Legal Theory Blog
All the theory that fits!
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.
Friday, May 30, 2003
New Papers on the Net Here is the roundup:
This article sidesteps these debates over preemption and instead argues that, quite apart from whether state law is itself efficient, an anti-preemption rule of statutory construction has benefits for the national law-making process. Because of the size and heterogeneity of the population that it governs, Congress has institutional tendencies to avoid politically sensitive issues, deferring them to bureaucratic resolution and instead concentrating on constituency service. Non-federal politicians can disrupt this tendency to ignore or suppress political controversy, by enacting state laws that regulate business interests, thus provoking those interests to seek federal legislation that will preempt the state legislation. In effect, state politicians place issues on Congress' agenda by enacting state legislation. Because business groups tend to have more consistent incentives to seek preemption than anti-preemption interests have to oppose preemption, controversial regulatory issues are more likely to end up on Congress' agenda if business groups bear the burden of seeking preemption. Moreover, the interests opposing preemption tend to use publicity rather than internal congressional procedures to promote their ends. Therefore, by adopting an anti-preemption rule of construction, the courts would tend to promote more highly visible, vigorous style of public debate in Congress.
Leiter on the Hermeneutics of Suspicion Today at Oxford, Brian Leiter (Texas, Law & Philosophy) presents The Hermeneutics of Suspicion.
Thursday, May 29, 2003
Balkin on Hibbs Jack Balkin has a very good post on Nevada Department of Human Resources v. Hibbs, the Supreme Court's most recent 11th Amendment decision in which O'Connor & Rehnquist both joined the liberal/moderate wing of the Court.
Hasen on a Truce in the Confirmation Wars Check out Rick Hasen here critiquing my most entitled Confirmation Wars: Transformational Moves.
New Papers on the Net Here is the roundup:
Markel on Mercy I highly recommend Daniel Markel's paper, Against Mercy, forthcoming in the Minnesota Law Review. Here is an excerpt from the abstract:
Blogging from Rutgers: Norm Acquisition and Punishment This week I am attending the seminar on Mind, Language, and Law at Rutgers Law School in Camden--organized by Dennis Patterson Kim Ferzan . Yesterday, the speaker was Stephen Stich and among the many topics he covered was norm acquisition. Stich's hypothesis is inspired by the fact that evolutionary models of cooperative solutions to iterated Prisoner's Dilemma games all involve punishment for defection from cooperation. In particular, Stich hypothesizes that humans have a mechanisms that internalizes norms backed by an effective punishment mechanisms. Stich's particularly vivid metaphor was Pac Man. Stich imagines that humans are lot Pac Man, racing around the social world. Whenever they see a punishment enforced norm, they swallow it, more or less willy nilly. Stich is a careful (if enthusiastic thinker), so he recognizes a number of obvious problems with this view. For example, if we make the reasonable assumption that norms are internalized by humans who never actually observed punishments, then the question arises: how (precisely) does punishment play a role in norm acquisition. Let’s assume that Stich is able to answer this question. His theory, if true, may have some interesting implications for legal theory. Here are some possible implications that might be explored:
--Various informal social sanctions may be important to norm creation, and the law may interact in various ways with such sanctions. For example, legal rules might prohibit or enable such sanctioning behaviors.
--Some economic views of law assume that preferences are independent of legal rules, but Stich’s theory, if true, would show that this assumption is systematically false.
Duff A book by Antony Duff is something to be celebrated. His Punishment, Communication, and Community is new in paperback from Oxford University Press. From the abstract:
Wednesday, May 28, 2003
New Papers on the Net Here is the roundup:
Peter Swire (Ohio State) posts Efficient Confidentiality for Privacy, Security, and Confidential Business Information.
Theodore Eisenberg (Cornell) and Elizabeth Hill (New York University) offer Employment Arbitration and Litigation: An Empirical Comparison.
Heinrich Schneider uploads The Constitution Debate, forthcoming in European Integration online Papers.
Luis Garicano and Thomas Hubbard (Chicago, Business) post Specialization, Firms, and Markets: The Division of Labor Within and Between Law Firms.
Bronwyn Hall (UC Berkeley) posts Business Method Patents, Innovation, and Policy.
Peter Alldridge (Cardiff, Business) offers Smuggling, Confiscation and Forfeiture, forthcoming in the Modern Law Review.
Nari Lee (University of Turku) uploads The Patent Subject Matter Reconfiguration and the Emergence of Proprietarian Norms - The Patent Eligibility of the Business Methods.
Laura Hoyano (Oxford) posts Misconceptions about Wrongful Conception, forthcoming in the Modern Law Review.
Yariv Brauner (New York University) offers Taxing Cross-Border M&A in a Globalizing World.
Robert Merges (UC Berkeley) uploads The Uninvited Guest: Patents on Wall Street.
Mark Drumbl (Washington and Lee) posts several papers:
Confirmation Wars: Transformational Moves
The First Mover Problem But who will have the confidence to make the first move? There is a problem of trust and confidence that is difficult to solve given the way the judicial selection problem is currently framed. Suppose President Bush were to make the move that Taylor suggests and promise to nominate candidates who would preserve the ideological balance of the current Supreme Court. Would this be sufficient to restore mutual confidence? Imagine that the President does indeed consult with Senate Democrats on various possible nominees for a Supreme Court vacancy. Lurking in the background of such consultations will be the hot button issues that Taylor identifies (abortion, affirmative action, campaign finance, etc.). What if Rehnquist resigns? Will the Democrats agree to confirm an equally conservative nominee without a fight? Such a decision will not be popular with the Democratic base. Will Democrats trust President Bush to carry out his promise when (and if) Bush is given the chance to nominate a replacement for a more moderate Justice? This latter question is given additional urgency if we contemplate what it would mean to preserve the ideological balance of the Court in the event that Justice O'Connor were to resign. O'Connor is quite conservative on most issues, but moderate on a few, hot-button, issues. How could the Democrats trust any candidate who share O'Connor's general outlook to vote as O'Connor did in Casey to preserve the core of Roe v. Wade? Democrats will evaluate this issue with historical experience in mind--think Blackmun and Souter. But how could President Bush appoint any replacement for O'Connor who would inspire confidence by Democrats? Such a nominee would inevitably reject many of O'Connor's conservative beliefs and swing the balance of the Court to the left on many issues where O'Connor is the swing vote. No set of replacements for O'Connor and Rehnquist is likely to preserve the ideological balance of the Court. Justices are too unpredictable if they are not "extremists," or they are too "extreme" (either to the left or to the right) if their votes are predictable.
The Fundamental Assumption Both Democrats and Republicans seem to share a fundamental assumption about the current confirmation war. That fundamental assumption is that judging is inherently political in nature. If we concieve of the judiciary as a third political branch of government, with the authority to use the powers of judicial review and constitutional and statutory interpretation to achieve a political agenda, then control of the judicial branch is the ultimate political prize. The reason that neither party can trust the other is that the stakes are too high. Because judges are elected for life terms, the power to appoint young, highly political judges who constitute a majority of the United States Supreme Court is roughly equivalent in importance to gaining an electoral lock on the Presidency and the Congress for a period of one or two decades. When the stakes are that high, then two conclusions follow. First, if one party believes it has the power to control the Supreme Court it will be loathe to forgo that opportunity voluntarily. Second, for the same reason, neither party can trust the other to reciprocate at the next changing of the guard.
