Legal Theory Blog

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This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.

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Wednesday, June 30, 2004
Volokh Ranks the Justices on Free Speech Eugene Volokh has a very interesting post entitled Which Justices Have the Broadest (and Narrowest) Views of Free Speech?. Kennedy is broadest; Breyer is narrowist. Reading Eugene's nuanced and intelligent post got me thinking about the assumption, standard in political science, that a unidimensional left-right ideology line captures almost all of the variance among the justices. Is free speech an exception? Any political scientists out there willing to enlighten me?

Baude on Thomas & Scalia Split The New Republic Online today has a column by Will Baude (Crescat Sententia) entitled Brothers in Law. Here's a taste:
    Given the widely held perception of Thomas as an unserious justice who leans on Scalia for intellectual guidance, it probably surprised many Court watchers to see the justices parting ways on two key decisions during the last week--yesterday's decision striking down the Child Online Protection Act and Monday's decision in Hamdi v. Rumsfeld. But it shouldn't have come as a surprise at all. That's because the widely held myths about Thomas are largely false: He is neither a knee-jerk conservative nor Scalia's yes-man. Rather, he has carved out a distinct jurisprudence as an advocate of textualism, a style of reading laws and constitutions in which words are taken at face value rather than interpreted in historical context or mitigated by practical considerations. There are notable ideological differences between Scalia and Thomas. Scalia, for instance, takes a narrower view of free speech and is less willing to reverse previous Court decisions, even when it is clear that they departed from the original intentions of the Constitution's framers. Thomas, by contrast, sees himself as a staunch defender of the classically liberal vision of the country's founders.

Hasen on Larios Be sure to check out Rick Hasen's What Does Today's Summary Affirmance in Larios v. Cox mean? over at Election Law Blog. This is the 1 person 1 vote case in which the lower court had struck down a redistricting plan for state legislators on the theory that political gerrmandering was illicit. Here's a taste from Rick's post:
    The Supreme Court's summary affirmance today in Larios supports the result in the lower court, but not necessarily its reasoning. Thus, the case stands for the proposition that there is no 10% safe harbor any longer; state and local redistricting plans can be struck down even if the deviations are under 10%.

Welcome to the Blogosphere . . . to Hanno Kaiser's Weblog, which covers antitrust, jurisprudence, law & economics, privacy, and free software.

Smith on the Nonsectarian Principle Steven Douglas Smith (University of San Diego - School of Law) has posted Nonestablishment Under God? The Nonsectarian Principle on SSRN. Here is the abstract:
    Using as a point of reference the Ninth Circuit's assertion in Newdow v. United States Congress that "[a] profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation "under Zeus," or a nation "under no god," this essay attempts to disentangle three themes that the modern discourse of religious freedom often conflates, with baneful effect. We can call these the "public secularism" principle, the "neutrality" principle, and the "nonsectarian principle." The essay argues that the first two of these principles have exercised a pernicious influence over First Amendment jurisprudence: but the third, if it could be extracted so that its own distinctive virtues could be appreciated, might provide valuable mooring for what is at present a deeply disoriented discourse.

Alexander & Schwarzschild on Grutter Larry Alexander and Maimon Schwarzschild (University of San Diego School of Law and University of San Diego School of Law) have posted Grutter or Otherwise: Racial Preferences and Higher Education (Consitutional Commentary, Vol. 21, 2004) on SSRN. Here is the abstract:
    Last year's Supreme Court decisions on affirmative action, Gratz and Grutter, are dubious as constitutional law, bringing to mind what John Hart Ely said about Roe v. Wade: "[I]t is not constitutional law, and gives almost no sense of an obligation to try to be." There was at best a cosmetic difference between the University of Michigan undergraduate school's crude "20-points-extra for minority applicants" (which the Court struck down) and the Law School's "holistic" and disingenuous preferences (which the Court upheld). The idea that the Law School has a "compelling state interest" in these racial and ethnic preferences is utterly inconsistent with the Court's suspect classification-compelling interest jurisprudence now extending back over many decades. Yet the Grutter decision does not require public colleges and universities to have racial preferences in admissions, much less in faculty hiring or promotions. The decision merely permits admissions preferences. So the question is thrown back to the universities, or to the state legislatures, to decide about preferential affirmative action as a matter of policy. And in this article, we suggest that racial preferences, at least in higher education, have proved very bad as a matter of policy. First, if you are going to give racial preferences, you have to identify people by race. It is not only invidious for the government to do that, it is increasingly impossible as people marry and have children outside the racial "affirmative action" boxes. Second, racial preferences are bad for students and for educational institutions themselves. Preferences dilute admissions standards that, while far from perfect, are much better than "race" as admissions criteria. Preferential admissions tend to lower educational standards too, as schools try to disguise the educational gap between those admitted preferentially and those admitted by standard criteria. One of the worst outgrowths of racial preferences is that students admitted through such preferences are systematically mismatched educationally. A generation of minority students, who would have done well, or certainly no worse than average, at colleges where they would have been admitted on their merits, have instead been "cascaded" upwards to colleges where their preparation is significantly below average and where, entirely predictably, they do poorly. Preferences, moreover, lead to identity politics and racial segregation on campus; they promote nihilism about academic quality; and they create a culture of dishonesty which inevitably spills over into many aspects of educational life. This article urges public - and private - colleges and universities to hold students and faculty of whatever race or ethnicity to the same high standards, and to reject the educational politics of racial and ethnic division which are implicit in preferential affirmative action.

Jinks on the Law of War Derek Jinks (Arizona State University College of Law) has posted Protective Parity and the Law of War (Notre Dame Law Review, Vol. 79, 2004) on SSRN. Here is the abstract:
    Traditionally, protective schemes in the law of war are tightly coupled to rigid status categories. The contours of these status categories (and the content of corresponding protective schemes) reflect the dual normative commitments of this body of law: military necessity and humanitarianism. Formal protection varies along a number of axes (including combatant status, nationality, territory, and the character of the conflict) because it is thought that these factors roughly track the vulnerability of and the security challenges posed by specific status groups. In early law of war treaties, specific status categories are defined in terms that encourage protection-seeking states (and at times individuals) to orient their behavior in ways that promote the objectives of humanitarian law. Protection, in these treaties, is a carrot for rule-regarding behavior - harsh, summary treatment at the hands of the enemy, the stick. Such an approach, by design, includes coverage gaps. Beginning with the 1949 Geneva Conventions, this understanding of status has been in decline. Over the last half century, protective schemes have converged and coverage gaps have closed. From the human rights perspective, these developments are all to the good. The humanization of humanitarian law reflects the progressive trajectory of international law in which universal human rights trump parochial state interests. From the traditionalist perspective, the law of war has lost its compass. Protection of unlawful combatants (1) undermines the humanitarian ambitions of the law of war by compromising the protection of innocent civilians; and (2) undermines political and institutional support for the law of war by imposing on states obligations that are inconsistent with various security imperatives. Both views are flawed. Protection should, contra the human rights view, accommodate the realities of the battlefield. On the other hand, humane treatment of the enemy, irrespective of pre-capture conduct, furthers the military objectives of the capturing state. My argument is that humanitarian protection in time of war should not vary by detainee status category - what I will call protective parity. The paper has a descriptive and a prescriptive dimension. Through an analysis of the legal situation of unlawful combatants, I illustrate that (1) protective schemes are converging; and (2) although the protective significance of POW status is declining, there are some persistent gaps in coverage. The unique protective significance of POW status (and the claims that justify this extra increment of protection) suggests that POWs are systematically over-protected (even if only to a modest extent) and unlawful combatants are systematically under-protected. To make this case, I offer a cluster of offensive claims and one defensive claim. On the offensive side, I argue that various claims for expanding or contracting humanitarian protection do not track status categories. In this way, the claims that undergird these ostensibly competing schools of thought support protective parity. Consider the following related points. If protective schemes compromise legitimate security interests (think of the policy arguments advanced by the United States to justify its treatment of the detainees in Cuba), then some status categories (e.g., POWs) are systematically over-protected. That is, these security-based claims, if valid, would apply irrespective of whether the detainees were properly classified as POWs or not. If humane treatment of the enemy increases battlefield effectiveness (because poor treatment discourages surrender, encourages reprisals, decreases troop morale, and decreases political support for the war effort), then some status categories (e.g., unlawful combatants) are systematically under-protected. On the defensive side, I argue that protective parity is consistent with the principle of distinction. Even if irregularization undermines distinction, the question is how best to encourage fighters to distinguish themselves from the civilian population. I maintain that protective status categories are an inefficient way to incentivize individual combatants because these categories necessarily trade on collective considerations - such as the organizational characteristics of the fighting force. The rule of distinction would be better served by an individualized war crimes approach that accorded all fighters substantial humanitarian protection and punished (in accord with basic requirements of due process) individual bad actors.

