Thursday, December 29, 2005

No, I Don't Like to Think

It turns out that psychologists think we'll all have healthier relationships if we would just stop thinking about them so much.  Of course, there is a surface plausibility to this idea: if we take the pulse of our relationships minute-to-minute, we will lose the proverbial forest for the trees. 

I tell my students a similar thing about my courses.  Don't try to assess if your learning day-by-day.  If you take the long view, you are likely to see that you are in fact absorbing much more than you think.  Not a perfect analogy, but still.

The problem with the prescription the psychologists recommend is that it can't be a thinking person's solution.  One doesn't will the analytic mind exactly.  And just how are we to distinguish that elusive "happiness" brought about by simply cutting off the neurotic parts of our brain from false consciousness?  Mightn't we end up in "happy" relationships that are actually fundamentally bad for us.  A central problem that can't be resolved by a New York Times op-ed, of course.  And irrelevant to the law.  But aren't most of us on break?

Posted by Ethan Leib on December 29, 2005 at 11:07 AM in Article Spotlight | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 28, 2005

Remember Endo, the Redux

Two years ago, my friend and UM colleague, Patrick Gudridge, published a fascinating essay in the Harvard Law Review titled "Remember Endo," all about the forgotten companion case to Korematsu, Ex parte Endo, in which the Supreme Court granted a habeas petition filed by a Japanese-American internee on the ground that the government (through the War Relocation Authority) lacked the authority to hold her. [I couldn't find a free version; the cite to the Essay is 116 Harv. L. Rev. 1933 (2003).]

Pat's essay focused on the relationship between Endo and Korematsu, but there was a second holding in Endo as well -- that, so long as the district court has jurisdiction over the custodian at the time the habeas petition is filed, subsequent transfer of the petitioner outside the territorial jurisdiction of that court has no bearing on the federal courts' jurisdiction over the petition.

It is this holding that I'm reminded of today in reading SCOTUSBlog's summary of the government's latest filing in Padilla -- an unusual letter signed only by the Solicitor General, and asking the Court (presumably through Chief Justice Roberts as Circuit Justice for the Fourth Circuit) to grant the government's application to transfer Padilla to Miami. Here's the letter itself:

Download padilla_s. Ct. Application to Transfer.pdf

Anyway, what's bugging me is as follows: Given Endo, why does this matter??  Endo, on my reading, squarely rejects the argument that the transfer of a petitioner can, of itself, moot a habeas petition. But if that's true, then the real issue is whether the indictment itself moots the habeas petition, and not Padilla's actual physical location.

If that's true, though, then why is the government so concerned with Padilla's physical location? Why not wait for the Supreme Court's decision to either grant or deny certiorari, which should come sometime in the next three weeks?

Why, that is, unless we've once again failed to listen to Pat...

Posted by Steve Vladeck on December 28, 2005 at 02:04 PM in Current Affairs, Steve Vladeck | Permalink | Comments (9) | TrackBack (2)

The Weekly Standard on Snoopgate

Is its position that the President should have the authority to bypass FISA or that he does have the authority to bypass FISA?  That's a world of difference.

Posted by Hillel Levin on December 28, 2005 at 06:25 AM in Hillel Levin | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 27, 2005

All Padilla, All The Time

Over at SCOTUSBlog, Lyle Denniston thoroughly recaps the fascinating Reply Brief filed today by Jose Padilla's lawyers in the Supreme Court. Lyle thoroughly recounts the significant amount of ground that the brief covers, along with the formal introduction of Snoopgate to the Justices. [It really is a worthwhile read.] As Lyle writes:

Ordinarily, a reply brief in a pending Supreme Court case is little more than a move to claim the final say on the issues at stake, perhaps cleaning up some loose ends of argument. But so much has happened in the 11 days since the government urged the Court to deny review of Padilla's case that the atmospherics -- and perhaps the very substance -- of the case may have changed markedly.

Specifically, the two most prominent intervening events are the various Snoopgate revelations and the Fourth Circuit's order last Wednesday denying the government's motion to transfer Padilla and its suggestion that the case is moot.

At the same time comes news from tomorrow's New York Times that defense lawyers in various pending criminal cases -- including United States v. Hassoun, the Miami indictment to which Padilla was added in November -- are trying to ascertain whether any evidence used in these various cases was obtained as a result of the domestic NSA surveillance. Perhaps the link between Padilla and Snoopgate isn't as attenuated as it might otherwise seem?

It's surely a while yet before any Snoopgate issue might directly come before the Court, but I agree wholeheartedly with what I take to be Lyle's point -- that as the Justices discuss whether to grant cert. in Padilla come mid-January, the NSA allegations may reverberate fairly loudly... At the very least, since the government's op. cert. was filed on December 16, it does seem that the likelihood of the Court granting cert. has only increased, perhaps markedly so.

Posted by Steve Vladeck on December 27, 2005 at 08:23 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack (0)

Team of Rivals, Except Bates

Thanks to the solitude of the holiday break, and to my procrastination from grading exams, I've been flying through my "to-read" list. The latest casualty is Doris Kearns Goodwin's much-anticipated 944-page addition to the mountain of literature on Abraham Lincoln's political life, Team of Rivals: The Political Genius of Abraham Lincoln.

Like most who have reviewed the book, I found it wonderfully entertaining and elegantly narrated. But I couldn't help thinking, as I read it, that a big, currently-relevant chunk was missing.

Continue reading "Team of Rivals, Except Bates"

Posted by Steve Vladeck on December 27, 2005 at 03:25 PM in Books, Steve Vladeck | Permalink | Comments (2) | TrackBack (0)

Ah, so that's why it matters

Last week I asked why (putting aside the substantial problem with the President breaking the law) the secret wiretapping matters if the FISA court is a rubber stamp.

It turns out that the FISA court wasn't just a rubber stamp. 

Carry on about your business.

UPDATE:  The link should work now.  Thanks to Pooh for the tip on the broken link.

Posted by Hillel Levin on December 27, 2005 at 01:14 PM in Hillel Levin | Permalink | Comments (3) | TrackBack (0)

Sucker "Fathers"

In Findlaw today, Joanna Grossman tries to defend a Florida court that is forcing an ex-husband to pay child support for a child conceived by his wife's extra-marital affair.  Here are the facts of the Parker case:

Richard and Margaret Parker married in 1996, and Margaret bore a child in 1998. When the couple divorced in 2001, the court awarded custody of the child to Margaret and ordered Richard to pay $1200 per month in child support.

When Margaret sued two years later for unpaid child support, Richard subjected the child to DNA testing and discovered that he was not the child's biological father. He thus filed an independent suit to disprove paternity, and to seek damages for what he claimed was his ex-wife's false representation that he was the child's father.

In that suit, he alleged that Margaret had known all along he was not the child's father and had purposefully concealed that fact from him. He asked a Florida court to force her to pay him damages to compensate for his past and future child support obligations.

The trial court dismissed Richard's petition, and, this month, as noted above, a Florida appellate court affirmed. As a result, Richard remains the child's legal father, with an obligation of support - and will not receive damages from Margaret for the value of his past and future child support payments.

Here's a quick taste of the reasoning:

The approach in Parker is consistent with the modern trend. That trend gives the father some time to disestablish paternity -- influenced by technology's greater ability to prove parentage. Yet, without disproof of paternity presented within the legally-set time period, the modern trend remains faithful to the traditional interests in presuming marital fidelity, protecting the relationship (both emotional and financial) between parents and the children they have treated as their own, and honoring the finality of judgments.