A Truly Radical Move A truly radical move is one that would call the fundamental assumption into question. That is, a truly radical move would be for either the Republicans or the Democrats to suggest that judges should be selected on the basis of their possession of the judicial virtues, rather than their political ideology. Such a move would not be pleasant for either party. Judges who are committed to the rule of law are likely to offend both Democrats and Republicans. For example, a judge who takes precedent seriously would be committed to both Hans v. Louisiana and Roe v. Wade, disappointing both the right and the left. But the point of nominating and confirming neoformalist judges is not ideological balance. The point of a radical move to restore the rule of law is that it offers both parties a principled basis for agreement. So long as we think of judges as politicians with life tenure, a truce in the confirmation wars will be difficult to negotiate.
Hooker on Fairness at Oxford Brad Hooker presents a lecture with the sparse title Fairness at Oxford today.
New from Oxford University Press Simon Chesterman new book Just War or Just Peace? Humanitarian Intervention and International Law is due from Oxford University Press.
Tuesday, May 27, 2003
Confrimation Wars Department: Lott Endorses Nuclear Option Marcia Oddi of the Indiana Law Blog brought a very interesting article in the Clarion-Ledger to my attention. Here is an excerpt:
Confirmation Wars Department: Bernstein on Pickering Nomination David Bernstein comments on the Pickering nomination here.
Blogging from Rutgers Today, I will blogging intermitently from the Seminar on Mind, Language, and Law organized by Dennis Patterson and Kimberly Ferzan at Rutgers. Today’s speaker is the distinguished philosopher Brian McLaughlin, from the Philosophy faculty at Rutgers.
Workshops Today Here is the roundup:
At Oxford, Caroline Shackleford presents Mediation of the horizontal application of the South African bill of rights - an instance of power-sharing.
New Alexy from Oxford Robert Alexy's The Argument from Injustice: A Reply to Legal Positivism has been published by Oxford. From the abstract:
Monday, May 26, 2003
Anderson on the Law of War Kenneth Anderson (American University) just posted Who Owns the Rules of War? The War in Iraq Demands a Rethinking of the International Rules of Conduct on SSRN. Here is the abstract:
New Papers on the Net Here is the roundup:
Bruno Frey and Alois Stutzer (Zurich, Institute for Empirical Research in Economics) upload Testing Theories of Happiness. From the abstract:
Paula Cody and Kay Harrison (Government of New Zealand) post The Treaty Settlement Process in New Zealand.
Douglas Kysar (Cornell) posts The Expectations of Consumers, forthcoming in the Columbia Law Review. From the abstract:
Catching Up Department Princeton University Press recently published Law's Dream of a Common Knowledge by Mariana Valverde. From the abstract:
Sunday, May 25, 2003
Hasen on the Realpolitik of Filibustering Judicial Confirmation I posted earlier today on the strategic implications of a Republic move to change Rule 22 in order end the filibuster of Estrada and Owen. Perhaps my most important point is that Supreme Court vacancies change the political equation. Rick Hasen adds some very nice points here. Importantly, he notes, "The conventional thinking in the campaign finance world is that Rehnquist's vote is the key to upholding many features of the BCRA."
Sandefur on Judicial Civil Disobedience Tim Sandefur has a good post on Judge Pregerson and the competing claims of conscience and equity here.
Symposium Issue of Ethics on G.E. Moore The issue is available online, with papers by Christopher Heath Wellman, Stephen Darwall, Connie S. Rosati, Nicholas L. Sturgeon, Frank Jackson, Michael Smith, Thomas Hurka, Jonathan Dancy, and Donald H. Regan.
The Senate's Constitutional Duty But they go on to state:
The Realpolitik of the Filibuster Binder and Smith then go to provide a nice analysis of the political consequences of a Republican effort to change the filibuster by one of the parliamentary maneouvers that can circumvent Rule 22's requirement of 2/3rds vote to close debate on a rule change:
The Politics of Going Nuclear When Senator Byrd pioneered the use of the so-called nuclear option during his tenure as Senate Majority leader, his tactics were almost completely invisible to the public and the general media. The actual technique would be a point of order followed by a nondebatable ruling by the chair--sustained. Then the rule change could be adopted by majority vote. And then it would be applied, and a majority would confirm Estrada, Owen, and the rest. Of course, the Democrats have weapons left in their arsenal. They could shut the Senate down by calling for a roll call vote on every matter put before the Senate for unanimous consent. But is it so clear that the Republicans would be seen as the villains if the Democrats shut down the Senate? By way of analogy to the Republican shut down of government over the budget impasse during the Clinton administratin, it seems far more likely that the political losers would be the Democrats. But this does not mean that the nuclear option is politically viable. The decisions to employ Senator Byrd's tactics will not come easy to the Republicans--in part, because Republicans resented those very tactics when they were in the minority.
Waiting for the Supreme Court Vacancies Indeed, it is not clear that the Republican caucus is ready to go nuclear now. Some members of the Republican caucus want to wait until the Democrats expand the filibuster, either to a third lower-court nominee or to a Supreme Court nominee (in the fall?). But if the Republicans wait until there is a Bush nominee to the Supreme Court, the political landscape will change again. The Democratic party has attempted to galvanize its base on the basis of the importance of judicial nominations to the Courts of Appeals and the District Courts, and the Republicans have done the same. But neither party has really succeeded in this effort. The truth is that it will take a Supreme Court vacancy to bring this issue to public consciousness. If there are two vacancies (Rehnquist and O'Connor) are the most likely, then the fate of Roe v. Wade will be on the line. This will give the Democrats considerable political cover for extreme action in the event of a Republican nuclear option, and vice versa. But at that point, the game will be being played for very high stakes indeed.
Strategic Implications So what are the strategic implications? My take is that if the Republican leadership decides to go for a change in the filibuster rule, it would be in their interest to do so as soon as possible--before the Supreme Court is on the table in popular perception. Democrats would be wise to delay this move by any technique available--including an offer to faciliate confirmation of one or more of the controversial lower court nominees. Who knows what decisions are being made behind closed doors? Perhaps something dramatic will happen in the next few days or weeks. But if the status quo remains in place and there are two Supreme Court resignations in July, we are headed for interesting times. For more, see Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy.
Hasen: Weighing in on the "Buying Time" Controversy Lawprof and political scientist Rick Hasen weighs in on the controversy over the "Buying Time" study re sham issue advocacy ads. This issue is important in the context of the Supreme Court's review of the three-judge District Court decision, upholding parts and striking down parts of the McCain-Feingold campaign finance legislation.
Saturday, May 24, 2003
RSS Feed Updated to Blog Matrix At Chris Bertram's suggestion, I have updated my RSS feed to Blog Matrix. The link is available on the left sidebar towards the top.
Manheim and Solum on the Economics of Domain Name Policy Karl Manheim (Loyola Marymount) and Lawrence Solum (Loyola Marymount and University of San Diego) have posted An Economic Analysis of Domain Name Policy on SSRN. Here is the abstract:
New Papers on the Net Here is the roundup:
Friday, May 23, 2003
Today My father, Clayton Lawrence Solum, passed away recently, and his memorial service will be held later today. I miss him more than I can say. Regular blogging will resume soon, but in the meantime, here are some recent posts of which I am especially proud:
Breaking the Deadlock: Reflections on the Confirmation Wars
Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts
Thursday, May 22, 2003
Estrada's Answer to the Roe Question I just read Toobin's New Yorker piece on the confirmation wars--time sensitive link here (thank you Howard Bashman). Here are reactions by Adam White and by Bashman. What struck me is the following passage:
Posner on Plargarism It's fraud, not theft. Here.
New Papers on the Net Here is today's roundup:
The Other Go to Chris Bertram's marvelous Junius, just because it is so great, and you might check out a moving quote from Buber, which is posted on Junius here.