Merges on the Public Domain Robert P. Merges (University of California, Berkeley - School of Law (Boalt Hall)) has posted A New Dynamism in the Public Domain (University of Chicago Law Review, Vol. 7 1, pp.183-203, 2004) on SSRN. Here is the abstract:
    Many believe intellectual property has overreached, and that policymakers must respond. In this essay, I argue that the critique may have merit, but private parties are in some cases taking matters into their own hands. Firms and individuals are increasingly injecting information into the public domain with the explicit goal of preempting or undermining the potential property rights of economic adversaries. Biotechnology firms invest millions of dollars in publin domain gene sequenc databases, to prevent hold-ups by firms with patents on short gene sequences. Major software firms fight entrenched rivals by investing millions of dollars, contributing to open source operating systems. In both cases, property-preempting investments (PPI's) are made to offset the effects of competitors' property rights. Individuals and nonprofits are joining in too, with initiatives such as the Creative Commons project. All of these major private investments in the public domain reveal a self-correcting feature of the intellectual property system that has been overlooked until now, and signal that public lawmaking is not the only arena in which the excesses of intellectual property may be addressed.

Claus on the True Meaning of Separation Laurence Claus (University of San Diego School of Law) has posted Montesquieu's Mistakes and the True Meaning of Separation on SSRN. Here is the abstract:
    "The political liberty of the subject," said Montesquieu, "is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another." The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu's constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could best be achieved, and had been achieved in Britain, by assigning three fundamentally different governmental activities to different actors. He was wrong. His mistaken conclusion rested on two errors. The first of these was theoretical; the second, both empirical and theoretical. First, Montesquieu's analysis was informed by the early eighteenth-century orthodoxy that no sovereign power could viably be divided. Montesquieu rightly saw that liberty from the arbitrary exercise of power would be served by apportioning power among multiple actors, but he thought the apportionment sustainable only if along essentialist lines. Lawmaking could be separated from law-executing, but neither of those kinds of power could durably be divided internally. The extent to which actors participated in the exercise of more than one kind of power Montesquieu viewed as a protective qualification to a primary essentialist separation. He failed to see that involving multiple actors in every exercise of power, albeit by permitting actors' individual involvement in the exercise of more than one kind of power, is the true protection against arbitrariness. Checks and balances, not essentialist separation of activities, prevent actors from conclusively determining the reach of their own powers. The critical liberty-promoting criterion for separation is not whether powers differ in kind, but whether apportionment will prevent actors from conclusively determining the reach of their own powers. Second, Montesquieu did not appreciate the nature of the English common law and the mechanism that its doctrine of precedent established for authoritative judicial exposition of existing law. That empirical error caused him to distinguish and trivialize the English judicial function as merely the ad hoc determination of disputed facts. Consequently, Montesquieu failed to recognize the lawmaking character of English judicial exposition. This essay analyzes implications of Montesquieu's mistakes for modern claims, both in Britain and in the United States, that liberty and the rule of law are promoted by separating power in certain contexts. In particular, this essay questions the British Government's recent claim that the values underlying separation of powers theory call for removing ultimate appellate jurisdiction from the House of Lords. It also traces Montesquieu's influence on the American founders' attempt to separate power along essentialist lines, and considers some sub-optimal consequences of that attempt, including the nondelegation quandary and the emergence of an unchecked judicial lawmaker.

Book Announcement: Open Architecture as Communications Policy
    Open Architecture as Communications Policy Contact:
      Mark Cooper Director of Research Consumer Federation of America 301-384-2204
    Policy Leaders Identify Open Architecture as the Key to Internet’s Broadband Future New book warns that FCC policy shift jeopardizes innovation and economic growth WASHINGTON – In a book released today, leaders in Internet policy and other telecommunications experts explore new, technology-neutral approaches to preserving open communications networks and the freedom of the Internet. Open Architecture as Communications Policy details how network neutrality is imperative for the future of an innovative high-speed Internet, cautioning regulators not to impose legacy telecommunications regulation on Internet Protocol-based applications. The book, edited by Mark N. Cooper and published by the Center for Internet and Society (CIS) at Stanford Law School, grew out of a forum on Capitol Hill cosponsored by CIS and the Consumer Federation of America. “The book brings together many of the best minds on the convergence of communications technology and public policy and some of the strongest advocates of open architecture as the underpinning of the success of the Internet,” Cooper said. “This book is especially relevant now, as the FCC attempts to reverse its 35-year long commitment to ensuring open, nondiscriminatory interconnection and carriage of data services on the nation’s telecommunications networks. Open architecture at the heart of the Internet and telecommunications networks created an environment for dynamic innovation and the widespread adoption of the Internet. “With two cases pending Supreme Court review, a dozen proceedings ongoing at the FCC, and talk of a rewrite of the 1996 Telecom Act in the air, the future architecture of the Internet hangs in the balance. It is critical for policy makers to have a full appreciation for the importance of principles of open architecture as public policy.” The book combines several classic works on open architecture and public policy with new essays and empirical studies from John W. Butler, Vinton G. Cerf, Earl W. Comstock, Mark N. Cooper, Michael J. Copps, Robert E. Kahn, Mark A. Lemley, Lawrence Lessig, Richard S. Whitt, and Timothy Wu. The book is available for download at no charge under a creative commons license at: Requests for review copies of Open Architecture as Communications Policy can be sent to Mark Cooper at Paper copies of the book are available from Amazon. _______________________________________ Book Summary: Open Architecture as Communications Policy Mark N. Cooper, Editor Open architecture is the design principle on which the success of the Internet and information technologies rests. In this book, founders of the Internet and its most ardent defenders describe how open architecture was implemented in the end-to-end principle of the Internet, open interfaces of the personal computer, and nondiscriminatory interconnection and carriage for communications networks. Empirical studies examine the convergence of technology and public policy that created a dynamic environment for decentralized innovation, rapid technological change, and strong economic growth. The digital communications platform became a general-purpose technology with a transformative power equaling or exceeding the great industrial technologies of a century earlier – railroads, electricity, and telecommunications. Legal analyses demonstrate that the Federal Communications Commission inexplicably turned its back on the thirty-five year record of success of its Computer Inquiries, which ensured nondiscriminatory access to communications services. Case studies document the chill on innovation that results when owners of advanced telecommunications networks are allowed to close the platform, exclude service providers, restrict applications and limit the availability of network functionalities. The book explores new, technology-neutral approaches to preserving both open communications networks and the freedom of the Internet. Contents/Contributors FCC Commissioner Michael Copps established the policy context for the Capitol Hill symposium that gave the impetus for the book (Broadband Technology Forum: The Future Of The Internet In The Broadband Age, March 26, 2004) with a challenge for the “Internet in the broadband age… We need to make sure that it continues to foster freedom and innovation, that the openness that is its hallmark has a future every bit as bright as its past.” Robert E. Kahn and Vinton G. Cerf, What Is the Internet (and What Makes It Work)?, INTERNET POLICY INSTITUTE (1999, revised 2004), provide a brief discussion of the architecture of the Internet through the chronology of the development of its fundamental technologies. Both of the authors were at the center of the creation of the seminal technologies. They are keenly aware of the role of institutions and public policies in the creation of the Internet. Mark A. Lemley, Professor of Law at University of California at Berkeley, and Lawrence Lessig, Professor of Law at Stanford Law School and founder of the Center for Internet and Society, include a paper presenting a discussion of the design principle of the Internet: The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, UCLA LAW REVIEW (2001). Not only does it explain how the design principle operates to promote innovation, but also it directly refutes many of the economic arguments made by those who would abandon, or allow the network facility owners to abandon, the end-to-end principle and open communications networks. A study by Mark N. Cooper, Making the Network Connection, takes a broad view of the impact of the Internet. It attempts to use network theory and recent analyses of technological change to reinforce the long-standing claim that the open architecture of the Internet represents a fundamental change and improvement in the innovation environment. It concludes with an examination of the role of Internet Service Providers in the spread of the Internet. In a second Chapter entitled Anticompetitive Problems of Closed Communications Platforms, which draws from an earlier paper Open Communications Platforms: Cornerstone Of Innovation And Democratic Discourse In The Internet Age, JOURNAL OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW (2003), Cooper demonstrates the increased possibility of anticompetitive practices by firms that dominate key points of the digital communications platform. It links the potential harm back to the network theory by presenting a case study of the elimination of Internet Service Providers. Timothy Wu, University of Virginia Law Professor, provides a detailed study of the customer contract provisions that threaten or infringe on the freedom for consumers to use the Internet and applications in a paper entitled Network Neutrality, Broadband Discrimination, (first published in JOURNAL OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW (2003), which also attempts to precisely define the characteristics of the Internet that should be preserved. Wu also includes a new analysis (from Broadband Policy: A User’s Guide, Journal OF TELECOMMUNICATIONS AND HIGH TECHNOLOGY LAW, forthcoming) that reviews several aspects of the current policy debate and offers a recommendation of nondiscrimination. Lawrence Lessig joins Wu in a formal proposal for network neutrality that was presented to the Federal Communications Commission (FCC) in an ex parte filed at the FCC. Earl W. Comstock and John W. Butler, partners in the same firm, combine legal analysis from Access Denied: The FCC’s Failure to Implement Open Access as Required by the Communications Act, JOURNAL OF COMMUNICATIONS LAW AND POLICY, (2000) with the legal brief filed on behalf of Earthlink in the second case heard by the Ninth Circuit Court of Appeals involving broadband (Brand X v. FCC, 345 F. 3d 1120 9 9th Cir. 2003). Comstock and Butler show why the FCC has had so much trouble convincing the Ninth Circuit Court of Appeals that its approach to deregulating advanced telecommunications networks fits under the statute. Twice the Court found that the obligations of nondiscrimination and interconnection of Title II of the Communications Act apply to cable modem service. The detailed recounting of the history and purpose of the Computer Inquiries that runs through the legal arguments is a strong reminder that the FCC adopted the correct policy over 35 years ago when it recognized the fundamental importance of nondiscriminatory access to the essential telecommunications function of the network on which applications and services ride. The book concludes with a discussion of Horizontal Leap Forward that combines a paper by Richard Whitt of MCI that formed the basis for Vinton Cerf’s comments to the forum and a letter from Cerf to Chairman Powell and Secretary of Commerce Evans. The paper picks up and develops the distinction between transmission and applications as it is being discussed in regard to contemporary digital networks. Whitt attempts to synthesize the emerging thinking about reforming regulation of communications by moving from the old vertical view, in which industries are regulated because of their underlying technologies or the services they provide, to a horizontal view, in which similar functionalities are treated similarly across networks, regardless of which technology is used. Open architecture at the physical or transmission layer is the key policy advocated in the paper.