Here's Professor Grossman's conclusion:

While it is easy to see Richard's side of the story here, let's not forget another party's side: As the Parker court noted, disestablishment of paternity might satisfy Richard, but would likely also trigger "the psychological devastation that the child will undoubtedly experience from losing the only father he or she has ever known."

I'm underwhelmed.  Maybe I'm not nuanced enough in my thinking but I think we owe it to Richard to allow him to stop supporting some other guy's child, a product of his former wife's infidelity.  Unless he knew the child wasn't his and agreeed to support it anyway, I have little sympathy for the former wife and her child; I take it she knows the real father -- and can get support payments from him.

Posted by Ethan Leib on December 27, 2005 at 11:31 AM in Article Spotlight | Permalink | Comments (7) | TrackBack (0)

Monday, December 26, 2005

"Munich" Assessed in the NYT

Online critiques of the political bias of the "MSM" are prevalent -- far too prevalent -- in the blogosphere, as everyone knows, and the New York Times is usually at the top of that list.  I tend to think these criticisms are both a little ridiculous, given the utter dependence of most blogs on reporting by the mainstream media, and especially reporting in the Times; that they tend to simple aggressive reporting for actual bias; and that, even where bias is evident, they tend to mistake for pure ideological bias what is more often something akin to class prejudice.  But my biggest complaint has always been that critics of media bias in the Times focus on the news pages, which are far less biased and subject to many more constraints, and not on the arts pages (including the Book Review), which regularly are the site of unapologetic and opportunistic political bias.  (Is there really any excuse any more for giving Michiko Kakutani books to review that have anything to do with politics?  Or, for that matter, anything else?)

So it is with pleasure and humility that I strongly recommend today's column by arts columnist Edward Rothstein, whose critique of "Munich" -- which I freely confess I have not seen -- rings far truer and sharper than anything else I have read about that film.  (Yes, including the column by Leon Wieseltier, who I suspect is quite familiar to readers and writers of this blog and who misses at least as often as he hits.)  I hope my friends at The Right Coast, for many of whom the Times can do not right, get a look at it.    

Posted by Paul Horwitz on December 26, 2005 at 01:00 PM in Culture | Permalink | Comments (1) | TrackBack (0)

Immigration Woes

Today's NYT features an article by Adam Liptak entitled "Courts Criticize Judges' Handling of Asylum Cases."  This article follows up on a topic covered in a post by Steve Vladeck, and looks at incidents of egregious immigration judge behavior that warranted sharp rebuke in the 3d and 9th Circuits as well.  Here's some of the key language.

Mary M. Schroeder, the chief judge of the Ninth Circuit, which hears almost half of all immigration appeals, said the current system was "woefully inadequate."  Immigration judges, she said, "are very unevenly qualified, and they work under very bad conditions." ...

In another decision, Judge Marsha S. Berzon of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said a decision by Nathan W. Gordon, an immigration judge, was "literally incomprehensible," "incoherent" and "indecipherable." A crucial sentence in Judge Gordon's decision, she said, "defies parsing under ordinary rules of English grammar.

Incidentally, Liptak's piece refers to a forthcoming law review article in the Georgetown Immigration Law Journal, but the NYT mysteriously left out the name of the article's author.   The best part of the article is the ending, which quotes Judge Rovner's reaction to a DOJ lawyer who argued before her in the 7th Circuit:

"It is so cruel to send a lovely human being like you in here to be a messenger of such madness, such nonsense," Judge Rovner said.

Posted by Dan Markel on December 26, 2005 at 08:17 AM in Law and Politics | Permalink | Comments (5) | TrackBack (0)

Saturday, December 24, 2005

Constitutional Law: Request for help

As I mentioned a few days ago, I gave my first-year Criminal Law students the option of writing (in addition to the final examination) a "critical review" of Jeffrie Murphy's "Getting Even:  Forgiveness and Its Limits."  (For those students who exercised this option, the critical review was "worth" about 1/3 of their final grade).

This worked pretty well, and I'm mulling over doing the same thing in Constitutional Law this Spring.  At Notre Dame, at present, our required first-year course focuses on "structure," not "rights."  So, I'm looking for a relatively accessible, non-polemical, provocative-but-reasonable, and succinct monograph that could play the same role in Con Law that Murphy's book did in Crim Law:  Provide the basis for critical and engaged reflection on one or more primary themes or questions that run through the course. 

One idea I had was David Shapiro's "Federalism:  A Dialogue."  I also thought of Akhil Amar's recent "Biography" of the Constitution, but am inclined to think that, given the attention given to the Bill of Rights and Reconstruction Amendments, it might not work.  Justice Scalia's "A Matter of Interpretation" -- with, of course, the essays in response -- perhaps?  Judge Noonan's "Narrowing the Nation's Power"?  The latest from Professors Sunstein and Tushnet, and Justice Breyer might be too current?  Is Robert Nagel's "Implosion of American Federalism" a bit too bracing?  Suggestions, please!

Posted by Rick Garnett on December 24, 2005 at 07:23 AM in Constitutional thoughts | Permalink | Comments (7) | TrackBack (0)

Friday, December 23, 2005

Suing the Pope

Some time ago, Christine Hurt pointed out a lawsuit against Cardinal Ratzinger/Pope Benedict in Texas, accusing him of complicity in covering up some of the sex abuse scandals. District Court Judge Lee Rosenthal has now ruled that Pope Benedict enjoys immunity as a foreign head of state from lawsuits, even if they are against him in his personal capacity for activities committed before he was a head of state.

I confess that I find this result a little bit puzzling. If our own head of state can be hauled into court for personal lawsuits, why should foreign princes and potentates enjoy greater protection? I have not yet been able to find a copy of the opinion online, so am I missing something obvious?

Posted by Will Baude on December 23, 2005 at 01:55 PM in Religion | Permalink | Comments (9) | TrackBack (1)

Who Cares if You're Not an Enemy Combatant?

The increasingly famous Judge Robertson (who resigned from the FISA Court this week in protest) issued a fascinating opinion yesterday in a case in which (1) Combatant Status Review Tribunals (CSRTs) at Guantanamo had determined that two Chinese nationals (Muslim Uighurs) are not "enemy combatants"; but (2) the government had declined to release them anyway, arguing that even non-enemy combatants can be held until the end of hostilities. [Hat Tip: Obsidian Wings].

Makes you wonder what the point of the CSRTs is...

What's even more interesting about Robertson's opinion is that he ultimately concludes that he has no power to order the petitioners' release, for reasons I find difficult to dispute, given the current state of immigration law.  Talk about legal limbo.  It reminds me of the famous quote at the end of Chief Justice Taney's opinion in Ex parte Merryman, the case in which he rejected, in chambers, President Lincoln's unilateral suspension of habeas corpus:

I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the president of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

Here's hoping someone's listening.

Posted by Steve Vladeck on December 23, 2005 at 07:49 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack (0)

Racial Repercussions of Transit Strike

Poll results from local cable channel NY1:

Percentage who agree that union was more to blame for the strike:

  • 35% of white respondents
  • 12% of African-American respondents
  • 17% of Latino respondents

Percentage who agree that the union's demands were fair:

  • 38% of white respondents
  • 75% of African-American respondents
  • 75% of Latino respondents

See also this article from the N.Y. Times.

Posted by Matt Bodie on December 23, 2005 at 07:43 AM in Corporate, Current Affairs | Permalink | Comments (2) | TrackBack (0)

AALS Planning and Stuff

Congrats to Steve Vladeck, whose post made it onto the's site at Dan Froomkin's increasingly talked-about column. (Tinkers to Evers to Chance?) 