Straussians I've mostly ignored the controversy over the influence of Leo Strauss on neocons, but Antidotal has a very nice post.
Utilitarianism Reborn Department Philosophy.com has a very thoughtful comment on economist John Quiggan's recent claim that utilitarianism has no serious competitions as a public philosophy. My comments were here and here.
Hasen on the Filibuster Check out Rick Hasen's commentary on a recent Norm Ornstein op/ed on the filubster of judicial nominees. The central issue discussed by Ornstein is the question whether the entrenchment of the filibuster is unconstitutional. This questions is, in my opinion, a red herring. The filibuster is not entrenched beyond change by majority vote--because a ruling from the chair that Senate Rule 22 does not apply to itself (or does not apply to itself in executive session or some other roughly equivalent ruling) can be sustained by a simple majority vote. There is a constitutional question: does the Senate have a duty to provide advice and consent within a reasonable time? And that question is a no brainer: of course it does. But is the Senate likely to fulfill that duty when the majority wishes to obstruct the President? Not unless the President were willing to use recess appointments to force the Senate's hand. But our current situation involves minority obstruction, and that cannot possibly be unconsitutional--because the minority only can obstruct with the tacit consent of the majority.
Wednesday, May 21, 2003
Welcome to the Blogosphere To MAIZE-N-BLUE BOOK, a blawg by a University of Michigan law student.
Falk on High Politics Reacting to my post from this past Sunday, A Neoformalist Manifesto, Economist Jonathan Falk writes:
The problem, of course, is twofold. First, judges are impatient and unwilling to wait for the fullness of time to justify their views. (I ignore the substantial number of times when the fullness of time rejects their views.) Second is the problem that judges are expected to do justice in the case before them. It seems unsatisfactory to say to Roe, "Well, I wish you could have an abortion, and a proper political system which recognized your liberty should allow you to have an abortion, but my hands are tied." After all, it seems to be such a short step from the "should" in the previous sentence to "will," given that the judge has the power to make "should" into "will." But it isn't. What is really needed here is another judgely virtue which doesn't make your list: humility -- that even beyond stare decisis, there are decisions that are not theirs to make.
Shavell on the Foundations of Economic Analysis of Law Steven Shavell (Harvard) has posted several chapters from his new book, Foundations of Economic Analysis of Law (Harvard University Press, 2003), on SSRN. Here are the links:
Economic Analysis of the General Structure of the Law
Economic Analysis of Public Law Enforcement and Criminal Law
Economic Analysis of Litigation and the Legal Process
Economic Analysis of Contract Law
Economic Analysis of Property Law
Economic Analysis of Accident Law
New Papers on the Net Here is the roundup:
Kmiec on the Filibuster Doug Kmiec has an L.A. Times op/ed entitled A Catch in Senate Clogs Judicial Pipeline. Here is a taste:
That the Senate has disregarded this ancient precept and is operating outside the Constitution gives the freshmen a chance to set things right. It's not complicated. Have the same majority favoring Estrada pass a rule amendment restoring the right of a simple majority to close debate on all judicial nominations. If an objection or point of order is raised in favor of the unrepresentative (and unadopted) 60/67-vote rules, the presiding officer should overrule the objection, reminding the objectors that a majority of all elected senators must retain at least one chance in every Congress to amend its rules.
Tuesday, May 20, 2003
Fear and Loathing in New Haven
Neoformalism versus High Politics . . . and that reminds me that I need to reply to the latest post by Jack Balkin, the Neo of contemporary legal theory. Balkin is one of the mater tacticians of legal argument--he always has a move, a distinction, an argument, a slide, a theory. Our exchange grew out of a column by Edward Lazarus on the virtue of judicial integrity. Although quite critical of Lazarus's critique of a dissenting opinion by Alex Kozinski, my post, Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski, argued that the virtue of justice is essential to judicial integrity and that this virtue requires fidelity to law--following the rules laid down. To cash out the notion of fidelity to law, I gestured toward a neoformalist theory of constitutional adjudication that emphasized precedent, text, structure, and history (in that order) as the guideposts for the decision of constitutional cases. Jack Balkin responded in a post entitled Good Judging and "Following the Rules Laid Down.", taking me to task for the implications of neoformalism with respect to the Supreme Court's equal-protection gender-discrimination jurisprudence. Jack argued that these cases could not be justified by the precedents, the text of the equal protection clause, or by the original meaning of the Constitution. They could only be justified by a picture of constitutional interpretation that makes "high politics" a legitimate basis for constitutional decision. Nonetheless, Balkin argued, high politics is law. I countered in a post titled A Neoformalist Manifesto, elaborating with a fuller sketch of a neoformalist theory of constitutional adjudication and arguing that high political constitutional decision making would undermine the rule of law. Balkin has now replied in a post entitled Good Judging and "Following the Rules Laid Down," Part II. So now it’s my turn.
First Interlude Northbound on Interstate 15, North of Barstow. Before dusk. There it is on the left. Calico. A ghost town. And today, of all days, I am thinking of ghosts. Memories flash. I'm a small boy exploring a ghost town with my father. I am hunting for hidden gold and watching out for the ghosts. I blink and I'm back on the Interstate, but the ghosts are still with me.
Constitutional History and the Ghosts of Theories Past The ghosts of constitutional history are still with us. Contemporary jurisprudence is haunted by Lochner and the mythical switch in time that saved nine. By footnote four and Brown v. Board of Education. By Henry Hart and Alexander Bickel. By Miranda and Baker v. Carr. By Griswold and Roe. So much history. How are we to reconcile the New Deal critique of the Supreme Court with the great decisions of the Warren and Burger Courts? Why is Lochner wrong and Roe right? Why defer to Congress on issues of federalism but not on the freedom of speech? Theories come and go. John Hart Ely's Democracy and Distrust. Laurence Tribe's multi modeled American Constitutional Law. Ronald Dworkin's Forum of Principle. Bruce Ackerman's We the People. Sandy Levinson and Jack Balkin's High Politics. Much changes, but some things stay the same. Paul Brest inters originalism in The Misconceived Quest for the Original Understanding. Everyone agrees that Lochner was wrongly decided. Warren gives way to Burger gives way to Rehnquist. And we are still at it, but the game has changed. Originalism rises from the ashes, and serious scholars write in defense of Lochner. Lopez and Morrison. And then there is Bush v. Gore. So many ghosts.
Second Interlude Baker, California. Dusk. Baker is a dry desert town, which has only one claim to fame--the world's tallest thermometer. I am at an intersection. I could turn left. I look down the road. Lot's of folks have stopped at the Denny's. I could turn right. Big crowds at Bun Boy and the Mad Greek. Which way? And then I see another way. What looked like a driveway is a narrow street . . . no, a highway, California 127, the road to Death Valley. I decide--neither left nor right. I leave the bright lights and crowded restaurants behind and proceed through the intersection, straight ahead. In a just a few minutes, I am utterly alone.
