and Vincent are both to appear, the Holocaust survivor and the ex-neo-Nazi.  The show’s host will encourage them each to show their tattoos, Vincent’s SS tattoos, and Maslow’s

Auschwitz

branding, an indignity that Maslow opposes.  Seeking revenge for his stolen drugs and money and Vincent’s defection, Raymond, who has managed to get in among the live audience of the show, attacks Maslow; Vincent overpowers Raymond, and then beats him up, though without causing grave injury. 

            After this, Vincent disappears.  But he soon shows up again, to make a planned appearance at an event at Bonnie’s sons’ school, where he is supposed to be the center of attention.   Does Vincent’s return signify that he is now responsible, and willing and able to face the music for the incident on the show (partly self-defense, but partly gratuitous use of force)?  Or does it mean that he is now ready to start a relationship with Bonnie, to accept an alliance in ordinary disempowerment?  To me at least, the answers to these questions are less than clear.  But throughout the novel Prose is honest about the complexities, avoids moral simplifications, and rightly gives us a sense that we are in a realm where those who always want clear answers will necessarily end up either as useless cynics or useless dreamers.  She can be faulted, I believe, for only one distortion: there are no powerful, self-confident, non-neurotic women in A Changed Man (there’s a young journalist who is confident enough but that comes from her sense of her—real—sex appeal).  If Prose were a male author, she could—and probably would—be charged with misogyny.   

                                          

Robert Howse’s first novel, Mozart, is available at Amazon.Com and Barnes and Noble online.

Rob Howse on Ian McEwan's Saturday

DM: Rob's informed me that the review of Ian McEwan's Saturday that we ran the other day was somewhat incomplete, so we're republishing it here in full.

A Day in the Life of Mr. Perfect: A Review of Ian McEwan’s Saturday By Robert Howse The protagonist in Ian McEwan’s new novel Saturday has too much going for him to be a plausible hero of contemporary fiction: Henry Perowne is a neurosurgeon of impeccable reputation and high stature; a loving, faithful and sexually adept husband; a model father of two kids who are turning into creative, functional adults; reasonably fit and healthy for early middle-age. That McEwan can hold our interest in this man through a several-hundred page account of his thoughts and actions in a single day says much for his skills as a writer. He has an impeccable eye and ear for the rituals, vocabularies, illusions and insecurities of the educated professional classes in our time. Saturday is set in the winter of 2003 -- the lead up to the Iraq war, and McEwan captures beautifully the feeling of that very particular historical moment.

What makes Mr. Perfect at least barely believable and humanly interesting as a character (and not merely a device for McEwan’s own astute social observation), are the lingering self-doubt and even weak shame that shadow his accomplishments and virtues.  Reflecting on the abstemiousness of his young adult daughter, instead of simple pride and self-congratulation at raising a kid without a substance abuse problem, we have Henry putting in question his own (very moderate) drinking; when he considers how natural it comes to him to be faithful to his wife, he ends up wondering whether there is something lacking in his masculinity.  There is a nobility to Perowne’s combination of high mindedness and self-questioning unaccompanied by decisive transformative action, a nobility that reminded me of Turgenev’s Russian liberals, sometimes too gently noble and self-conscious for their own good, bourgeois intellectual Hamlets.

But Perowne isn’t really an intellectual, and in the sole drama of the novel that puts his decisiveness to the test, he does okay. Henry, rushing to get to his regular squash game on a morning when many side streets in London have been closed off due to anti-war demonstrations, ends up in a minor accident, and a not-so-minor run-in with some thugs.  The main thug Baxter, however, turns out to have a debilitating neurological disorder, which Perowne is able to diagnose on the spot and exploit to undermine Baxter’s status with his henchmen, diffusing the confrontation. 

Later that day Baxter, recouping his losses, comes around to Perowne’s home during a family get-together and terrorizes them, holding the wife at knifepoint and forcing the daughter to strip naked.  But Baxter is once again undone by the superior knowledge of the educated classes; he is first of all charmed by what he presumes to be one of the daughter’s poems, which she reads to him, and then is lured away by Perowne’s false suggestion that in his study he has information that could cure Baxter of his disorder, providing an opportunity for Perowne and his son to physically overpower and disable the thug.

The final twist is emblematic of both the strengths and weaknesses of this novel, its inventiveness but also its over-vindication of the middle-aged professional male:  before his Saturday ends, Henry performs brain surgery on Baxter to deal with the consequences of the scuffle in the Perowne home (Baxter ends up getting thrown down the stairs).  Despite having had multiple glasses of wine on an empty stomach, then living through his family being held at knifepoint by a deranged thug, not only does Perowne pull off a flawless performance in the OR, but on a patient who is none other than that very thug.   McEwan gives the grown-ups their own Harry Potter.          
         
Robert Howse’s first novel, Mozart, is available at Amazon.Com and Barnes and Noble online.            

50 Book Challenge

Bookslut recommends that we undertake the 50 Book Challenge.  I've got to be way behind in this, having just started to blog, but let me share some of the reading from the past six weeks, and hopefully I'll catch up with the whiz-kids there at Crescat.  As I like to joke with my Osita, perhaps between the two of us, we can do the reading of one average person.  (Thanks Milbarge!)

So: currently reading Freakonomics (along with everyone else in the blog world that received free advance copies) by Dubner and Levitt; Warren Bass' Support Any Friend (about Kennedy and the making of the modern US-Israel alliance); and de Bellaigue's memoir of Iran, In the Garden of the Martyrs.  Dipping inside Donin's To Be a Jew and Diamont's book on freilichen weddings.

Recently finished:

Lipstadt's History on Trial (review here).  Interestingly, my review is already up on David Irving's Holocaust-denying website too.

Bradley's Harvard Rules and Douthat's Privilege (review forthcoming)

Mark Oppenheimer's Thirteen and a Day (about bar mitzvahs in America) (review forthcoming)

Hakakian, Journey from the Land of No (another memoir of Iran, review forthcoming)

I'm in arrears on reviews--too much blogging?  Actually, I think the more you blog the easier it is to write other stuff too.

Btw, I highly recommend James Wolcott's incisive, if somewhat painful, review of James Atlas' rendition of the travails of middle age.