Related to DC: Prawfs is planning another get-together for friends devoted readers of this and other blawgs in the hood.  Please rsvp to me if you're interested.  Right now we're thinking Wednesday of AALS week at 930pm in Dupont Circle (confirmation on location pending--I'll have another announcement soon).  If people know of other off-program AALS events that week in DC, please leave them in the comments. 

Thanks to Trevor Morrison for his posts the last couple weeks.  See you again soon, I hope.

Finally, I recently received an announcement about an amazing event that might interest readers:  Justice Breyer and Leon Wieseltier will be meeting to chat about religion and law in DC on January 15th at my old shul, Kesher Israel. Details below the fold.

Continue reading "AALS Planning and Stuff"

Posted by Dan Markel on December 23, 2005 at 03:34 AM in Blogging | Permalink | Comments (0) | TrackBack (1)

Thursday, December 22, 2005

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.

Posted by Will Baude on December 22, 2005 at 07:48 PM in Books | Permalink | Comments (0) | TrackBack (0)

Labor Law by Contempt

The New York City transit workers strike is now over.  Local 100's board voted 38 to 5 (with two abstentions) to end the strike while continuing with state-sponsored mediation.  The mediators created a framework for further negotiations which both sides have accepted.  Although an agreement is not imminent, both sides have made concessions to return to the table.  More details here and here.

In an earlier post I talked about the ramifications of the strike, and I suggested that the Taylor Law penalities might not be sufficient for New Yorkers enraged with the strike's consequences.  While the law's stated penalties are stiff -- employees are fined two days' pay for each day on strike -- they are not so draconian that they would deter workers from striking.  However, by making the strike illegal, the Taylor Law sets up the possibility of an injunction with contempt penalities for violating the injunction.  And that's exactly what happened here.  Before the strike, the transit authority secured an injunction against the strike.  And once the strike began, Justice Theodore T. Jones of the New York State Supreme Court imposed a $1 million a day penalty on the union for contempt.  The justice had ordered a hearing for this past morning in which the union leaders faced jail time for criminal contempt.  (The New York Post had their say about the hearing here.)

The labor injuction has a storied and infamous history in the development of American workplace regulation.  Frankfurter and Greene's famous book was part of a broader movement against the use of  injunctions in labor disputes -- a movement that culminated (as to federal injunctions) in the Norris-LaGuardia Act.  Injunctions are notoriously flexible, with their penalities depending entirely on the individual judge.  Contempt can lead to massive fines and jail time for a union and its leaders.  In 1999 a federal judge enjoined a sickout by American Airline pilots and levied $45.5 million in damages against their union.

As I noted in the previous post, strikes have lost their effectiveness for most groups of workers.  Globalization, decreased unionization, and permanent replacements have weakened the market power of the strike.  Transportation workers were among the rare groups who could strike with significant consequences.  But if judges levy severe penalities against illegal strikes by these groups, they too will lose this economic leverage.  Perhaps, in cases like this one, the power of the strike is too strong.  But going on strike was once the most effective tool in the union arsenal.  Chalk up this strike and its aftermath as yet another example of the declining fortunes of labor.

Posted by Matt Bodie on December 22, 2005 at 03:28 PM in Corporate | Permalink | Comments (3) | TrackBack (1)

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).

Continue reading "The Constitution in Congress -- Volume IV"

Posted by Steve Vladeck on December 22, 2005 at 11:51 AM in Books, Constitutional thoughts, Steve Vladeck | Permalink | Comments (0) | TrackBack (0)

The Dover case

As everyone now knows, Judge John E. Jones III has invalidated, on Establishment Clause grounds, the Dover Area School District’s Intelligent Design policy.  (Here, thanks to Howard Bashman, is the opinion.)

I suppose I should be, but I really am not, particularly interested in Judge Jones’s identification and application-to-the-facts of the governing doctrinal standards.  (That said, I cannot resist:  It seems strange to me that courts treat separately – i.e., as two distinct Establishment Clause “tests” – the questions (i) whether state action is inconsistent with Lemon’s “purpose” and “effects” components and (ii) whether state action is inconsistent with Justice O’Connor’s no-endorsement rule.  It seems to me that it would be more straightforward simply to regard a purpose-to-endorse as an invalid purpose, and an effect-of-endorsement as an invalid effect, under Lemon.  Anyway . . ..)

The opinion did raise for me, though, (at least) these two thoughts:  In his conclusion, Judge Jones characterized – indignantly, it is fair to say – as “utterly false” the “assumption” that “evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general.”  He added, “[r]epeatedly in this trial, Plaintiffs’ scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.”

I wonder if Judge Jones is as obviously correct as he seems to believe he is?  The “scientific experts” to which he refers include John Haught, a Georgetown theologian and author of many well regarded books on science and religion, including “God After Darwin:  A Theology of Evolution.”  As Haught discussed a few years ago, in a helpful essay in Commonweal magazine (“The Darwinian Universe:  Isn’t There Room for God?”), many top-tier evolutionary scientists and philosophers – e.g., Daniel Dennett, Frederick Crews, Richard Dawkins -- do insist that “evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general” and that – in Haught’s words – “beneath life, consciousness, and culture there lies only a mindless, meaningless swirl of purely physical stuff.”

Now, I think – and, I admit, I hope – that Judge Jones is right in his characterization as “utterly false” the evolution-necessarily-entails-atheistic-materialism “assumption.”  But is he on solid ground when he (in effect) takes judicial notice of the assumption’s baselessness?

A second thought:  It seemed to me that, running through Judge Jones's analysis, was a view not simply that “science” entails “methodological naturalism” (a view that strikes me as sound), but also that premises that are not (reductively?) materialistic or naturalistic are therefore “religious” and (presumably) inadmissible in the curriculum of a public school.  (I would welcome correction from those who have read the opinion and do not detect this theme.)  If my sense is accurate, does Kitzmiller suggest that the Constitution requires that public schools teach “materialism” and prohibits teaching or endorsing views – for example, the view that the wealthy have a moral obligation to help the poor, or that the powerful are morally constrained in how they treat the weak – that depend, at some point, on non-materialistic premises?

The suggestion here is not that “intelligent design” is “science” or that Judge Jones was wrong to invalidate the program.  My question, instead, is whether it is plausible to think that the moral, ethical, normative, and prescriptive components of public-school education are any more consistent with thoroughgoing materialism than is “intelligent design”?  And this question makes me suspect that we would be better off if our debates about the content of science classes (and history classes, government classes, literature classes) were not framed in terms of what the Constitution permits.

Posted by Rick Garnett on December 22, 2005 at 11:22 AM | Permalink | Comments (6) | TrackBack (0)

Hedge Hogging

Further evidence that the crash is coming.

Posted by Matt Bodie on December 22, 2005 at 08:56 AM in Corporate | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 21, 2005

Inconsistency, Legal Argument, and the War on Terror

Steve notes below Judge Luttig's scathing opinion for the court in response to the government's procedural shenanigans in the Padilla case. After explaining why the government should not be allowed to evade Supreme Court scrutiny by expeditiously deciding that Padilla can be put through the criminal justice system after all, Luttig notes that the government's refusal to come clean with the court and its inconsistent stance on Padilla end up implying that either Padilla has been detained for years on a mistake, or that the pressing importance of being able to detain American citizens is not such a big deal after all. As Luttig puts it:

(T)hese impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

Meanwhile, over at my home blog, I've been joining Marty Lederman in criticizing the administration's alleged interpretation of the Authorization for the Use of Military Force, and in particular suggesting that there is a tension between the administation claims about the breadth of AUMF, and the administration claims that unless we renews the Patriot Act ASAP, Al Qaeda will strike again. (See my posts here and here). The smartest response is from Anthony Rickey, who argues that it is unfair to hold a political speech to the standards of a legal brief.