Leib on Redistricting Ethan J Leib has posted Ugly White Districts on SSRN. Here is the abstract:
    A case just decided by a three-judge panel in the Southern District of New York, where plaintiffs challenge the 2002 New York State Senate redistricting plan, presents a new kind of redistricting challenge. See Rodriguez v. Pataki, 2004 WL 503748 (S.D.N.Y.). Rodriguez raises the issue of what to do about bizarrely-shaped white districts that are constructed or preserved using race as an obvious motivation - apparently in violation of Shaw v. Reno, 509 U.S. 630 (1993), which held ugly black districts to be violative of the Fourteenth Amendment's Equal Protection Clause - but are adjacent to majority-minority districts that must be preserved in accordance with both Sections 2 and 5 of the Voting Rights Act, the laws forbidding dilution and retrogression of majority-minority districts. Here, I ask what Justice Sandra Day O'Connor should do about unsightly majority white districts that are drawn principally to maintain white majorities, eve n if such districts also help fashion adjacent majority-minority districts required by the Voting Rights Act.

Edelman, Nagareda, and Silver on Allocation in Multiple-Claimant Representations Paul H. Edelman , Richard A. Nagareda and Charles Silver (Vanderbilt University School of Law , Vanderbilt University School of Law and University of Texas Law School) have posted The Allocation Problem in Multiple-Claimant Representations on SSRN. Here is the abstract:
    Multiple-claimant representations - class actions and other group lawsuits - pose two principal-agent problems: shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, settlement vetoes, and third-party review) to encourage appropriate allocations. The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken and that its consequence has been to misdirect our understanding of the importance of information problems and bargaining costs in attorney-client relationships. In fact, it is relatively straightforward, as a mathematical matter, to design a two-part contingent fee arrangement that incentivizes a lawyer to both maximize an aggregate recovery and allocate it according to relative claim values. The failure of the market for multiple-claimant representations to generate fee arrangements of this type therefore reflects the operation of empirical factors, not the inherent limits of contingent fees. We believe the principal barriers are information and bargaining costs. Two-part contingent fee arrangements require more information than claimants or attorneys are likely to possess and require more expensive negotiations than the monitoring devices the market actually employs. Monitoring devices are thus cheaper substitutes for more refined contingent fee arrangements, rather than unique solutions to allocation issues.