The Case Against Neoformalism In his most recent post, Balkin makes the normative case against neoformalism. Last time, Balkin used the Supreme Court's gender-discrimination equal-protection decisions as his normative club, arguing that these decisions were inconsistent with the precedents, the text, and the history, and therefore could only be justified by accepting that constitutional law is high politics. I was forced to bite the bullet. Yes, gender equality is important, but no, judicial fiat wasn't the only way to get there. Now Balkin steps up his attack. Here are his moves:
The Tender Mercies of Legislation Now comes Balkin's real argument. Because it is completely fair for Balkin to ask, "What if your theory had been in place forty years ago? What then?" This is the way he puts it:
Balkin's Ingenious Argument But then it hits me. Balkin's argument rests on a very clever rhetorical trick. Balkin and I are debating constitutional theories: High Politics versus Neoformalism. Balkin's argument is that high politics guarantees outcomes that seem highly desirable (gender equality, racial equality, and all the rest), whereas neoformalism must rely on the tender mercies of the political process. His evidence is that his theory endorses the methods and outcomes reached by the Warren and Burger Courts, whereas my theory does not. Balkin concedes political processes might have reached these same results through ordinary legislation or constitutional amendment, but, . . . and this is the crucial move, so watch carefully . . . but that is just too risky--because ordinary politics might fail. Who knows what would have happened if the Warren Court hadn't pursued the agenda of high politics? But this argument is a sham. It is audacious but atrocious. Because there was no guarantee that high political judging would produce the results that it did. It was an accident of history that Earl Warren was appointed Chief Justice. And that Bill Douglas was already on the Court. And that Eisenhower appointed William Brennan. And that Kennedy rather than Nixon won (or stole) the razor-close election of 1960. Balkin is comparing our ex post knowledge of how the Warren and Burger courts turned out with a hypothetical ex ante assessment of how things might have gone if the Warren Court had operated on the basis of a neoformalist constitutional methodology. And when Balkin makes the comparison, he assumes certainty for the ex post evaluation and notes the lack of certainty from the ex ante perspective. In other words, he is playing with a loaded deck.
And here is the counter move that sinks Balkin's argument. So let's make another comparison, this time ex ante to ex ante. It is 2003. We have an ideologically conservative Supreme Court--some would say the majority of the Court is on the extreme right. Suppose you share Jack Balkin's politics and you have a magic wand. You can wave it up and down, and all nine justices will become true believers in the high politics theory of constitutional interpretation, but they will retain their own political orientations. Rehnquist, Scalia, Thomas, Kennedy, and O'Connor will all become true believers in the proposition that they ought to decide cases in accord with their high political ideology. Or you can wave your magic wand from side to side, and all nine Justices will become neoformalists--looking first to precedent, then to text, and finally to historical evidence of original meaning. Which way would you wave? I know, I know. This isn't a fair comparison either. And that is precisely the point--the glory point. Neither Balkin's comparison or mine provides a meaningful comparison of the long-run effect of adherence to our respective constitutional theories. A meaningful comparison can't start with a jury rigged description of particular historical circumstances. If we are going to ask the question, "which constitutional theory will produce better results?," we need to ask that question over the long haul, not at a particular point in time. Once we reframe the question in this way, it becomes clear that our best evidence is to be gleaned from comparative constitutional practice. When we compare our constitutional system with comparable polities, the United Kingdom, Canada before and after the Charter, and so forth, then we can see that Balkin's argument is quite simply a colossal failure. One just can't make out the case that realist constitutional jurisprudence is essential to the realization of human liberty and equality. Moreover, if we look at the long run of American constitutional history, it is very difficult to make out the argument that federal judges or Justices of the Supreme Court are reliable. Indeed, Balkin's own argument shows that this is not the case. Balkin's rhetorically clever argument against neoformalism began with the premise that Supreme Court Justices before the Warren Court had made bad decisions that would have bound the Warren Court if it had adopted a neoformalist methodology. In other words, pre-Warren, we were at the tender mercies of a Supreme Court whose high politics provided no guarantees of liberty or equality--at least according to Balkin. Thus, Balkin's own premise shows that over the long haul, putting the awesome power of ideological judging in the hands of Supreme Court Justices leaves us at the tender mercy of a shift in the high political winds. I can breathe again.
Am I Having My Cake and Eating It Too Having dodged that bullet, I immediately face another. Balkin continues:
The Ratchet Balkin finds it ironic that a neoformalist would endorse a muscular version of the doctrine of stare decisis. I must confess that when I put Balkin's powerful rhetoric to the side, the irony escapes me. Of course, a legal theory constructed to realize the rule of law will place great weight upon the rules laid down. Formalism and stare decisis, like love and marriage, go together like a horse and carriage. But Balkin's objection has a flip side, which is much more serious. Of the many emails that I've received about A Neoformalist Manifesto, the most critical have come from the right, and they have emphasized the ratchet. Most of you already know about the ratchet, but for those don't, here's the way the argument goes. When realists rule the roost (i.e. have a majority on the Supreme Court), they make realist decisions--shaping the constitution around their personal political ideologies. Now suppose that a formalist majority is appointed to the Court, and that these formalists adhere to the doctrine of stare decisis. They will follow the realist decisions of the predecessors, but decide open questions of law on the basis of the constitutional text and historical evidence of original meaning. Now the pendulum swings again. The realists come back in. They can overrule the formalist decisions, because they don't believe in stare decisis. If this cycle continues, we have a ratchet. Sometimes to make the point perfectly clear, people use the redundant phrase, "one way ratchet." After each realist/formalist cycle, the constitution moves further in the realists' preferred direction. There is something to the ratchet. But ultimately, this argument fails. The rule of law cannot be realized by conceiving of the practice of judging as a war--to be won by one side or the other. The rule of law requires cooperation, and cooperation requires trust. A selective doctrine of stare decisis, which enshrines the good decisions and rejects the bad ones will not foster the depoliticization of the judiciary. Quite the opposite. Such a practice is likely to reinforce the perceptions that avowedly formalist judging is really realism in disguise and that the rule of law is a flag of convenience. The rule of law requires a heavy price from both left and right. Stare decisis is on the bill, and the goods will not be delivered if the price is not paid.
Neither Left nor Right And so I find that I can turn neither left nor right. On the one hand, I find that I cannot endorse the reasoning of many of the Warren Court decisions. It is tempting. Certainly, there is cover. One can always slip on the coat of law as integrity or don the fedora of a New Deal constitutional moment. And even if one suspects that these garments are the emperor's new clothes, one can take comfort in the company one keeps. On the other hand, I cannot endorse a neoformalism that incorporates textualism and originalism but leaves out the doctrine of stare decisis. There is temptation on that path as well. There may be fewer at the party, but the companionship is all the warmer when one is a member of the brave few. Neoformalism is a lonely road. I have been going that way for a while, and if you are like me, you know that there is not much company. Balkin thinks that neoformalism is the easy path, but he does not see beyond the first curve in the road.
`Certainly,' said Alice.
`And only one for birthday presents, you know. There's glory for you!'
`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'
Is High Politics Law? Oh oh. It looks like Balkin is on to something. When Balkin says "I think that history of the practice one is arguing about counts for something. And . . . these practices are much much more flexible that Larry's model of good judging permits," he looks to be making a sound move. Indeed, he is making the kind of Wittgensteinian move that allowed H.L.A. Hart to get the whole enterprise of contemporary analytic jurisprudence off the ground. How can I say that high politics is not law? Do I really think that Miranda isn't law? And not just Miranda, but a whole hose of Warren and Burger Court decisions? But of course, that is not what I am saying. My claim wasn't that decisions made on the basis of high politics are not law. Miranda is still good law. In fact, given my view of stare decisis, it not only is law, it should remain law. If that is what Balkin's argument amount to, then it is simply nonresponsive. So what else could Balkin mean?