But it is not as if the government's legal briefs are much more consistent (when it bothers to brief the court at all), which is Judge Luttig's point. One of Anthony's commenters thinks this is nothing to complain about-- lawyers press every argument they've got, that's their job. But of course, it's not exactly the job of government lawyers and the solicitor general's office, and it's really not the job of the President, or whoever makes the ultimate decision about executive branch interpretation of the law and the constitution. If they executive interpretations of the law to be respected as co-equal to the Supreme Court's, they are supposed to be good faith legal decisionmakers. And while I think much, much, of the criticism of the government's legal arguments during the war on terror is overblown, I think recent events make it increasingly less likely that the President takes his constitutional obligations seriously. Others yawn and say that this is life in post-TV politics, but I have hold the President's legal machinery to higher standards. He is not a 2-bit Manhattan lawyer suing Wal-Mart.

If the President thinks, with Justice Thomas, that courts should stay out of the war on terror almost entirely, he should simply stop sending his lawyers to show up in court. We could then argue about the extent of inherent executive power, departmentalism, and so on. But that does not appear to be the President's theory. Indeed, it is not clear that there is any theory here at all. To be sure, it is possible that the administration will eventually reveal that there is method to its madness, but it increasingly looks as though the top of the administration sees the laws of the United States as if they were political hurdles to dodge, not something that the President is Constitutionally obligated to "take care . . . be faithfully executed."

Posted by Will Baude on December 21, 2005 at 02:57 PM in Law and Politics | Permalink | Comments (2) | TrackBack (0)

Hastings' New Dean

Leiter has picked up our press release about our new dean, Nell Newton.  We're all very excited about getting a new, fresh administration.  Leiter's analysis is dead on:

Dean Newton succeeds Mary Kay Kane, a leading authority on civil procedure, who was Dean for 13 years.  During that time, Hastings recruited some leading "doctrinalists" (broadly construed), including Roger Park (evidence) from the University of Minnesota and, most recently, Geoffrey Hazard (legal ethics, civil procedure) from the University of Pennsylvania; the Hastings group in the civil procedure and evidence areas (Kane, Park, Hazard, Marcus, Faigman, among others) is now probably one of the two or three best in the country. 

Like many large, state law schools, Hastings has been treated badly by U.S. News; probably only Wisconsin has fared as badly at the hands of the U.S. News criteria that reward a school for being small and privateU.S. News to the side, I've often heard folks remark that Hastings is an underperforming law school; when you consider that it's part of the prestigious University of California system, and located in one of the three great American cities (the other two being, of course, New York and Chicago), surely it should be unambiguously top 20 or better?  In particular, Hastings has been remarkably indifferent to interdisciplinary legal scholarship, having no substantial presence in law and economics, or law and philosophy, or legal history, or empirical legal studies (though some of their distinguished evidence faculty have done important work related to psychology and the rules of evidence).  The recent recruitment of the leading feminist legal theorist Joan Williams from American University suggests that, perhaps, this will change, though Hastings does face the obstacle of being a free-standing law school, without a university and its departments on which to draw. 

Could Hastings accomplish what NYU did in the 1990s, i.e., exploit its location to recruit a first-rate interdisciplinary faculty?  That must surely be one of the challenges facing Dean Newton as she takes the helm.  As Dean Newton remarked:  "I am excited about the opportunity to lead Hastings as it secures its place as one of the best law schools in the country."  Many in the legal academy will watch with interest.

NYU?  Thanks, Brian, for the vote of confidence.

Posted by Ethan Leib on December 21, 2005 at 01:54 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack (0)

Fourth Circuit Rules Against Government in Padilla

To what must be the government's surprise, the Fourth Circuit has ruled against it on two important points in Padilla, denying the government's motion to transfer Padilla to civilian custody, and rejecting the government's suggestion that its original opinion is now moot.

Three passages from Judge Luttig's opinion, available here, stand out:

[A]s the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.


Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion. If the natural progression of this significant litigation to conclusion is to be pretermitted at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States.

And third:

[W]e would regard the intentional mooting by the government of a case of this import out of concern for Supreme Court consideration not as legitimate justification but as admission of attempted avoidance of review. The government cannot be seen as conducting litigation with the enormous implications of this litigation -- litigation imbued with significant public interest -- in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound.

So, what does all of this actually mean?

Continue reading "Fourth Circuit Rules Against Government in Padilla"

Posted by Steve Vladeck on December 21, 2005 at 12:14 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack (4)

Hot Group Sex Action

Comes the news from Canada that the Supreme Court has issued two interesting opinions dealing with the criminal offense of indecency.  The Court set aside the conviction of a defendant for "keeping a common bawdy-house for the practice of acts of indecency" -- to wit, operating a private club in which members were free to participate in acts of group sex.  The Court, acknowledging the difficulties in doing so, attempts to craft a test for crimes of indecency that is based on "objective" concepts of "harm" rather than one of morality or community standards.  From the headnotes in the principal case, R. v. Labaye:

In order to establish indecent criminal conduct, the Crown must prove beyond a reasonable doubt that two requirements have been met.  The first is that by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti‑social behaviour, or (c) physically or psychologically harming persons involved in the conduct.  The categories of harm capable of satisfying the first branch of the inquiry are not closed.  The second requirement is that the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.  This two‑branch test must be applied objectively and on the basis of evidence.

I've just peeked through the opinions and think they should be interesting to criminal law scholars interested in harm-based theories of criminal law, con law scholars interested in obscenity/pornography law, and legal philosophers.  I find it hard to imagine a genuinely objective description of harm that is truly disaggregated from public morality and that reaches as far as the Court's test would; and I find it hard to reconcile the Court's test here with the outcome in the Court's famous opinion in Butler; but these are just initial impressions.  In any event, you may find these cases interesting. 

(Was my interest in these cases at all based on the knowledge that a post titled "Hot Group Sex Action" is sure to increase our readership numbers?  Nope.  Just good disinterested scholarship here, folks.)

Posted by Paul Horwitz on December 21, 2005 at 11:39 AM in Criminal Law | Permalink | Comments (1) | TrackBack (0)

"The Supreme Court as Anti-Magisterium"

This new paper, "The Supreme Court as Anti-Magisterium," by Steve Smith, looks (as one would expect, given the author) interesting and provocative.  Here is the SSRN abstract:

Scholars have resorted to various comparisons in attempting to understand the role and function of the United States Supreme Court: they have compared the Justices to third-branch legislators, scholars, Platonic guardians, prophets, princes, "robed masters," and aristocrats. This essay proposes a different and hopefully illuminating comparison: the Court can profitably be regarded as an (anti-)magisterium. A "magisterium" - a term usually used in Catholic contexts - is the teaching authority in a hierarchical church. This essay describes the Supreme Court as an "(anti-)magisterium" in two senses. First, the Court is a species of magisterium, except that it is an inverted one - a sort of upside-down magisterium; it is thus a particular if peculiar type of magisterium, much in the way that an anti-hero is a type of hero and anti-matter is a type of matter. Second, the Court casts itself as an institution that is opposed to and that protects citizens against magisteria - against institutions that impose orthodoxies.

This comparison is developed in three sections. The first section discusses the ways in which the United States can be thought of as, in Chesterton's description, "a nation with the soul of a church." The second section discusses the historic Catholic/Protestant division over the necessity of a magisterium in a church - a division growing out of the painful choice between an imposed (and sometimes resented) unity and a more freely-arrived at fragmentation; and it shows how this same division arises in the American political community and provides perhaps the most influential justification for judicial review. The third section examines the famous Joint Opinion in Planned Parenthood v. Casey, showing how the opinion comes down squarely on both sides of the Catholic/Protestant divide: the Casey Joint Opinion both aggressively Catholic and radically Protestant in its presentation of itself, the nation-church, and the constitutional orthodoxy. Casey thus nicely exemplifies the Court's effort to serve as an (anti-)magisterium.