Tuesday, June 29, 2004
Ashcroft v. ACLU. Updated 5:11 p.m.
    Introduction The Supreme Court has decided Ashcroft v. ACLU, with a 5-4 vote that preserves the injunction against enforcement but remands for further proceedings. Here is the statement of the holding from the syllabus:
      The Third Circuit was correct to affirm the District Court’s ruling that enforcement of COPA should be enjoined because the statute likely violates the First Amendment. . . . The District Court did not abuse its discretion when it entered the preliminary injunction. . . . It is reasonable to assume that technological devel-opments important to the First Amendment analysis have occurred in the five years since the District Court made its factfindings. By affirming the preliminary injunction and remanding for trial, the Court allows the parties to update and supplement the factual record to re-flect current technology. Remand will also permit the District Court to take account of a changed legal landscape.
    And from the opinion:
      This opinion does not foreclose the District Court from concluding, upon a proper showing by the Government that meets the Government’s constitu-tional burden as defined in this opinion, that COPA is the least restrictive alternative available to accomplish Con-gress’ goal.
    And here are the votes:
      KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a con-curring opinion, in which GINSBURG, J., joined. SCALIA, J., filed a dis-senting opinion. BREYER, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O’CONNOR, J., joined.
    The Procedural Posture & the Remand for a Trial Ashcroft came up on an interlocutory appeal following a preliminary injunction and now has been remanded for a trial. From a proceduralist's point of view, this result can hardly be a shock. The standard of review for preliminary injunctions is "abuse of discretion," and unless the grant of a preliminary injunction rests on a predicate error of law, a remand is the expected outcome. The Brief for Petitioner (the brief filed on behalf of the United States) is remarkably weak--really dreadfully weak--on this point. In the crucial section, entitled "There Is No Alternative To COPA That Is Equally Effective," there is no discussion at all of the procedural posture. The government treats this issue as if the Supreme Court were reviewing conclusions of law by the de novo standard. Of course, the Supreme Court is inconsistent about procedural issues in general and standards of review in particular. If the Court had really wanted to uphold COPA, it could have done so. (Because the Supreme Court has the final word, it can do whatever it wants within very broad limits.) But after reading the Opinion and the Brief for Respondent, this decision seems entirely unremarkable in result. Having said that, I do think that the majority has sent a message to the District Court re the factual inquiry into "less restrictive alternatives" to COPA. Given the clear message that its prior findings meet the Court's approval, the District Court will surely take a very hard look at any evidence the government might offer against the use of filtering as an alternative. It hard to imagine what evidence would suffice.
    Opinions Blogosphere
      --Balkinization. Jack Balkin posts COPA sent back for retrial.
        Breyer's dissent also raises the question of whether this decision is simply a temporizing move. It's quite possible that there were five votes to keep the stay, but not five votes to strike the statute down in its entirety. So the result is a compromise-- kick it back to the lower courts for another round. Breyer says: there's no more evidence you need to make a decision. So you should make one. If you think that there are no real less restrictive alternatives to this statute, or, put another way, that you don't want Congress legislating in this area, you should simply say so.
      --How Appealing. Today's Supreme Court Rulings.
      --Volokh Conspiracy. Eugene Volokh posts Another Scalia/Thomas Split.
      --Scotus Blog. Sex, the Internet and congressional frustration.
        Thus, the Court sketched out a future scenario in which Congress does the best it can to capture a moment in digital time as a basis for regulation, the inevitable legal challenge ensues to block the new rules, and then the predictable delays in litigation carry the dispute into an entirely new, and very different, digital moment. Kennedy stressed that the Court was not setting up “an insuperable obstacle to fair review” by requiring Internet regulation cases to be based upon current facts. But his stress on the technology gap that opens over the years clearly was a warning that the legislative task will be difficult, indeed, if Congress hopes to adopt a censorship regime that can stand up in the Supreme Court.
        Aside from the shadow that this warning casts over any new legislation in this field, Congress is almost sure to be deeply offended by the Court’s reaction to a law it thought it was tailoring precisely to fit Supreme Court specifications. The 1998 law was a new attempt to insulate minors from sex on the Internet after the Court in 1997, in Reno v. American Civil Liberties Union, had struck down an earlier version. Supposedly learning from that experience, Congress passed COPA in somewhat narrower form – for example, it lowered the age of youth to be sheltered by law to those below 17, and it limited its ban to sexually explicit offerings on the Web, and only those that are commercial in nature. It adopted a formula to define Web items it regarded as harmful to minors from the Court’s own formulas in prior rulings. Today, none of that helped the congressional cause, at least for now.
      --The Importance of. First thoughts on Ashcroft v. ACLU by Ernie Miller.
        I'm not a fan of obscenity law. I think it is mess that should simply be gotten rid of. For this reason, Breyer's dissent fascinates me. One of the main reasons the law isn't burdensome, according to Breyer, is because it mostly applies to content that doesn't receive protection from the First Amendment anyway, obscenity:
          The Act’s definitions limit the material it regulates to material that does not enjoy First Amendment protection, namely legally obscene material, and very little more.
        Indeed, the language does track the "Miller" test for obscenity (no relation), but with a slight difference: it applies "with respect to minors." You would think that would mean something, but you would be mostly wrong, according to this dissent:
          The only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors,” §231(e)(6)(A), and “for minors,” §231(e)(6)(C). But the addition of these words to a definition that would otherwise cover only obscenity expands the statute’s scope only slightly. That is because the material in question (while potentially harmful to young children) must, first, appeal to the “prurient interest” of, i.e., seek a sexual response from, some group of adolescents or postadolescents (since young children normally do not so respond). And material that appeals to the “prurient interest[s]” of some group of adolescents or postadolescents will almost inevitably appeal to the “prurient interest[s]” of some group of adults as well.
      --New York Times. Justices Uphold Block of Web Porn Law but Send Case Back.
        The majority explicitly stopped short of deciding whether the law is constitutional. That is a question that can only be answered after a trial, the majority said, even as it acknowledged that the rapid advances in Internet and computer technology make it difficult to foresee what all the issues at a trial will be.
      --CNN. High court bars Internet porn law enforcement.
        In considering the issue a third time, the court did not end a long fight, however. The majority voted to send the case back to a lower court for a trial that could give the government a chance to prove the law does not go too far.
      --Washington Post. High Court Leaves Online Porn Case Unresolved.
        The court specifically recommended increased use of "filtering" software that, once installed on computers, can block certain kinds of content. Justice Anthony Kennedy, writing for the majority, conceded that filters are not perfect, but said that "content-based prohibitions" like COPA "have the constant potential to be a repressive force in the lives and thoughts of a free people."
      --Christian Science Monitor. Court upholds objections to law regulating Internet porn.
        On a broader level, the decision is significant because congressional efforts to protect children from online pornography represent the cutting edge of government attempts to regulate cyberspace.
        A debate has long raged over whether the Internet should be treated as an unrestricted free market of ideas and images or more as a government-controlled information "superhighway" complete with speed limits, tolls, and cyber traffic cops.
        With this ruling, the nation's highest court has declined to endorse a role for the US government as a cyber traffic cop, at least in this context.
      --U.S. Newswire. Morality In Media 'Saddened But Not Surprised' by Supreme Court's Ruling on 'COPA' Case.
      --Los Angeles Times. Justices Strike Down Online Porn Law.
        Today's ruling is an important victory for the owners and operators of thousands of websites. In their view, the law might have subjected them to criminal punishments, not for selling pornography but for including sexual explicit photos or discussions that might be seen as harmful to minors.

Yglesias on Rawls Via Chris Bertram, I came across this post by Matthew Yglesias on John Rawls:
    A Theory of Justice is a brilliant work in many ways, but it’s also — quite obviously — wrong in a number of ways and employs a variety of arguments that are pretty dubious. Any undergraduate can see this, and dozens — if not hundreds — do so every semester. Now it seems to me that a slightly more scrupulous philosopher might have looked at the manuscript and said to himself, “this is a very interesting argument I’m putting together here, but it doesn’t quite work. Better keep on revising.” But instead Rawls put his thought-provoking work out there in the press, attracting decades worth of criticisms, counter-criticisms, suggestions for improvement, and so forth, thus becoming the major figure in postwar political philosophy.
Yglesias's hubris is simply astonishing. He is obviously unaware of the history of A Theory of Justice, surely one of the most thoroughly vetted works in the history of contemporary academic philosophy. Rawls is certainly controversial--every great political philosopher is--but to assert that A Theory of Justice suffers from obvious problems that an undergraduate can spot is so off the mark that it calls Yglesias's integrity or judgment into question. Bad form. Poor job. Shame.