Is Decision on the Basis of High Politics Decision on the Basis of Law? So Balkin must be making a more ambitious claim. Perhaps he is arguing that decision on the basis of high politics is decision on the basis of law. If this is his claim, then is his argument valid? Obviously not. If we were to discover that from 1872 through 1897, the Supreme Court decided many constitutional cases on the basis of a flip of a coin, those decisions would still be law. No question about that. But would they be decisions made on the basis of law? Well, no. So are decisions on the basis of high politics decisions on the basis of law? In order for that to be the case, Balkin would need to claim that the political ideologies of Supreme Court Justices are law. But now his own argument turns against him. Because the practice is not to treat the ideologies of the justices as law. Put aside the practical problem that the various Justices have complex ideological views that do not easily sum into a single coherent whole. Even if there were something that we could call the high political ideology of the Supreme Court, it isn't law. Only those portions of the ideology that have been translated into decisions are law. OK. Perhaps that is what Balkin means? But again, no, for two reasons. First, this would mean that the first decision to embody a particular ideology was not based on law. Second, the decisions are nothing other than the precedents, and if Balkin has made anything clear it is that he is claiming that decision according to law is not limited to decision according to precedent. And so? And so, Balkin cannot make out the claim that decision on the basis of high politics is decision on the basis of law.
Is Decision According to High Politics Legitimate? But perhaps Balkin misspoke or perhaps I have misinterpreted him. Because if we look closely at his argument, we find that this is the conclusion: "A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct." A ha! Why didn't I see this before. Now I think I get what Balkin is up to. And I'm worried. Very worried. Because Balkin has just made one of the most famous (and famously slippery) moves in all of contemporary jurisprudence. This is Dworkin's Patented Triple Action Is to Ought Super Slide. Here is how it works. Step One: To understand a practice, we must take the internal point of view--looking at the practice from the inside. Step Two: Once inside, we must interpret the practice to be the best that it can be. Step Three: Having interpreted the practice from the vantage point of Step One according to the criterion provided by Step Two, it follows that the practice cannot now be regarded as illegitimate. Damn. I've come so far. I thought I had Balkin, but now, at the very end, he pulls a Dworkin on me. What I am supposed to do now. I could Raz Balkin, but there is no way to Raz someone in a blog. It takes way too long. I'm just going to have to let him get away with the Dworkin, but get around it somehow. But how?
The Implications of the Interpretive Turn So what are the implications of Balkin's interpretive turn? What happens if we accept Balkin's assertion that "A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct." Hmm. This seems to translate into, any feature of the practice of judging that is so pervasive that it accounts for much of the history of the practice is legitimate. Whoa! That has interesting implications. I can feel a reductio coming on, but that would be taking a cheap shot. Here is a more elegant piece of argumentative ju jitsu. Balkin's interpretive turn commits him to the proposition that neoformalism is legitimate if the history of the practice of constitutional adjudication includes a great deal of neoformalism. Now Balkin keeps denying that this is the case, but it takes only a moment’s reflection to realize that he couldn't really have meant that. Of course, an awful lot of the ordinary run-of-the-mill constitutional decision making (even by the Supreme Court) is neoformalist. Courts follow constitutional precedents all the time. And that means that neoformalism is, according to Balkin, a legitimate method of constitutional adjudication. Given that two methods of constitutional adjudication are "legitimate" in the sense that they are "much of the history of the practice" of constitutional adjudication, does it make sense to ask the question, should we use both of these methods or is one better than the other? Well, yes. That is a perfectly sensible question. And that brings me round to the arguments I made in A Neoformalist Manifesto, arguments that Balkin has yet to answer. The rule of law provides a very great good. High political constitutional adjudication threatens the rule of law. Neoformalism preserves it.
Coda California Highway 178, West of Shoshone. Night. I made the turn just before Shoshone--really just a crossroads and a general store. I'm on 178, driving through the hills. Random thoughts, once again. Driving to Vegas. Gonzo. Hunter S. Thompson. Fear and Loathing. Then back to Balkin. Thinking about Balkin's arguments. I am in a sea of black landscape and brilliant stars, my car goes round a bend and comes out on the other side of a hill. And there it is, the orb, hanging low and white in the sky, with that lopsided face grinning at me. I push the search button on the radio, and something extraordinary happens. The gritty alto voice of Grace Slick fills the still desert air. If you are very quiet, you can still hear her voice echoing:
When logic and proportion have fallen sloppy dead,
And the white knight is talking backward,
and the red queen's off with her head,
Remember what the dormouse said:
"Feed your head! Feed your head!"
Hasen on Lund on Bush v. Gore and Roe v. Wade Lund argues that academic criticism of Bush v. Gore when juxtaposed with endorsement of Roe v. Wade is Orwellian. Hasen begs to differ.
Goelzhauser on the Politics of Judging Goelzhauser has comments on Stuart Buck and posts on my exchange with Balkin.
Runnacles on Razzing This post cheered me up.
Buck on Constitutional Theory Stuart Buck weighs in on the Balkin's high politics approach to constitutional practice.
Marston on the Confirmation Wars Brett Marston posts on the question whether Bush's criticisms of the Senate are disingenuous.
Monday, May 19, 2003
Monday Workshop At Florida State's fine summer series, Sandy D'Alemberte does an internal workshop title The Medical School Preceptorship Model and Legal Education.
Kamm on Just War Theory Today At Oxford's Moral Philosophy Seminar today, Frances Kamm (NYU, visiting Harvard) prsents Failures of Just War Theory.
Sunday, May 18, 2003
A Neoformalist Manifesto
Neoformalism: What? Labels are tricky. "Formalism" is one of the labels that is most often used by instrumentalist critics of the idea that judging can proceed on the basis of public rules that have relatively stable and determinate meanings. Tom Grey has a very good paper entitled, "The New Formalism," that provides a marvelous but critical discussion of renaissance of formalism in contemporary American legal thought. And when I outted myself as a "formalist" on this blog in January, I titled the post Confessions of Neoformalist to distinguish my views from the "formalism" that we all "know" was impossibly simplistic and wrongheaded. By "neoformalism," I simply mean an up-to-date version of formalism that takes into account contemporary legal theory and reformulates formalist notions so as to acknowledge both American legal realism and sophisticated analytic legal philosophy--especially the important line of thought that runs through Hart-Raz-Dworkin-Finnis and many others.
Neoformalism: Why? This is a deep and important question--obviously an adequate answer is far beyond the limits of a single post on a blog, but there is a central theme that can be stated simply and concisely. Neoformalism is an attempt to craft a normative theory of judicial practice that answers to the values that we summarize with the phrase the rule of law. On the one hand, the rule of law serves a cluster of instrumental purposes. Neoformalist judging makes the law more predictable and certain--allowing individuals and firms to plan. Neoformalist judging also avoids the long-run problems that can be created by the politicization of the law. When the law becomes thoroughly politicized, it is inevitably corrupted as even the most routine lawsuits become an opportunity for rent-seeking and patronage. On the other hand, the rule of law provides an important set of protections for human liberty and basic human rights. Instrumentalism (or legal realism in its instrumentalist form) is simply not up to the task of fully realizing the very great values we associate with the rule of law. In a nutshell, instrumentalism leads to politicization and over time, the politicization of the judiciary will inevitably undermine the rule of law. I know that these arguments are impossibly sketchy, but that's the best I can do in a paragraph.
Neoformalism: How? How would a neoformalist practice of judging work? In my post on Saturday, I offered a very brief sketch. For the purposes of illustration, I will discuss only constitutional cases. I do this for two reasons. First, because widening the scope of discussion to include common-law adjudication, statutory interpretation, and administrative law would make even a bare sketch unbloggable. Second, because constitutional interpretation is thought to be a difficult case for formalists. I began my brief sketch with by saying, "first and foremost judges should follow the rules laid down.," and I followed that with a set of guidelines that neoformalist judges might follow in constitutional cases. Let's try to present those more formally, as a set of principles, which are lexically ordered:
Principle Two, Plain Meaning: When the precedents run out, judges should look to the plain meaning of the salient provisions of the constitutional text.