Check it out.

Posted by Rick Garnett on December 21, 2005 at 11:35 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack (0)

"Excessively lenient" sentences and justice

Howard Bashman blogged a few days ago about this case, United States v. Menyweather, in which a panel of the Ninth Circuit affirmed a sentence that involved an "eight-level downward departure for mental and emotional condition, diminished capacity, and extraordinaryfamily circumstances[.]"  Bashman quoted this passage, from Judge Kleinfeld's dissent:

Does drawing a district judge whose sentencing philosophy is idiosyncratic make so idiosyncratic a sentence 'just'?  An excessively lenient sentence like this causes cynicism, not only among people in prison, where the luck-of-the-draw sentencing interferes with rehabilitation, but among the law-abiding public. People have second thoughts about doing the right thing when those who do the wrong thing prosper and avoid punishment. Injustice is corrosive. . . .

I wonder if any Prawfsblawggers or readers -- Dan? -- have had a chance to read and reflect on this sentence.  I'm not so interested in whether or not the district court's sentence should have rejected as "unreasonable", or as an abuse of discretion, by the Court of Appeals.  Instead, I'm curious whether people agree with Judge Kleinfeld that "[a] sentence like the one in this case is just the sort of
red flag that makes legislators wonder whether the courts need mandatory minimum sentences to assure protection of the public."

Posted by Rick Garnett on December 21, 2005 at 11:23 AM in Criminal Law | Permalink | Comments (3) | TrackBack (0)

Ding the King

My osita had a friend who rented out a movie theatre last night for a holiday party so we went to watch the Peter Jackson remake of King Kong.  (This, btw, seems like a good way to host a party for the holidays--no drunks, no misplaced lampshades, and sno-caps for all!) 

I haven't seen the original, but I do have a few unlearned reactions.  First: don't bother. It's horribly long and terribly difficult to suspend disbelief for much of the movie.  Second, Jack Black was miscast.  He's best off playing a funny goof, not a dull though dedicated and deceitful movie producer.  At times, Naomi Watts looks indistinguishable from Nicole Kidman; no real complaints about her performance.  The real stars of the movie are the visual effects:  so King Kong plays in Jurassic Park, all the while performing a few Jackie Chan-like fight scenes with sharp-toothed dinosaurs, under the watchful eye of scary aboriginals.

Most disturbing to me were the lurking cultural semiotics of the film, canvassed in this piece by Joshua Bearman in LA Weekly.  Nice blonde and large hairy beast=primate porn? Althouse has some contrasting reactions. 

Posted by Dan Markel on December 21, 2005 at 11:02 AM in Film | Permalink | Comments (0) | TrackBack (0)

Draft Paper: "Or of the [Blog]"

I have just posted a draft paper titled "'Or of the [Blog]'" on SSRN: a link to the paper, which is still under review by SSRN, is provided here.  The title is, of course, a reference to Justice Stewart's famous address, published in the Hastings Law Journal in 1975, titled "Or of the Press."  This is a rough draft, although I am on a somewhat short deadline, and I would very much welcome comments.  I mean, come on, the thing's about blogs and the law -- surely there might be a couple of interested readers around.  At 30 or so pages, it's short enough to be a nice snack between grading exams.  Here's the abstract:

This paper, a contribution to a symposium on blogs and the law, examines the legal and constitutional status of blogs. Specifically, it offers three ways of looking at the relationship between blogs and the Press Clause -- and, not incidentally, of looking at the Press Clause itself.

First, drawing on recent historical work, I suggest that we might view the Press Clause through either the free press or open press models that historically have applied to that provision. Viewing the Press Clause through the open press model makes a home for blogs in the Press Clause, but dilutes the content of the rights that might be available, for blogs or anyone else, under the Press Clause. Second, I suggest that we might view the Press Clause from a functional perspective, protecting those activities that are at the heart of what we consider to be the social value of journalism. This approach does manage to give some content to the press right, and to extend it to journalists working in the old and new media alike; but it fails to fully capture the qualities that we value in either the established press or the blogosphere.

Finally, I argue that we might view the Press Clause specifically, and the First Amendment generally, in institutional terms, identifying those speech institutions that contribute in unique and important ways to public discourse and granting them considerable autonomy to act according to the norms and practices that define and give value to each First Amendment institution. Under this approach, both the established news media and the blogosphere may find substantial protection under the Press Clause, although the content of the rights available to each institution will be different, based on the distinct nature of each institution. I argue that this approach, although in some ways it may appear to be the most radical of the three visions of the Press Clause I offer, is both normatively attractive and closer to current First Amendment doctrine than one might assume. Ultimately, although my conclusions differ significantly from his, I suggest that there may yet be life in the arguments made by Justice Stewart in his famous article on the Press Clause.

Comments, as I said, are welcome.  Be  the first on your block to make it into the asterisk footnote.

Posted by Paul Horwitz on December 21, 2005 at 09:50 AM in Article Spotlight | Permalink | Comments (0) | TrackBack (0)

The CA for CA

Lest you think all the talk here at PrawfsBlawg about Citizen Assemblies from me, Chris Elmendorf, and Heather Gerken was just pie-in-the-sky reform proposals, take note that the Sacremento Bee is reporting that two California legislators -- a Republican and a Democract -- are proposing legislation to get a Citizens' Assembly convened for electoral reform in California.  Stay tuned.

Posted by Ethan Leib on December 21, 2005 at 09:17 AM in Current Affairs | Permalink | Comments (0) | TrackBack (0)

The "Alito Project" at Yale

Has anyone had a chance to read, and think about, the recently released "Report of the Alito Project of the Yale Law School" (available here; mentioned by the Post here; criticized here and here)?  I have reviewed it -- quickly, and not especially carefully -- and am not sure what to think.  Now, I regard the question whether Judge Alito should be confirmed as a (very) easy one, and I'm inclined to suspect that the contributors to the "Report" are quite convinced (and were convinced, before they produced the report) that he should not.  One quick thing:  First, it struck me as strange that the authors seem to regard it as both noteworthy, and troubling, that Judge Alito "is willing to limit congressional power" and has "imposed limits on congressional authority."  But surely no one disputes that congressional power is limited, right?  So, is the (implicit) objection that (a) Judge Alito (and other judges) should not enforce these limits?  Or, is the precise claim that Judge Alito has "imposed" extra-constitutional limits on congressional power, and not enforced constitutionally imposed ones?

Posted by Rick Garnett on December 21, 2005 at 08:58 AM in Constitutional thoughts | Permalink | Comments (1) | TrackBack (0)

Are you certain about that, Mister President?

Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

—President Bush, at a Q and A in Buffalo, N.Y., April 20, 2004.

Hat tip: Tim Noah at Slate.

Posted by Hillel Levin on December 21, 2005 at 07:06 AM in Hillel Levin | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 20, 2005

The FISA Rubber Stamp(?)

Last night on CNN Jeff Toobin opined that the FISA court is basically a rubber stamp, and not an effective check on executive authority.  He reported that out of more than 19,000 warrant applications in the court's history only 5 have been refused.  He further explained that the FISA court could even grant warrants retroactively.  For these reasons, he expressed some confusion as to why Bush would bother circumventing the FISA court with secret warrantless wiretapping.