Monday, June 28, 2004
Hamdi, Padilla, & Rasul: Updated on June 29 at 12:04 p.m.
    Introduction The Supreme Court decided Hamdi, Padilla, and Rasul This morning. This post, which will be updated throughout the day is about the three decisions, with links to opinions, news, and blogospheric reaction, as well as my own commentary. Here are the bottom lines:
      Nos. 03-334, Rasul v. Bush, and 03-343, Al Odah v. United States, per Justice Stevens, reversed and remanded. 6-3 for Rasul, et al.
        The holding as stated in the syllabus:
          United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.
        The vote count as stated in the syllabus:
          STEVENS, J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined.
      No. 03-6696, Hamdi v. Rumsfeld, per Justice O'Connor, reversed and remanded. 8-1 for Hamdi.
        The holding as stated in the syllabus:
          The judgment is vacated, and the case is remanded.
            JUSTICE O’CONNOR, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.
            JUSTICE SOUTER, joined by JUSTICE GINSBURG, concluded that Hamdi’s detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportu-nity to offer evidence that he is not an enemy combatant.
        The vote count as stated in the syllabus:
          O’CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and KENNEDY and BREYER, JJ., joined. SOUTER, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which GINSBURG, J., joined. SCALIA, J., filed a dissenting opinion, in which STEVENS, J., joined. THOMAS, J., filed a dissenting opinion.
      No. 03-1027, Rumsfeld v. Padilla, per the Chief Justice, reversed and remanded. 5-4 for Rumsfield on jurisdictional grounds.
        The holding as stated in the sullabus:
          1. Because this Court answers the jurisdictional question in the negative, it does not reach the question whether the President has authority to detain Padilla militarily.
          2. The Southern District lacks jurisdiction over Padilla’s habeas petition.
        The vote count as stated in the syllaubs:
          REHNQUIST, C. J., delivered the opinion of the Court, in which O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion, in which O’CONNOR, J., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined.
    Opinions How the Justices Voted The following is a list of Justices, in order of seniority, with their votes (opinions joined or authored) in each of the cases:
        Rasul--joined Scalia’s dissenting opinion.
        Hamdi--joined O’Connor’s plurality opinion.
        Padilla--authored opinion of the Court.
        Rasul--authored opinion of the Court.
        Hamdi--joined Scalia’s dissenting opinion.
        Padilla--authored dissenting opinion
        Rasul--joined opinion of the Court.
        Hamdi--authored plurality opinions.
        Padilla--joined opinion of the Court.
        Rasul--authored dissenting opinion.
        Hamdi--authored dissenting opinion.
        Padilla--joined opinion of the Court.
        Rasul--authored concurring opinion.
        Hamdi--joined O’Connor’s plurality opinion.
        Padilla--joined opinion of the Court.
        Rasul--joined opinion of the Court.
        Hamdi--authored concurring opinion.
        Padilla--joined Stevens’s dissenting opinion
        Rasul--joined Scalia’s dissenting opinion.
        Hamdi--authored dissenting opinion.
        Padilla--joined opinion of the Court.
        Rasul--joined opinion of the Court.
        Hamdi--joined Souter concurrence.
        Padilla--joined Souter dissent.
        Rasul--joined opinion of the Court.
        Hamdi--joined O’Connor’s plurality opinion.
        Padilla--joined Stevens’s dissenting opinion
    O'Connor was the only Justice to join the Opinion of the Court in Rasul and Padilla and to join (and author) the plurality opinion in Hamdi. Only one other Justice, Anthony Kennedy, was in the majority in all three cases. Two Justices, Scalia and Thomas, dissented in both Rasul and Hamdi and joined the opinion of the Court in Padilla. Aaron Schwartz offers this interesting chart.
      --Scotus Bog.
        Marty Lederman has post entitled Hamdi and Padilla Appear to be a Huge Loss for the Government.
          In Hamdi, four Justices, including Justice Scalia, conclude that Hamdi's detention itself is unlawful -- a result that Hamdi himself barely argued for (his briefs being more focused on the opportunity to challenge his encombatanttnet status).
        Tom Goldstein offers Apprendi redux.
        Amy Howe posts Jurisdiction in Padilla and Rasul.
          In reaching its holding [in Padilla], the Court relied on what it described as its “longstanding practice confirm[ing] that in habeas challenges to present physical confinement . . . the default rule is that the proper respondent is the warden of the facility where the prisoner is being held.” The Court acknowledges that “Padilla’s detention is undeniably unique in many respects,” but concludes that “it is at bottom a simple challenge to physical custody imposed by the Executive—the traditional core of the Great Writ” and “thus not unique in any way that would provide arguable basis for a departure from the immediate custodian rule.” Further, the Court explained, Section 2241 allows district courts to issues writs of habeas corpus only “within their respective jurisdictions.” The combination of these two principles, according to the Court, “compose a simple rule that has been consistently applied in the lower courts, including in the context of military detentions: Whenever a §2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement.” Such a rule is necessary, the Court continued, to prevent “rampant forum-shopping, district courts with overlapping jurisdiction, and the very inconvenience, expense, and embarrassment Congress sought to avoid when it added the jurisdictional limitation 137 years ago.”
        Lyle Denniston posts No presidential monopoly on war powers.
          The Supreme Court's first review of the Bush administration's handling of the war on terrorism may force a fundamental reordering of constitutional priorities, especially in the way the government may deal with individuals caught up in that war. Amid all the writing by the Justices in today's three historic rulings, no sentence stands out as vividly as this one, "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."
      --How Appealing. Today's U.S. Supreme Court opinions and Order List.
      --Volokh Conspiracy.
        Eugene Volokh posts Justices Scalia & Breyer.
          I've only read the Hamdi case so far, but here's a tentative thought (subject to revision as I read the other cases and rethink the matter) — two significant facts in this case are that Justice Scalia voted against the government, and Justice Breyer voted (partly) in favor of the government.
          This is because these votes may well change the political dynamics within the conservative and liberal movements. I know there are quite a few conservative lawyers and policy wonks who are uneasy (whether rightly or wrongly) with broad assertions of military powers even during wartime. And I'm pretty sure there are quite a few liberal lawyers and policy wonks who are uneasy (again, whether rightly or wrongly) with what they see as a September 10th attitude towards civil rights during wartime.
        Stuart Benjamin offers Breyer v. Scalia, Pragmatism v. Formalism.
          What's interesting here is that this split is not as unusual as some might imagine. Yes, this court is split 5-4, along conservative/liberal lines, in many cases (think Bush v. Gore). But in some notable cases it has been split 5-4 along formalist/pragmatist lines. One of the biggest cases of the last few years is Apprendi v. New Jersey, in which the Supreme Court held that juries, not judges, must impose increases in penalties for a crime beyond the prescribed statutory maximum. That case was 5-4, with Stevens, Scalia, Souter, Thomas and Ginsburg posed against Rehnquist, O'Connor, Kennedy, and Breyer. The exact same lineup occurred in Blakely v. Washington, which came down last Thursday and imperils the federal sentencing guidelines. As for Hamdi, the reason that the five formalists (Scalia, Stevens, Souter, Thomas, Ginsburg) didn't win is that one of them (Thomas) found his formalism taking him in the opposite direction — he alone adopted the government's position, across the board.
        Eugene Volokh posts Does federal law bar military detention of U.S. citizens?
          Five of the Justices in Hamdi -- Justice O'Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer in the plurality, plus Justice Thomas in his dissenting opinion -- took the view that the [the post-September 11 Authorization for Use of Military Force] allowed military detention at least of citizens who are "'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there." That's why Hamdi lost on the statutory question.
          But what about Padilla, who is alleged to be an enemy combatant, but who apparently wasn't engaged in an armed conflict against the United States in Afghanistan? Well, four of the Justices in Hamdi -- Justices Souter and Ginsburg, who partially concurred in Hamdi, and Justices Scalia and Stevens, who dissented -- disagree with the view I give above, and think that the Authorization doesn't apply even to Hamdi. It follows that they think it shouldn't apply to Padilla, either.
        Jack Balkin posts Hamdi can be held as illegal combatant but must have access to courts.
        And More on the detention cases.
          Institutionally speaking, the Court is reasserting its authority in the face of an Administration that repeatedly said it was irrelevant. Generally speaking, this is not a good thing to tell courts. If you tell courts they have no jurisdiction to oversee Executive misbehavior, they will strain to find that they have the formal ability to do so, even if they don't exercise it in practice.
          The plurality opinion in Hamdi is clearly a pragmatic compromise. Justice O'Connor strains to find Congressional authorization for detaining enemy combatants (Justice Souter's concurrence explains why the argument is strained), so that she can then hold that some process is due-- essentially the right to be heard and present your own evidence to prove your own innocence and the right to rebut assertions from the state. Hamdi also has a right to an attorney on remand, but the plurality stops short of saying that enemy combatants always have a right to an attorney. In dicta, O'Connor states that the Executive may provide due process through military tribunals immediately after a person is captured, or, in a subsequent habeas proceedings in which the burden is on the accused to show that he or she is not an enemy combatant. This is unnecessary to the decision of the case but it's clearly advice to lower courts. The advice is worrisome precisely because it's unnecessary. Michael Froomkin has posted Today's Trifecta--What Does it All Mean? (Pt. I: Hamdi).
        In summary, eight members of the Court think Hamdi (and, by implication, Padilla) is at least entitled to a hearing, with four saying he should be sprung straight away, albeit two on statutory and two on constitutional grounds. The poor district court doesn’t get very clear directions about what process is due on remand. Four Justices in plurality say it should be a uniquely crabbed process. Two others would give more, two don’t really address it. One says no process is due. And, the plurality’s views are a floor, not a ceiling, and the opinion admits more process if the circumstances and dictates of witness availability and national security permit.
        It could be a procedural donnybrook below…
      --Scrivener's Error. Room 101. I. Civil Procedure. II. Government Power. III. Military Necessity.
        The decisions in the Detainee Trilogy depend almost entirely upon their procedural contexts; the only serious considerations of the merits were in dissenting (or mixed concurring-and-dissenting) opinions. Thus, the first two segments of this discussion concentrated on procedural aspects: venue and jurisdiction, and the scope of the habeas corpus power. That brings us to the shrivelled third leg: the substantive justification for detention.
      --New York Times. Supreme Court Affirms Detainees' Right to Use Courts.
        The Supreme Court ruled today that people being held by the United States as enemy combatants can challenge their detention in American courts — the court's most important statement in decades on the balance between personal liberties and national security.
      --Washington Post. Detainees, Combatants Can Challenge Detentions. Justices Rule Padilla Must Refile Suit.
      --Los Angeles Times.
        Justices: Detainees Can Have Court Hearings (AP Story).
          The Supreme Court dealt a setback to the Bush administration's war against terrorism today, ruling that both U.S. citizens and foreign nationals seized as potential terrorists can challenge their treatment in U.S. courts.
          The court refused to endorse a central claim of the White House since the terrorist attacks of Sept. 11 2001: That the government has authority to seize and detain suspected terrorists or their protectors and indefinitely deny access to courts or lawyers while interrogating them.
        Justices: Detainees Can Have Court Hearings (David Savage)
          The Supreme Court rejected the Bush administration's claim today that the war on terrorism gives the president, as commander in chief, the unchecked power to imprison "enemy combatants," both at home and abroad.
          Instead, the justices said that the Constitution gives all those held in U.S.-controlled territory a right to plead their innocence before a judge.
      --NPR. Nina Totenberg.
      --BBC. Britons welcome Guantanamo ruling.
        Two British men released from Guantanamo Bay have welcomed a US court decision to allow detainees access to the US legal system. But Shasiq Rasul and Asif Iqbal warned it was unlikely prisoners held in the Cuban camp would be told the news.
      --MSNBC. Historic court rulings hold political fodder.
        In the midst of a hotly contested presidential election, the U.S. Supreme Court has handed President Bush a historic defeat in the cases of Yaser Hamdi, an American citizen captured in Afghanistan but now being held in the Navy brig in Charleston, S.C., and alleged al-Qaida and Taliban personnel held at the U.S. Naval Base in Guantanamo Bay in Cuba. With its decisions in the two cases and that of another American citizen and alleged al-Qaida member, Jose Padilla, the Supreme Court has opened the way to much more legal battling. And the justices have added to Bush’s difficulties at a time when opinion polls show him in an atypically weak position for a wartime leader seeking a second term.
      --CBC. Terrorism suspects have rights, U.S. court rules.
        The U.S. Supreme Court handed down mixed decisions Monday on the rights of people captured in the Bush administration's war on terrorism.
        Ruling on two separate cases, the country's top court said the U.S. government has the power to hold American citizens and foreign nationals without charges or trial, but that prisoners can use the U.S. courts to challenge their treatment.
      --Christian Science Monitor. Terror detainees win right to sue.
        The court's actions constitute a major victory for civil libertarians and human rights advocates who have denounced the president's antiterror tactics as a substantial erosion of fundamental American freedoms.