Principle Three, Intratextualism and Structure: When the text of a particular provision(s) is ambiguous, judges should construe that provision so as to be consistent with other related provisions and with the the structure of the Constitution as a whole.
Principle Four, Original Meaning: If ambiguity still persists, judges should make a good faith effort to determine the original meaning, where original meaning is understood to be the meaning that (i) the framers would have reasonably expected (ii) the audience to whom the Constitution is addressed (ratifiers, contemporary interpreters), (iii) to attribute to the framers, (iv) based on the evidence (public record) that was publicly available. (Adapting Grice's formulation of speaker's meaning.)
Principle Five, Default Rules: And when ambiguity persists after all of that, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law. (And in this post, I will only offer a promissory note with repsect to the content of such principles.)
Principle Six, Lexicality and Holism The first five principles are to be understood as lexically ordered in the following sense. Judges should order their deliberations by the first five principles--attempting to structure their conscious deliberations by attending to the features highlighted by each each principle in order before proceeding to the next principle. But this requirement does not entail that judges either will not or should not recognize that the considerations thematized by one principle may be relevant to deliberations explicitly organized by another principle. Thus, the interpretation of a precedent will sometimes (perhaps always) require consideration of the text, structure, and original meaning, and so forth. (Lexical ordering is a guideline for structuring deliberation, and is not inconsistent with the observation that interpretation involves what Gadamer called the hermeneutic circle.) These are principles not rules, and lexical ordering operates a methodological heuristic and not as a rigid rule.
Neoformalism: Who? A neoformalist methodology is a necessary but not a sufficient condition for realization of the rule of law. Even the most elaborately detailed set of methodological principles would be of no avail, if applied by judges who aimed to bend the method to the goals supplied by their political ideology. For this reason, a neoformalist theory of judging is incomplete without a complimentary account of judicial character--of the judicial virtues and vices. To adumbrate this aretaic turn, for neoformalist to work, judges must be selected for thier possession of the following virtues, among others:
--Judicial Temperance. Judges must have their desires in order--in order to avoid the temptations that can lead to corruption. The phrase "sober as a judge" reflects the recognition of this fact in folk jurisprudence.
--Judicial Intelligence. Judges need to be pretty smart, because the law is frequently complicated or obscure. Moreover, a good judge must be "learned in the law."
--Judicial Wisdom. Sound rule application requires legal vision--the ability to recognize the legally salient features of a choice situation. Rules do not apply themselves, and only a judge with the virtue of phronesis or practical wisdom will consistently apply the rules in a sensible way.
--Justice. Judges must posesse the virtue of justice--the disposition to decide in accord with the law, as opposed to whim, partiality, bias, or political ideology.
The Virtue of Justice
Now one can easily justify following these cases today because they are precedents. But the question I want to ask is whether the cases were originally correctly decided in the first place. That is, could someone who holds the views that Larry does about good judging consistently come out the "right" way on the sex discrimination issue? Frankly, I don't think it's possible. I don't think one can make a serious case that the 1970's sex discrimination cases are consistent with Larry's notion of what good judging is, at least if the point of good judging is to "follow the rules laid down."
Biting the Bullet So I really have to bite the bullet. As Balkin recognizes, I am forced into the following position. Although the Supreme Court's gender equality jurisprudence is binding precedent and should continue to be followed by both the Supreme Court and the lower courts, those decisions were badly reasoned and gave insufficient weight to contrary precedent. Now, Balkin is right when he assumes that I "would agree that women should not be subjected to discrimination by the states or the federal government." So how can I possible think that decisions which lead to a result of which I approve are incorrect as a matter of law? Haven't I contradicted myself? Well, no. In fact, obviously not. Why not? Because judicial fiat is not the only way to change the law. Law can be changed by amending statutes, promulgating regulations, and even in some cases, by amending the constitution. If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law. Even with the Supreme Court's gender equality jurisprudence, both Congress and state legislatures have enacted a wide variety of important gender equality legislation. And it is not clear the polities without our institution of judicial review (the United Kingdom, Denmark, etc.) have lagged behind the United States in achieving gender equality.
The Flip Side And it is important to remember that there is a flip side of Balkin's argument. It is an accident of history that Balkin and I are debating these issues in 2003. In the long run of American history, the Warren and Burger courts are not the rule, they are the exception. The judicary is not usually the vanguard of progressive politics. The judiciary is usually a force for conservative values and entrenched interests. Balkin argues for constitutional change through what he calls high politics (see Balkin here, my satirical critique here, and Balkin's reply here.) But high politics can be practiced by the left and the right, by the progressives and conservatives, by the friends and foes of women's equality. If you read Balkin's full post, you will find that he argues that the Supreme Court's gender equality jurisprudence cannot be supported by precedent, text, structure, or original meaning. Balkin argued that the only justification for the gender equality decisions was "high politics." This is very, very important. So Balkin's theory argues that high political judicial decisionmaking is justified even when the decisions run contrary to the precedents, text, and original meaning of the Constititution. And hence, Balkin is committed to the proposition that high political decisions overruling Roe v. Wade or Brown v. Board or even the very genderal equality decisions he endorses would be legitimate. Legitimate, not right. Balkin can argue that the high politics that would lead to these results would be bad high politics. But he cannot argue that it would be illegitimate high politics. By way of contrast, neoformalism leads to the conclusion that it would be illegitimate to overrule Roe, Brown, or the gender equality decisions for political reasons. If Balkin's theory were followed, then the progressive decisions he treasures can be blown away by a shift of the high-political winds (the jet stream of politics). If neoformalism were to prevail, then the progressive decisions he treasures and many Rehnquist Court decisions he dislikes would both be protected from high political hurricanes and tornados. Of course, neoformalism does not require precedents to remain unaltered forever. A gradual process of case-by-case adjustment can lead even neoformalists to the conclusion that a precedent has become bad law.
The Downside of High Politicization But the flipside is not the real downside of Balkin's theory. The real downside of "high politics" is that it poses a fundamental threat--over the long run--to the rule of law. Balkin is a master rhetorician and a brilliant argumentative tactician, but even he cannot disguise the true nature of his position. Balkin's fundamental position is that the judges should make political decisions in constitutional cases, even when those decisions cannot be justified by precedent, text, or history. Balkin knows that many readers (especially those outside of the legal academy and departments of political science) will have great difficulty swallowing this radical position. So he tries to sugar coat it. Here is what he says:
The Downward Spiral of Politicization Actually, high politics might not be such a bad thing in a society with a strong and stable consensus on matters of fundamental value. In such a society, judges would rarely need to strike down legislation on the basis of high political decisionmaking. And when high politics were called for, there would be little disagreement on the bench--since the judges would all share the same political ideology. But we don't live in that kind of polity. As Balkin recognizes, high politics are highly contentious in our current circumstances. Moreover, we are closely divided on a variety of issues with constitutional dimensions. If we live in Balkin's world, then high political ideology becomes the primary criterion for selecting judges--and as a result we get confirmation wars--so long as neither party controls both the Presidency and the Senate. If one party does gain control of both institutions, then it becomes in that party's self-interest to do their best to pack the federal judiciary with ideological judges who will vote for the party's high political preferences when on the bench. Decisions that disregard precedent, text, and history are legitimate--so long as they have high political rationales. Even lower court judges can get into the game. Why not construe Supreme Court precedents very narrowly--if they conflict with your own high political preferences? The Supreme Court can attempt to retaliate with summary reversals, but given the limits of the Supreme Court as an institution, it is inevitable that determined trial court and appellate court judges will be able to circumvent the will of the Supreme Court a great deal of the time. And down the spiral we go. The confirmation process becomes increasingly contentious and bitter. Justices snipe at one another, with colleague accusing colleague of blatantly political decision making. In this atmosphere, will the distinction between high politics and low politics remain inviolate. Will the parties refrain from nominating and confirming low-political judges if they get the chance? Will judges who began their careers as high politicians refrain from low politics once it becomes clear that "Law is the continuation of politics by other means." Does any of this sound familiar?