It strikes me, though, that this question cuts both ways.  If Bush could have accomplished exactly what he wanted through FISA, then why is there an uproar over the fact that he bypassed it?  Granted, if he broke the law, that's worth getting upset about; but I gather that the concern here isn't over the mere technicalities of the law, but something far more substantive.  So what is it?

Posted by Hillel Levin on December 20, 2005 at 01:13 PM in Hillel Levin | Permalink | Comments (12) | TrackBack (0)

Does Anyone Else Find This Ironic?

The timing for this couldn't be better.

Iraq Searches, American Style

American-style search warrants are coming to Iraq, a victory for locals who don't like random searches but a defeat for some troops who think surprise searches are useful. While still under review, the new policy requiring search warrants is expected to go into force next month. "That is fine," Lt. Col. Alan Kelly tells our Julian E. Barnes in Mosul. Kelly, commander of the 172nd Stryker Brigade's 1-17 infantry battalion, explains that most bad guys operate from roving cars, not houses, anyway. But other officers aren't happy, believing the new policy will lead insurgents to simply shift strategies. "It will be just like the mosques," one tells Barnes. "They will start hiding weapons in their homes."

Posted by Hillel Levin on December 20, 2005 at 10:27 AM in Hillel Levin | Permalink | Comments (0) | TrackBack (0)

Why the Democrats Won't Win on Snoopgate

The questions raised by snoopgate are compelling.  But don't believe for a moment that liberals can use it to their (our) political advantage.  I expect that this will play out politically much as the crime issue did.  Conservatives will be tough and portray liberals as weak.  Eventually, Democrats will figure out that the only way to win is to be tough.

Put differently, "We Won't Snoop On Terrorists" isn't a winning campaign slogan.

Proof that the Democrats can't turn this into a political win: If Orin (and everyone else that I've seen) is right that the President's actions violate the law, then we have a real life impeachable offense here.  Yet I haven't heard a single Democrat mention the word.  All I've seen are weak statements from some Democrats that they didn't sign on to the President's program or that they expressed reservations.

UPDATE:  It turns out I spoke too soon.  In fact, some Democrats have raised the impeachment question.  That notwithstanding, I still maintain that this is a political loser for the Democrats.

Posted by Hillel Levin on December 20, 2005 at 10:07 AM in Hillel Levin | Permalink | Comments (7) | TrackBack (0)

The Inherent Power "Debate"

And so, as Lyle writes over at SCOTUSBlog, the jig is up. We've finally come to the heart of the Bush Adminstration's legal position in the war on terrorism -- that it doesn't even matter whether Congress has authorized the President's actions; he has "inherent" constitutional authority, by virtue of the Commander-in-Chief Clause, to do whatever he deems necessary. I agree wholeheartedly with both Dan's and Hillel's posts about "Snoopgate," but wanted to separately add some thoughts of my own.

Although I've elsewhere written about the extent to which contemporary arguments for inherent domestic presidential emergency powers are not easily reconciled with the original understanding, what's really fascinating here to me is the extent to which the Administration has completely forgotten (or tried to obliterate, through silence) Youngstown. Here's the famous passage from Jackson's concurrence:

    There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. . . .

That military powers of the Commander-in-Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions * * *." Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.

Consider also this quote of Hamilton's (the well-known opponent to presidential power that he was), from The Federalist No. 69:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.

What we've come to then, is a debate about first principles.  Did September 11 really alter fundamental structural imperatives in American constitutional law, to the extent that the President may today resort to inherent powers domestically in a manner that has never been sanctioned otherwise? Even when Congress affirmatively disavows presidential authority, has 9/11 so irrevocably rewritten American jurisprudence that the President remains unchecked, domestically, by the other two branches?

Continue reading "The Inherent Power "Debate""

Posted by Steve Vladeck on December 20, 2005 at 09:40 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (2) | TrackBack (0)

If They Knew This Is What They Were Doing, They Wouldn't Have Done It

If you've been following Snoopgate, then you know that Bush and his team argue that the congressional authorization for military force overrides any FISA-related obstacle to the wiretapping in question.  (If you have no idea what I'm talking about, I refer you to Orin's excellent analysis.)

Well, here's another wrinkle.  According to AG Gonzalez (via Kos), the administration considered trying to get a bill passed amending FISA to expressly permit this warrantless monitoring; it ultimately chose not to pursue the law because it became clear that Congress wouldn't pass it.

This can mean only one of two things:

  1. When Congress passed the use of military force authorization, it did not intend to give the President this monitoring power, and if it had so realized, it would have more narrowly tailored the resolution.
  2. Congress may have wanted to give the President very broad powers, including the power to wiretap without a warrant, when it passed the military authorization; but it would not expressly give the President wiretapping power in a separate bill, perhaps because it would be too politically controversial.

Posted by Hillel Levin on December 20, 2005 at 09:11 AM in Hillel Levin | Permalink | Comments (0) | TrackBack (0)

Law, Justice, and the NYC Transit Strike

Pc201291_2 Local 100 of the Transit Workers Union of America has called a strike for its workers at the New York Metropolitan Transportation Authority.  With the subways and buses shut down, New Yorkers are forced to walk, car pool, or taxi to work, or skip it for the day.  It is unclear how long the strike will last, but Local 100 and the MTA seem fairly far apart in their negotiations.  This strike is the first one in 25 years; New Yorkers had gotten accustomed to last minute negotations that inevitably were resolved.  But not this time.

Continue reading "Law, Justice, and the NYC Transit Strike"

Posted by Matt Bodie on December 20, 2005 at 06:16 AM in Corporate, Current Affairs | Permalink | Comments (1) | TrackBack (0)

Monday, December 19, 2005

Larger matters than Kiwi

Like Steve, I too was surprised about the revelation that the NYT sat on the Snoopgate story for a year.  Some interesting developments.  First, Orin Kerr's got a thorough post up analyzing the various legal questions about the President's claim that the NSA snooping on domestic persons was legally permissible. Orin's basic thesis, I think, is that the snooping likely violated Congressional statutes but not necessarily (though possibly) the relevant constitutional provisions.  Dan Solove largely concurs

The suggestion that if Congress hadn't blocked the spying, the POTUS would be able to do it pursuant to his authority brings to mind an odd situation, noted by, among others, Justice Jackson:  "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."

Bush in the meantime has been on the offensive.  On the NYT's decision to sit on the story for a year before releasing it, Jonathan Alter reports that Publisher Pinch and Editor Keller were summoned to Bush's office last week, so Bush could try to persuade them to kill the story (finally).  No dice.  And there's poor Albert Gonzales, whose credibility once again is undermined.  Pinned in questioning by Senator Feingold, Gonzales said "it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes."  As Marty explains over at Balkinization, the Administration's posturing (under Gonzales' shilling) is English for chutzpah.

Update: the LA Times reports that the NYT had the story on Snoopgate prior to the 2004 election.

Posted by Dan Markel on December 19, 2005 at 09:52 PM in Criminal Law | Permalink | Comments (0) | TrackBack (0)

A storm brewin'

I've been tipped off by a couple readers about the storm developing in New Haven regarding the Yale Law Journal's decision to publish a symposium contribution -- entitled Control Mechanisms for Quasipublic Executives:  The Intersection of Corporate and Constitutional Law -- by Kiwi Camara and a frequent (and valued) commentator on this blog, Paul Gowder, who was a classmate of mine in law school.  I'm not sure how Paul got to know and co-write with Kiwi -- though perhaps they overlapped in law school and were introduced as among the youngest graduates of HLS in history -- but I'm pretty sure he wasn't responding to this unusual invitation by Kiwi.