Saturday, June 26, 2004
The Final Seven For information on the final seven cases on the Supreme Court's docket, the place to go is On the Docket. The big three terrorism/detention/due-process cases are Rasul, Padilla, and Hamadi.
And for more, got to the excellent SCOTUS Blog, especially here and here.

Felten on the Future of Filesharing If you have an interest in IP or cyberlaw, you will want to read Ed Felten's post on the future of filesharing. Here is a taste:
    From a technology standpoint, the future of filesharing will involve co-evolution between filesharing technology on one side, and anti-copying and anti-filesharing technology on the other. By "co-evolution" I mean that whenever one side finds a successful tactic, the other side will evolve to address that tactic, so that each side catalyzes the evolution of the other side's technology. The resulting arms race favors the filesharing side, for two reasons. First, the filesharing side can probably adapt faster than the anti-filesharing side; and speed is important in this kind of move-countermove game. Second, the defensive technologies that filesharing systems are likely to adapt are the same defensive technologies used in ordinary commercial distributed systems (end-to-end encryption, anti-denial of service tactics, reputation systems, etc.), so the filesharing side can benefit from the enormous existing R&D efforts on defensive technologies.

Welcome to the Blogosphere . . . to, a group blog (or webzine?) sponsored by the Manhattan Institute.

Legal Theory Bookworm This week, the Legal Theory Bookworm recommends The Spirit of Liberty by Learned Hand. This book requires no blurb or words of praise. Instead, I should like to simply include a quotation from Hand's A Personal Confession written in 1958:
    I have often said to myself, "What do you mean by interpreting." Here are the word used; but they have all kinds of fringes, as James used to call it. The occasion that has arisent wasn't actually provided for; the terms are inevitably equivocal and ambiguous. What do you mean by "what they were intended for"? Perhaps you won't agree, but the best I can make of it is that, as far as you can, you try to put yourself--imaginatively to project yourself--into the position (resuciate you might say) of the authors of those words at the time they uttered them. What would they have said had they been faced with the present occasion? Well, I know people who say this is a fantastic unreality, yet certainly in the case of statutes (I am not going to get into the Constitution) you really must ask yourself what they would have said.
We all read Hand's opinions, but his essays and speeches are wonderful reading. Don't miss this.

Download of the Week This week, the Download of the Week is The Unitary Executive in the Modern Era, 1945-2001 by Christopher S. Yoo and Steven G. Calabresi (Vanderbilt University - School of Law and Northwestern University - School of Law). Here is the abstract:
    The impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the "executive by committee" employed by the Articles of the Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a "constitutional moment" that ratified major changes in the distribution of power within the federal government. Still others have argued that the increased policymaking functions of the modern administrative state justify permitting Congress to impose greater limits on presidential control over the execution of the law. To date, however, a complete assessment of the historical record has yet to appear. This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1945 and 2001, beginning with the Administration of Harry Truman, ending with the Administration of Bill Clinton, and paying particular attention to the Clinton Impeachment. The record reveals that these Presidents consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.
Download it while its hot!

SSRN Top Recent Downloads The Social Science Research Network compiles lists of top ten downloads by subject matter. (Click on the category name for the full list of the top ten papers by number of downloads in the past 60 days.) Here are categories and selected papers of interest to legal theorists:

Friday, June 25, 2004
Blunkett Watch If you are concerned about the erosion of civil liberties, you will surely want to check out BlunkettWatch, maintained by by John Gardner, who admits to being an airy-fairy civil libertarian and is also the Professor of Jurisprudence at Oxford.

Constitutive Commitments Cass Sunstein & Randy Barnett (1. Sunstein, 2. Barnett, 3. Sunstein, 4. Barnett) are engaged in an interesting exchange on Sunstein's idea of "constitutive commitments," something more than mere policies and less than binding constitutional law. This is all in the context of Sunstein's claim that Roosevelt's "Second Bill of Rights":
    The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation; The right to earn enough to provide adequate food and clothing and recreation; The right of every farmer to raise and sell his products at a return which will give him and his family a decent living; The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; The right of every family to a decent home; The right to adequate medical care and the opportunity to achieve and enjoy good health; The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; The right to a good education.
Sunstein's claim is that we (as a polity) have a constitutive commitment to these rights. And what is that?
    It would be nice to have a clear sense of necessary and sufficient conditions for constitutive commitments, but lacking these, let's make a rough first cut: A constitutive commitment is in place if over a significant period of time, a presidential candidate could not seriously question that commitment without essentially disqualifying himself. This means that the commitment must have both wide and deep support (and not just among academics, elites, or the media; a strong political majority is needed). We can imagine hard intermediate cases and the definition leaves ambiguities; but the prohibition on racial discrimination in employment, the antitrust laws, and some kind of social security program are evident examples -- and so too, I think, with a ban on the nationalization of industries and on federal taxes above a certain rate (eg Kennedy-era levels). Any nation will have some constitutive commitments that some reasonable people will reject; and reasonable people sometimes get those commitments to change over time.
Very interesting! I should think, however, that Sunstein hasn't really taken a "rough" cut at the criteria for "constitutive commitments," but rather has come up with a rough and ready test for their existence. In other words, the presidential disqualification test provides imperfect evidence for the existence vel non of a constitutive commitment. Why? The presidential disqualification test is conceptually mismatched to the idea of a "constitutive commitment." What would disqualify one as a serious Presidential candidate can depend on many things, only some of which might properly be called "constitutive" or "commitments." For example, my guess is that advocacy of drug legalization would pretty much doom any presidential candidate, but it simply does not follow that we have a "constitutive commitment" to criminalization of drugs. I don't think Sunstein himself would disagree. He believes that constitutive commitments must be deep (and not shallow). The point is that we really need some sense of what counts as deep for the notion of constitutive commitment to have real content. Mere duration will not do; as a shallow commitment can persist over time. It seems to me that the criterion for depth is likely to involve the content of the commitments and the relationship of that content to other beliefs. A constitutive commitment (in the sense that Sunstein seems to intend) is one that is conceptually entwined with other political ideals and beliefs about the nature of the political world.
One of the most interesting questions about constitutive commitments concerns how they come into being and how they change. In this respect, they are clearly quite different from both mere policies (embodied in statutes, orders, and regulations) and constitutional law (found in the written text of the constitution and the decisions of the courts). Laws come into being through more or less well-defined procedures. You can tell when a new statute has been enacted and when a constitution has been amended. "Constitutional commitments" are less definite. Of course, there may be moments when implicit and ill-defined commitments become crystallized and relatively clear: perhaps Roosevelt's speech was such a moment for basic economic rights. Such clarity is likely to be greatest when some great national event or challenge focuses national attention on a particular issue. Surely the Great Depression did focus the nation on the role of government in promoting jobs and prosperity. But as time passes, it seems likely that the crystallization will begin to erode and the content of the commitment will gradually less clear. Thus, assuming their was once a clear consensus on the commitment to (and meaning of) Roosevelt's list of economic rights, it seems likely that much of his program is now in some dispute. The commitment is both less broad and less deep than it once was. I take it, for instance, that the so-called Reagan Revolution (cemented in some sense by Clinton's welfare reform package) involved some erosion and modification of the constitutive commitments that Sunstein finds in Roosevelt's list of economic rights.
Read Barnett and Sunstein's fascinating posts.
Update: More here from Tim Sandefur.