How Low Can You Go? Very Low! And where is the bottom of a downward spiral of politicization? Where does this all end? We need not avail ourselves of science fiction or possible worlds to answer this question, because the world of a thoroughly politicized judiciary is all too familiar from human history and comparative jurisprudence. A thoroughly politicized judicary offers no protection for human rights when the judges are aligned with the ruling regime. A thoroughly politicized judiciary views every case as an opportunity for patronage and political favortism. And when the rule of law goes, the piper will be paid in more than the currency of human rights. Without the rule of law, the transparency of markets begins to erode and eventually markets begin to collapse. Of course, there are stopping points on the slippery slope short of the complete breakdown of the rule of law. Most significantly, as the rule of law begins to erode the costs begin to become apparent, creating political pressures for the reformalization of the judiciary. My point is not that we are doomed. Quite the opposite. It is that we have choices in the here and now. Deescalation is a possibility. Presidents can nominate judges who are dedicated to the rule of law. The Senate can evaluate those nominees on the basis of their possession of the judicial excellences rather than on the basis of their political ideologies. The highly politicized Supreme Court can gradually move towards a more formalist, constrained approach to constitutional interpretation.
A Category Mistake And that, I think, is why these theorists frequently slide between the normative and the explanatory. Because Jack Balkin is right. You cannot explain constitutional change with a normative neoformalist theory of judging. That would be a category mistake, as Balkin well knows. I can well believe that our constitutional history involves theories like Balkin and Levinson's, Dworkin's, or Ackerman's in an explanatory role. More crudely, of course, Balkin is right. Of course, we can only explain the Warren and Burger Courts by bringing politics into the picture. But that isn't a normative argument. "Ought" implies "can," but "is" doesn't imply "ought."
The Bitter Truth Oh, how I yearn for my optimistc faith that fairness was lawfulness. Oh, how much I want it to be that case that the Constitution is perfectly just. Oh, how I long for the theory that would make this so. Oh, how I wish that my high politics were the law of the land. As a law student, I believed with all my might that it was so. And every once in a while I am able to talk myself into believing once again--although sadly, I find that these glorious moments grow shorter and shorter, fewer and fewer. These days my mouth is full of bitter truth.
Walk Out For interesting commentary of the Democratic walk out from the Texas leglislature check out Marston, Hasen, Oddi, Oman, and Yglesias.
Distributive Justice in the Classroom Go to Tom Runnacles for (you may need to scroll as the permlink is bloggered) a wonderful post that starts with this story, originally from John Lemon:
Saturday, May 17, 2003
Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski
Kozinki on the Ninth Circuit's Second Amendment Jurisprudence Lazarus starts with a recent dissenting Second Amendment opinion by Judge Alex Kozinski (actually a dissent from denial of a petition for rehearing en banc in Silveira v. Lockyer, a Ninth Circuit decision which rejected the individual rights view of the Second Amendment (which has been adopted by the Fifth Circuit in United States v. Emerson). This is a remarkable dissent. Here is the beginning of Kozinski¡¦s very pointed dissent:
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller's weapon--a sawed-off shotgun--was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller's claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller's test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.
Lazarus's Interpretation of Kozinski So how does Lazarus characterize Kozinski's opinion? Here is how he starts:
In addressing these issues, Kozinski surely must be commended for moving beyond the usual claptrap. It's standard fare for politicians and judicial nominees to try to deny that personal views play a significant role in judicial decision-making. The political rhetoric on the issue of judging is filled talk of setting aside personal views when deciding cases and applying "neutral" principles of judging. Yet with one snip of his rhetorical scissors, Kozinski has let the cat out of the bag: neutral principles are an illusion.
--Lazarus might be claiming that Kozinski is arguing that some judicial decisions do not rely on neutral principles. If so, then Lazarus's argument is correct and fair as an interpretation of Kozinski, but then his conclusion "with one snip of his rhetorical scissors, Kozinski has let the cat out of the bag: neutral principles are an illusion" is a gross distortion of the import of his argument. Why? First, because the possibility of unprincipled judging was never a cat in the bag to be let out by a snip of rhetorical scissors. No one has ever claimed that all judges are always principled; no one who would read Lazarus¡¦s column is a school child who would believe such a obviously false claim. Second, the phrase, "neutral principles are an illusion," is, at best, a misleading way of stating that some judges do not adhere to neutral principles. I don't know what Lazarus meant to say, but what he did say doesn't hang together.
Indeterminacy? And things get even stranger. Lazarus continues:
Some Does Not Imply All Lazarus continues:
Ideological Integrity Back to Lazarus. We pick up where we left off. Lazarus is now giving us his take on Kozinski's view of judicial intergrity:
Methodological Integrity And that brings us to Lazarus's own vision of judicial integrity. Here are the crucial passages:
Judges have available to them a variety of legitimate interpretive doctrines for giving meaning to the Constitution. One such method is originalism: looking to the Framers' intent insofar as it can be ascertained (always a problematic task). Another is textualism: Stressing the words of the Constitution, or a given statute, on the ground that they are the law to which all who were present agreed.
Some judges always look at legislative history; some never do. Some cite the Federalist Papers; some rarely do. Some look more closely at what their brethren think; some try to chart their own course. Some are steeped in constitutional history; some believe the Constitution needs to be dramatically updated for the modern world. All these different methods have very concrete consequences: What sources do judges stress? How much weight do they give them?
In my view, that is fine: Judges are entitled to choose their interpretive methods. But once they do, they should stick with it, unless they are convinced another is superior, and if so, they should stick with that.
Asymmetrical Perceptions and Cognitive Malfunction Because it is my suspicion that most of us see the flaws in other's arguments more readily than we see the flaws in our own arguments. I suspect that many on both the left and the right believe that thier own positions are more or less consistent (both at the level of ideological principle and at the level interpretive methodology) while simultaneously believing that most of their opponents are inconsistent on both scores. This is related to the well-known psychological phenomenon of cognitive dissonance. I have friends on both the left and the right. Many of my left-wing friends believe things like: "Repubicans are all greedy. Members of the Federalist Society are part of a conspiracy to take over the federal bench. Originalists only pay attention to the historical evidence when it suits their ideological purposes." And many of my right-wing frineds believe things like: "The Democrats' chief objective is to use the power of government to steal from those who work hard to pay off Democratic interest groups. Left-wing judges deliberately ignore the law in order to carry out a political agenda they know could never succeed at the ballot box. Left-wing legal academics will adopt any theory that supports thier ideological objectives, and then disregard it in their very next article if it proves inconvenient." And guess what? When, from time to time, I ask members of each group about these asymmetrical perceptions, they say: "I know that the other side says they believe those things about us, but that's just rhetoric and propaganda. But they really are evil or maybe just stupid." You know I'm not exaggerating. I've heard words very much like these, over and over again. Of course, there are exceptions on both sides of the ideological divide. And those who are able to see the flaws in their own beliefs have an important virtue--intellectual integrity. They are willing to put their own beliefs to the same tests they put the beliefs of their opponents.