The background story, in brief, is that a few years ago Camara used an offensive term in an outline that he posted on the HLS internet outline bank. As a result, Camara was at the center of controversy at HLS; I think there was even a New Yorker story about the tempest that his comment and subsequent response caused.   Now, post-clerkship with Harris Hartz on the 10th Circuit, Camara is at Stanford as an Olin Fellow.  He has written the above-mentioned piece with Paul, which they submitted to the YLJ for a symposium, and which was accepted on its merits.  (In this respect, kudos to Paul, who doesn't have an academic posting yet.) 

After the YLJ's acceptance of the piece, the YLJ's editors discovered Camara's earlier statements and  considered rescinding their offer to publish the piece and the invitation to speak at the symposium.  In the end, they decided not to rescind the offer.  And sure enough, there's now a blog that hosts discussion about the incident, mostly by Yale Law students.  Many of the comments on the blog are anonymous, which itself raises interesting questions.  Importantly, Paul denies that Camara is a racist, and recently forwarded an apology from Camara, which is pending publication on the blog.  (Update: I have received a copy of the apology which you can download here.)

Ultimately, much as I think Camara's comment was mean-spirited and bone-headed, I think the YLJ's decision to not rescind the offer to publish the piece is correct.  Camara hasn't commited a crime, and even if he had, I don't think the YLJ should be in the business of googling or ferreting out the bad actions of every person they decide to publish.  Many law profs have spots on their moral pasts and it would be surpassingly odd (and unfortunate) if good moral character had to be proved before publication in a law review could eventuate.  It's true that the YLJ is not a public forum and the editors have broad editorial discretion; such discretion may lawfully be used to publish only fellow travelers or non-offensive speakers.  But the question here is about moral judgment.  And it's a tough one. 

Continue reading "A storm brewin'"

Posted by Dan Markel on December 19, 2005 at 09:36 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack (1)

The Economic Death Penalty: Show me the Model!

Posner and Becker's blog posts on the economics of the death penalty provide an occasion for a few reflections.

Both Posner and Becker place a great deal of weight behind the empirical evidence that the death penalty deters crimes for which it is a punishment. (Becker explicitly disavows any other justification for the death penalty, Posner acknowledges that lots of other factors play into the calculus, but considers many of them a wash.) They don't go as far as the famous/infamous Vermeule/Sunstein line that capital punishment may be morally required, but the commitment to this sort of utilitarian line may lead them there.

Now, I happen to support the death penalty for certain serious crimes entirely independently of its deterrent effect. But if the argument for killing murderers is to rest entirely on the econometrics, I will have to be colored skeptical.

Continue reading "The Economic Death Penalty: Show me the Model!"

Posted by Will Baude on December 19, 2005 at 04:50 PM in Criminal Law | Permalink | Comments (1) | TrackBack (0)

Obscenity after Lawrence

This news story reports that (to the surprise of few, I imagine) the U.S. Court of Appeals for the Third Circuit has reversed a district-court decision invalidating several federal obscenity laws, "saying that those laws violate the Constitution.  [The trial judge] specifically cited a recent Supreme Court case, Lawrence v. Texas, in which the court ruled that laws prohibiting same-sex sodomy are unconstitutional.  He ruled that the Lawrence decision undermined obscenity statutes, as well as earlier Supreme Court decisions that upheld them."  (Here is a link to the Court of Appeals decision in Extreme Associates; here is the district-court opinion).

The trial judge had reasoned, in a nutshell, that "[a]fter Lawrence, the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts, as a legitimate, let alone compelling, state interest." He had also noted that "upholding the public sense of morality is not even a legitimate state interest that can justify infringing one’s liberty interest to engage in consensual sexual conduct in private[.]"

So . . . why (putting aside the whole "district-court judges should not announce the implicit overruling of Supreme Court decisions" thing) was the district-court judge in Extreme Associates wrong?

Posted by Rick Garnett on December 19, 2005 at 11:24 AM in Rick Garnett | Permalink | Comments (3) | TrackBack (0)

Murphy's "Getting Even" and Criminal Law

This semester (and last year), I gave my first-year Criminal Law students the option of writing (in addition to the final examination) a "critical review" of Jeffrie Murphy's "Getting Even:  Forgiveness and Its Limits."  (For those students who exercised this option, the critical review was "worth" about 1/3 of their final grade).  I highly recommend the book.  I've now read it three times, and continue to find it both enlightening and unsettling.  (I'm also a big fan of Murphy's essay, "Law Like Love."  This piece asks, "what would law -- particularly criminal law [and punishment theory] -- be like if we regarded love (agape) as the first virtue of social and legal institutions?")  Here is a blurb from the SSRN abstract for "Getting Even":

This book - drawing from the resources of philosophy, law, psychology, religion, and literature - argues that vindictive emotions (anger, resentment, and the desire for revenge) deserve a more legitimate place in our moral, emotional, legal and even religious lives than we currently recognize and that forgiveness, though often a great virtue, deserves to be more cautiously and selectively granted.

And, here is a review, published a few years ago in First Things.

I cannot say with any confidence -- at least, not yet -- how my "critical review" option is perceived by my students, but I'd welcome reactions from Prawfsblawggers and readers.  The idea, I guess, has been to provide students with a way -- if they want to -- to explore "punishment theory" questions in more depth than an essay question on a three-hour exam permits, and also to give those students who are (or who think they are, or who fear they might be) not-so-good at showing what they've learned on exams another, separate chance to do so.  The option has resulted in considerably more pre-Christmas exam reading than I would otherwise have, but I think I'm happy with it.

Posted by Rick Garnett on December 19, 2005 at 11:01 AM | Permalink | Comments (3) | TrackBack (0)

So, is Padilla Moot? Better Yet, Will it Matter?

As first reported via SCOTUSBlog here, here, and here, three different sets of briefs were filed in Padilla on Friday -- Padilla's reply to the government in the Fourth Circuit; the briefs of various amici supporting cert in the Supreme Court, and the government's op. cert. Like me, I'm sure you're shocked, SHOCKED, to find disagreement about whether the case really is "moot" thanks to Padilla's pending criminal indictment in the Southern District of Florida (I can't get Will Smith out of my head -- "party in the city while [where] the heat is on.").

Not that anyone cares whether I think the case is moot (although, to be fair, I find compelling the argument that the government has pointedly not disavowed the ability to re-detain Padilla as an "enemy combatant" should things fall through in Miami).  But, thanks to Judge Luttig, the first people who will really have their say is the Fourth Circuit panel in Padilla, Judges Luttig, Michael, and Traxler.

So, it seems to me the better question, this Monday morning, is what happens to the various mootness arguments once ("if") the Fourth Circuit decides to vacate its own decision.  After all, without a Fourth Circuit decision, what's left to contest?

At least technically, it's hard to see how a vacated Fourth Circuit opinion would necessarily undermine the Supreme Court's authority to review the case.  After all, the government _did_ timely file a notice of appeal to the Fourth Circuit, at which point the Supreme Court could have granted cert. before judgment (Padilla actually asked for such a writ, but his petition was denied). I don't see why the procedural posture would be any different with a vacated Fourth Circuit opinion. The Court has always taken a fairly generous view of its cert. jurisdiction under 28 U.S.C. [sec.] 1254, e.g., Hohn v. U.S., in 1998.

So, if the Court really wants the case, nothing the Fourth Circuit does can seriously get in the way. The problem is that, if the Court is even remotely on the fence about taking the case, the absence of a Fourth Circuit opinion to review has at least the practical affect of making the case less urgent. Without a Fourth Circuit opinion, there won't be, as I wrote a month ago, a fear of Justice Jackson's "loaded weapon" from Korematsu.