Welcome to the Blogosphere . . . to Sentencing Law and Policy, a new blog authored by Douglas Berman (Ohio State).

Technicalities?In a New Republic Online op/ed, Dana Mulhauser takes the Supreme Court to task for deciding the Cheney energy commission case on technical grounds in a 7-2 decision. Here is a taste:
    The Cheney suit arose from the energy task force created by President Bush in 2001. The commission met in a series of private conferences and recommended that the solution to the country's energy woes was an increase in energy production. Interest groups sued under the Federal Advisory Committee Act, a 1972 law that orders committee records to be unsealed. Yesterday the Court simply sent the case back to the appeals court, with an instruction to "be mindful of the burdens imposed on the Executive Branch in any future proceedings." This comes on the heels of the Court's Pledge of Allegiance ruling, which was decided on standing grounds without regard to the merits of the case.
As C.E. Petit argues (see post below), the remand of the case on procedural grounds appears to be quite sound, and a product of lawyering error. So what is Mulhauser's position? Perhaps, Mulhauser believes that the Supreme Court should simply disregard procedural rules when it faces an important substantive issue. Perhaps, Mulhauser simply doesn't believe that procedural law is "hard law," endorsing instead the critical legal studies position, that "law is politics."
Mulhauser's core idea, that the Supreme Court should bend procedcural law, in order to facilitate its role as the final authority on all questions is one of the most pernicious in all of contemporary legal theory. The rule of law is precious and valuable; it cannot be maintained if the nation's highest court views the rules of procedures as mere instruments in the service of a policy agenda.

Friday Calendar

Kreit on Congressional Regulation of Noncommercial Activity Alex Kreit has posted Why is Congress Still Regulating Noncommercial Activity? (Harvard Journal of Law and Public Policy, Vol. 28) on SSRN. Here is the abstract:
    This essay considers the Commerce Clause broader regulatory scheme doctrine. Lower courts have adopted this doctrine, mentioned twice in United States v. Lopez, to uphold a wide range of federal noncommercial regulation from statutes that cover drug, gun, and child pornography possession to environmental and endangered species regulations. As a result, Lopez and United States v. Morrison thus far have not turned out to be the landmark cases they first seemed. Despite the central role the broader scheme doctrine has played in defining post-Lopez Commerce Clause power in lower court decisions, commentators surprisingly have overlooked it almost entirely. The one academic article to focus on the doctrine correctly argues that it creates perverse legislative incentives for Congress but makes only that limited contribution. As broader scheme cases work their way toward the Supreme Court, the oversight is especially significant. This essay provides the first thorough examination of the broader scheme doctrine, argues that the prevailing interpretation by lower courts is misguided, and proposes a new framework for analyzing broader scheme questions. The analysis reveals that lower courts have upheld noncommercial activity by mistakenly relying on Wickard v. Filburn in their interpretation of the broader scheme doctrine. Instead, the broader scheme doctrine finds its roots in cases like Maryland v. Wirtz and Hodel v. Virginia Surface Mining & Reclamation Association. I propose a new framework for analyzing broader scheme questions based on the Wirtz and Hodel enterprise theory. This framework adheres to Lopez's substantive limits against federal regulation of purely local, noncommercial activity by permitting Congress to regulate noncommercial activity only when performed as part of an economic enterprise.
I was especially interested in Kreit's analysis of Wickard v. Filburn. Here is the crucial passage:
    Lopez recognized the economic nature of the activity involved as the principle distinguishing fact of previous substantial effects cases such as Wickard.138 In particular, Lopez found that Wickard “involved economic activity in a way that the possession of a gun in a school zone does not.” This assertion is noteworthy because the Wickard Court clearly stated that the individual instance of wheat production at issue was not commercial.140
Footnote 140 reads:
    See United States v. Wickard, 317 U.S. at 128 (nothing that Filburn’s activity could be regulated “though it may not be regarded as commerce”). See also, Jesse Chopper, Taming Congress’s Power Under the Commerce Clause: What Does the Near Future Portend?, 55 ARK. L. REV. 731, 744 (2003) (noting that the Lopez majority’s observation that aggregation was only applied to economic activity was “contradicted by the Wickard Court’s analysis”).
It would seem to me that the cited passage from Wickard does not provide clear support for the proposition in text. Feeding farm-grown wheat to livestock is not itself commerce--that's what the Wickard court states. But that does not entail that feeding livestock (raised for sale) is not part of an economic activity; because of course, the wheat is a factor of production and hence is, clearly, part of an economic activity. "Commerce" was not a synonym for "economic" at the time the Wickard opinion was written; rather, the "economic activity test" that features in the new Federalism cases, Lopez and Morrison is, as far as I can tell, basically a contemporary idea.
This is a very interesting article on a very important topic. Highly recommended!

Petit on the Cheney Case C.E. Petit has a very informative post on procedural issues in the Cheney case. Here's a taste:
    [I]mportant constitutional questions—among them, the one stated by Justice Thomas—will go unanswered because the trial attorneys made three pretty basic errors in procedure. First, they didn't use other discovery devices available to create a sufficient record to even allow an opinion. . . . Second, the case never should have reached the Supreme Court because the appeal was taken too soon. An "interlocutory" appeal (one before final judgment) should be allowed only when the result of the appeal (1) turns on a pure question of law and (2) will materially advance the process of the case in the trial court. . . . Finally, and perhaps most critically, the wrong remedy was at issue.
Read the whole thing for a very persuasive analysis.

Yoo & Calabresi on the Unitary Executive Christopher S. Yoo and Steven G. Calabresi (Vanderbilt University - School of Law and Northwestern University - School of Law) have posted The Unitary Executive in the Modern Era, 1945-2001 on SSRN. Here is the abstract:
    The impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the "executive by committee" employed by the Articles of the Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a "constitutional moment" that ratified major changes in the distribution of power within the federal government. Still others have argued that the increased policymaking functions of the modern administrative state justify permitting Congress to impose greater limits on presidential control over the execution of the law. To date, however, a complete assessment of the historical record has yet to appear. This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1945 and 2001, beginning with the Administration of Harry Truman, ending with the Administration of Bill Clinton, and paying particular attention to the Clinton Impeachment. The record reveals that these Presidents consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.
Highly recommended!