I still think the issues raised in Padilla are important enough to tolerate any means around the strict confines of mootness doctrine, and, as I argued in Jurist shortly after Padilla was charged, a 1988 concurrence by the late-Chief Justice Rehnquist may provide some of the doctrinal framework for getting there.  But as a far-away observer of the internal goings-on in D.C., it seems to me that the real question is how badly the Court wants Padilla back, and not, as all of Friday's filings debate, whether the case is or isn't moot.

Quite the legal realist's take. But what else could you expect on a Monday?

Posted by Steve Vladeck on December 19, 2005 at 08:58 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (2) | TrackBack (1)

Sunday, December 18, 2005

Eichenwald on Internet Child Pornography

Kurt Eichenwald, the New York Times business reporter who wrote Conspiracy of Fools and The Informant, has a harrowing and deeply disturbing story of a boy who was lured into performing sexual acts in front of his Webcam for money.  The article is here.  Eichenwald's account of how he discovered the story and met the victim is here.  After meeting the boy and hearing his story, Eichenwald brought the victim to see a doctor and encouraged him to kick a drug habit.  He also helped the victim find an attorney and went with him to meet with federal prosecutors.  Eichenwald's account provides a fascinating example of how journalists, attorneys, and other professionals should approach their relationships with clients, witnesses, or sources who have deep problems and need assistance beyond what the professional relationship usually entails.

Posted by Matt Bodie on December 18, 2005 at 08:53 PM in Criminal Law | Permalink | Comments (2) | TrackBack (0)

Saturday, December 17, 2005

California and a Popular Branch of Government

(Apologies for the format: I'm away in Apple land, which is almost as bad as China when it comes to Typepad)

I got the following note from J.H. Snider of the New America Foundation:

"Stanford University Professor James Fishkin is seriously considering
conducting an online deliberative opinion poll on the desirability of
creating an initiative in California to create a citizens assembly. For
those who don’t know, a deliberative opinion poll brings together a random
selection of citizens to deliberate and then vote on an issue. Unlike a
citizens assembly, a deliberative poll is completely independent of
government and cannot put a recommendation to a binding vote. Professor
Fishkin, the director of Stanford’s Center for Deliberative Democracy, is
the world’s leading advocate and practitioner of deliberative opinion polls.
Since the mid-1990s, he has conducted more than 30 deliberative opinion

This is an intriguing idea for a number of reasons. A deliberative poll has
a lot of features in common with a citizens assembly. In particular, both
achieve their democratic legitimacy from the random selection of members and
the depth of the deliberation that the members undertake. This means that a
deliberative poll on the citizens assembly initiative could be viewed as a
sort of dry run for the citizens assembly itself. Moreover, participants in
a deliberative poll might be viewed as uniquely qualified to evaluate the
merits of a citizens assembly because they would have direct experience with
a similar type of decision making body. If the poll resulted in a positive
evaluation of the citizens assembly, it could be great PR and a ringing
endorsement for the concept.

On the other hand, a deliberative poll would be a gamble. There would be no
guarantee of the outcome. In addition, the credibility of the deliberative
poll itself might come under scrutiny. If the turnout were low, then its
representative status would be seriously undercut. And there is always the
question of elite manipulation of the information and process available to
participants in a deliberative poll.

An added level of risk is that this would be an online rather than a
face-to-face deliberative poll. Online deliberative polls have a shorter
track record than their face-to-face cousins.

Don’t expect an online deliberative poll on the citizens assembly anytime
soon. Deliberative polls, like citizens assemblies, are hugely expensive
and Fishkin hasn’t yet raised any money for such a project. One reason that
online deliberative polls are so expensive is that participants must be paid
and, for those on the wrong side of the digital divide, supplied with free
computers and broadband connections. With several hundred participants
deliberating over an extensive period of time, the expenses can rapidly add

Way back in the early 1990s I chaired a task force for Vermont’s Secretary
of State on Information and Democracy. We held a daylong forum to discuss
various democratic reform ideas, and I invited Jim Fishkin to propose a
deliberative poll for Vermont. Since none had ever yet been staged, I
thought it was a great opportunity for him. But he informed me he had
bigger fish to fry—a multimillion dollar deliberative poll for the 1996
presidential primaries—so I gave up. Could this be Fishkin’s biggest fish
yet? Hard to predict, but he cannot beat the convenient backyard location.

J.H. Snider, Ph.D.
New America Foundation
1630 Connecticut Ave., NW
Washington, DC 20009

Can the Popular Branch be far off? See;=books&v;=glance

Posted by Ethan Leib on December 17, 2005 at 08:22 AM | Permalink | Comments (2) | TrackBack (0)

Thursday, December 15, 2005


I am silent but not gone.

Sometime last year I remember coming around to the view that things might be on the whole better if the U.S. Senate were once again elected by state legislatures rather than statewide races. I think my conversion may have had something to do with reading now-Judge Bybee's article Ulysses At The Mast. But now that I've read Akhil Amar's two recent posts (here and here) at Cato Unbound, I think I am gradually returning to the general wisdom. Not just because the trend at the time was moving toward defactor popular election anyway, but also because the senate is one of those few races in every state that is pretty much immune to the constant vagaries of redistricting.

However, I am less convinced than Professor Amar about the usefulness of the Senate as a training ground for the presidency. It is true that Senator Clinton would have more foreign policy experience if she is elected than Governor Clinton did when he was, but the White House for this reason has a whole lot of career foreign policy folks, and a whole lot more well-trained foreign policy people to give political appointments to. Foreign affairs are of course important, but it is not clear how important direct experience in D.C. foreign policy is to be able to manage them effectively. (Nor is there enough consensus on what an effective foreign policy looks like for us to be able to test the proposition empirically.)

Governors, unlike Senators, have more experience being solitary rather than collective constitutional decision-makers, i.e. being a single pivot point in the political bargaining game. I suspect that this is on the whole more useful, although again the terms are sufficiently ill-defined that it is hard to know how we would know.

Posted by Will Baude on December 15, 2005 at 08:59 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack (0)

No, Mom, the Government Isn't Listenin--Umm, I'll Have To Get Back To You

When Dana Priest of the Washington Post first broke the story about the so-called "Black Sites," I noted here that the secret prisons were one of my mom's conspiracy theories that even I didn't believe.

Well, score another one for my mom, courtesy of tomorrow's New York Times. As James Risen and Eric Lichtblau report,

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

I'm not sure what's scarier -- that the NSA has been listening, or that the Administration successfully convinced the Times to hold off on the story for an entire year?!? As the story itself explains:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. [emphasis added.]

Wow. Makes me wonder what we're going to learn about next year. Makes me wonder about that whole free press thing, too... No, newspapers shouldn't publish detailed plans about forthcoming military operations. But when the government conducts a campaign of domestic, internal surveillance that seems lacking for both historical and legal precedent, is it really responsible journalism to not report on that campaign for an entire year? Have we really become the post-Janet-and-Justin Super Bowl halftime show -- time-delayed for our protection?

Hopefully, these are the questions that people will be asking as they wake up to this story Friday morning.

[Update: Hat tip to Orin Kerr, who gets the ball rolling on the legal questions over at the Volokh Conspiracy.]

Posted by Steve Vladeck on December 15, 2005 at 07:56 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (8) | TrackBack (3)

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.

Continue reading "205 Years Later, Reiterating the Importance of the Election of 1800"

Posted by Steve Vladeck on December 15, 2005 at 09:39 AM in Books, Constitutional thoughts, Steve Vladeck | Permalink | Comments (1) | TrackBack (0)