Klass on Compelled Subsidization Gregory Klass has posted The Very Idea of a First Amendment Right against Compelled Subsidization on SSRN. Here is the abstract:
    On March 24, the Supreme Court granted certiorari in Veneman v. Livestock Marketing Associations, Docket No. 03-1164, which presents the question of whether mandatory assessments on beef producers used to fund generic beef advertising violate the First Amendment rights of dissenting industry members. The Court undoubtedly decided to hear the case to resolve the sharply diverging reasoning in its two earlier decisions on industry-association advertising, Glickman v. Wileman Brothers and Elliot, 521 U.S. 457 (1997), and United States v. United Foods, 533 U.S. 405 (2001). This article discusses the compelled subsidization doctrine, which holds that there is a First Amendment right not to subsidize the speech of others. The Supreme Court has considered the First Amendment rights of dissenters in the context of mandatory union dues, bar association payments, state university student fees, and industry-association advertising. This article argues that the Court has failed in these cases to formulate a clear, universally applicable test for deciding when the right against compelled subsidization is violated, and that this failure results from the lack of a coherent account of what First Amendment interests are at stake in compelled subsidization. It also recommends an alternative account of wherein the right lies, which is the danger of covert state subsidization of one side or another in public debate on contentious political or ideological issues. From this account follows a new general test: The compelled subsidization of the speech of others violates the First Amendment just when the funds collected are used to promote the message of an identifiable viewpoint or interest in debate on a controversial political or ideological issue. In addition to making specific recommendations on how Veneman should be decided, the article briefly describes the connections between the compelled subsidization doctrine and the Court's recent rulings on campaign finance regulation, particularly McConnell v. Federal Election Commission, 124 S.Ct. 619 (2003). Not only do both lines of cases raise the question of whether money is ever speech, but both also turn on the extent to which the First Amendment protects not only individual expressive rights, but the integrity of public political debate.

At & Chappe on Claim Selection by Lawyers Christian At and Nathalie Chappe (University Franche-Comte - CRESE and Université de Franche-Comté) have posted The Lawyer as a Portfolio Manager: How does the Fee System Influence on the Lawyer's Decision of Handling Legal Claim? on SSRN. Here is the abstract:
    In this article the lawyer acts as a portfolio manager. Through a portfolio analysis, we offer some insights into the widespread idea that contingency lawyers are providing a risk sharing service. We demonstrate that a lawyer paid at an hourly rate chooses a fully concentrated portfolio, whereas a contingency lawyer chooses a diversified portfolio.

Bhattacharya and Daouk on No Law Utpal Bhattacharya and Hazem Daouk (Indiana University and Cornell University - Department of Applied Economics and Management) have posted When No Law is Better Than a Good Law on SSRN. Here is the abstract:
    This paper argues, both theoretically and empirically, that sometimes no security law may be better than a good security law that is not enforced. The first part of the paper formalizes the sufficient conditions under which this happens for any law. The second part of the paper shows that a specific security law - the law prohibiting insider trading - may satisfy these conditions, which implies that our theory predicts that it is sometimes better not to have an insider trading law than to have an insider trading law but not enforce it. The third part of the paper takes this prediction to the data. We revisit the panel data set assembled by Bhattacharya and Daouk (2002), who showed that enforcement, not the mere existence, of insider trading laws reduced the cost of equity in a country. We find that the cost of equity actually rises when a country introduces an insider trading law, but does not enforce it.

Sugin on Rawls & Distributive Justice Linda Sugin (Fordham University School of Law) has posted Theories of Distributive Justice and Limitations on Taxation: What Rawls Demands from Tax Systems (Fordham Law Review, Vol. 72, 2004) on SSRN. Here is the abstract:
    In The Myth of Ownership, Liam Murphy and Thomas Nagel offer a devastating critique of traditional tax policy analysis and its partial justice orientation, and demand that taxation be evaluated as part of a broader overall scheme of economic justice. This paper, presented as part of Fordham Law School's conference on Rawls and the Law, considers how to approach tax policy in light of their analysis, and how to understand what John Rawls' theory of justice requires of a system of taxation under that approach. It argues that the connection between taxes and justice is less specific than we might hope, and that theories of justice generally do not endorse particular tax policies, but are more likely to preclude them. Rather than searching in theories of justice for required precepts of taxation, we might more fruitfully ask what constraints, if any, a particular theory of justice imposes on the tax system. By applying this approach to Rawls' ideas about taxation, his endorsement of a flat consumption-based tax, which is quite puzzling in light of much of what Rawls wrote about economic justice, can be better understood. If we read Rawls' discussion of economic justice to offer limitations, rather than mandates, then a wide variety of tax systems may be part of a just Rawlsian society, and Rawls' first principle of justice, which concerns political rights, imposes more significant limitations on systems of taxation than does his second principle, even though the second principle explicitly concerns economic rights.

Thursday, June 24, 2004
Thursday Calendar
    At Florida State University, Mark Seidenfeld, FSU College of Law, presents Why Agencies Act: Rational, Psychological and Institutional Influences on Agency Decisions to Regulate.
    At the American Enterprise Institute, War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century. Speakers include John R. Bolton, Stephen Rademaker, Jeremy Rabkin, and John Yoo.
    Reasons and Rationality continues today at ANU.

Norton on the Interesting in the Integrity of Government Expression Helen L. Norton (University of Maryland - School of Law) has posted Not for Attribution: Government's Interest in Protecting the Integrity of it's Own Expression (UC Davis Law Review, Vol. 37, pp. 1217-1350, 2004) on SSRN. Here is the abstract:
    Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of hate or heritage, Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier VIRGINIA. The Fourth Circuit was unpersuaded, holding that the logo’s exclusion violated the First Amendment. Such clashes between public and private entities' expressive claims raise a series of interesting questions. Do governmental entities have a legitimate interest in ensuring that they are not mistakenly understood as endorsing or delivering what are actually the views of private speakers? If so, what actions does the First Amendment permit them to take to protect that interest? As disputes involving these questions rise in number, courts increasingly search for guidance. Cases that appear to involve elements of both government and private speech are especially challenging given current constitutional doctrine that appears to demand a choice between one or the other. Too often, courts fail or refuse to acknowledge that government itself is speaking in a particular context, and thus has an interest in protecting the integrity of its own expression. Even those courts that acknowledge the legitimacy of government's interest in protecting its own expressive integrity too often muddy the waters by claiming to apply some sort of forum doctrine. The better framework is to understand these not as forum cases, but situations in which government itself is speaking - either on its own or jointly with a private speaker - and is thus free to protect the integrity of its own expression by protecting what is truly its own speech from being appropriated by others. For these reasons, we should think more carefully about the circumstances under which private speech may be mistakenly understood as that of the government. I suggest that government can persuade us that its efforts are not a pretext for squelching unpopular or inconvenient private speech by demonstrating that it is itself speaking and that it reasonably fears that, absent preventive action, its speech will be mistakenly perceived to endorse others' expression. Particularly helpful factors in assessing competing private and governmental claims to the same expression include the identity of the literal speaker, the reasons for governmental and private participation in the program at issue, the availability of alternative avenues for ventilating the private expression, and the effectiveness of government disclaimers or rebuttals.

Caudill & LaRue on Expert Testimony David S. Caudill and Lewis H. LaRue (Washington and Lee University - School of Law and Washington and Lee University - School of Law) have postedNon-Romantic View of Expert Testimony (Seton Hall Law Review, Vol. 35, No. 1, 2004). Here is the abstract:
    The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. Second, that focus must be accompanied by a modest view of science rather than an idealized version of its capacity to produce knowledge for law. Third, the focus on the application phase of expertise must also be accompanied by a modest view of law itself, including judges, lawyers, juries, and the evidentiary rules. It is far too easy, in the post-trilogy series of debates, to romanticize the power of science, or the virtues of the legal system, or both, and to fail to recognize their practical limitations. Romantic images of science are often bolstered by demonizations of forensic scientists, plaintiff's experts, or social science, just as romantic images of law often rely on demonizations of judges untrained in science, lawyers as overly zealous advocates, or jurors as emotional, uncritical, and confused. Thus the pragmatic emphasis on application needs to be mediated by pragmatic views of science and law. Fortunately, the pragmatic aspects of science and law-which we associate with their local, social, rhetorical, and institutional features-are most visible in the focus on application. Nevertheless, in the heat of debate, the limitations of law and science often recede into the background, which results in undue attention to red herrings as well as unrealistic proposals for reform.