Judicial Integrity: Consistency is the Minimum And I would argue that there is a lesson here that applies to the question: what is judicial integrity? Let me suggest that the minimum condition for judicial integrity is consistency. Different judges have different judicial philosophies. Some believe that the constitution should be interpreted instrumentally, to serve certain fundamental values. Others believe that the constitution should be interpreted formalistically, by following precedent when it is available, reading the text for its plain meaning if that is possible, and relying on history to resolve the gaps and ambiguities. At a minimum, judicial integrity requires consistency in judicial philosophy. If interpret instrumentally, relying on general principles, then do that across the board--even when you don't like the results. If you follow the original meaning as a general rule, then don't depart from it because you don't like the original meaning of a particular provision. Judges on both the left and the right have been guilty of inconsistency, and in my opinion, inconsistent judges are bad judges--whether or not I like their politics.
Judicial Integrity: Fidelity to Law and Concern for its Coherence Judicial integrity as consistency is a thin theory of judicial integrity. Only those who deny the possibility of consistency or the value of integrity itself would challenge this theory. But a more robust theory of judicial integrity is available. I have argued elsewhere that the key judicial virtue is the virtue of justice--the disposition to decide cases on the basis of the law rather than on the basis of whim, favoritism, or political ideology. This is a relatively thick theory of judicial integrity, because it assumes a particular conception of the virtue of justice. Now here is the odd thing. I find Lazarus's critique of Kozinski to be radically off the mark--it is filled with sloppy argumentation and contradicts itself at several points. But I agree with Lazarus's bottom line. Judges should adopt a set of general principles (libertarian, statist, communitarian, liberal, whatever) and then read the constitution so as to realize the principles they endorse. Judges should be trying, as best they can, to figure out what the constitution means as law. That means that first and foremost judges should follow the rules laid down. Even the Supreme Court should regard its own precedents as binding, unless there is a compelling reason to do otherwise. We've been speaking mostly of constitutional law, so I will limit myself to that topic by way of illustration. When the precedents run out, judges should look to the plain meaning of the constitutional text. When the text of a particular provision is ambiguous, judges should look to other provisions and then to the structure of the Constitution as a whole. And if ambiguity persists, judges should make a good faith effort to determine the original meaning. And when ambiguity persists after all of that, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law.
Back to Kozinski So in the end, it turns out that I disagree with Kozinski. The fact that a particular judge construes the freedom of speech broadly does not entail that that judge should read the right to bear arms broadly. It depends on the precedents, text, structure, and original meaning. Kozinski's bottom line was off the mark. But on the other hand, Kozinski's criticisms of the majority in Silveira v. Lockyer were on the money--it was a badly reasoned opinion. I am no expert on the Second Amendment, but I have followed the debates with some care. I suspect that Kozinski is right on the merits as well--although I could easily be persuaded otherwise upon a serious reexamination of the evidence. As I said at the outset, I doubt that either Kozinski or Lazarus will like what I have to say. And isn't that interesting?
Friday, May 16, 2003
Marston on the Rule of Law Brett Marston has a very smart post on the relationship between the rule of law and judicial philosophy on Marstonalia. Marston adopts my simple model of judicial philosophy, which posits that judicial attitudes be placed on a real line that runs between realist and formalist, as illustrated by the following diagram:
__________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|
Marston argues that somewhere along this real line there is a threshold for the rule of law. So:
_______The Rule of Law Threshold
__________Realist__| ___________________| ___________________| ___________________| ___________________|__--Rule of Law Threshold ___________________| ___________________| ___________________| ___________________| ________Formalist__|
In other words, Marston argues that moderate realism is consistent with the rule of law. This is a very interesting and important question. My intuition is that Marston is partly right and partly wrong. It depends on a variety of factors. Here is a partial list:
--Consistency in Judicial Philosophy Even in a society with a high degree of ideological consensus, the rule of law will be undermined if different judges have different judicial philosophies. So if we had a judiciary componsed of 10% extreme realists, 40% moderate realists, and 50% extreme formalists, this would undermine the rule of law--because different judges would be using different theories of statutory and constitutional interpretation, stare decisis, and so froth. A judiciary composed of 90% moderate realists, with 5% extreme realists and 5% extreme formalists might better serve rule of law values--even though its average formalism score was lower.
--Rule of Law Tradition. Legal systems may transition from formalism to realism and back. A long tradition of formalism will build a reservoir of predictability and certainty in the law. During a transition from formalism to realism, this reservoir acts as a depletable resource. Moderate realism may be quite consistent with the rule of law under these conditions--although as the reservoir of predictability is gradually depleted, rule of law values may become more and more threatened.
New Papers on the Net Here is today's roundup:
Jeffrey Miron (Boston University, Economics) posts The Effect of Drug Prohibition on Drug Prices: Evidence from the Markets for Cocaine and Heroin.
Rosalie Pacula (RAND), Jamie Chriqui (The MayaTech Corporation) and Joanna King (The MayaTech Corporation) upload Marijuana Decriminalization: What does it mean in the United States?.
Andrew Daughety and Jennifer Reinganum (Vanderbilit, Economics) post Markets, Torts and Social Inefficiency. Here is the abstract:
We examine two measures of competitiveness: the number of firms, and the degree of substitutability of the products. Holding substitutability constant, an increase in the number of firms always reduces equilibrium safety effort. On the other hand, holding the number of firms constant, increasing substitutability first decreases, but ultimately increases, the equilibrium safety effort. Non-cooperative firms under-provide safety effort (relative to the restricted social planner's preferred level) when the products are relatively poor substitutes. However, when the products are sufficiently good substitutes, the non-cooperative firms over-provide safety effort. Moreover, the more firms there are in the industry, the less substitutable their products need to be in order for the equilibrium to result in over-provision of safety effort. Under-provision of safety becomes more typical as the rate of third-party exposure increases or as the amount of third-party uncompensated losses increases. Finally, we use the settlement subgame to examine the effects of alternative tort reform policies on the equilibrium provision of safety and welfare. In the presence of third-party victims, welfare can be increased even though changes in such policies may increase expected trial costs.
Confirmation Wars: Bits and Pieces Here are some bits and pieces from hither and yon (but especially with the help of the amazing Howard Bashman):
--Matthew Thomas writes in response to my recent posts on the two dimensions of judicial attitudes (political ideology and judicial philosophy). Thomas suggests that purely formalist judges would converge. I've blogged his full email and a response here on Legal Theory Annex.
--David Bernstein comments on the Judicial Watch lawsuit against the Democratic filibuster, joining the chorus of voices opining that the suit will fail for want of justiciability.
Quiggan on Rawls Yesterday, I commented on John Quiggan's claim that utilitarianism lacks serious competitors as a public philosophy, by asking "Rawls?" Quiggan responds:
Thursday, May 15, 2003
Confirmation Wars: "Moderate" and "Extreme" Are Meaningless Labels Russell Korobkin has a provocative post on the Volokh Conspiracy, arguing that the confirmation wars are a good thing:
If left/right political ideology were the sole relevant attribute, then we could define moderations as the zone in the center of the spectrum. Let the plus symbol ("+") denote those positions on the left/right political ideology line that are moderate:
But this picture is much too simple. In the real world, judges are mutlidimensional and labels like "moderate" and "extreme" (especially if undefined and criterialess) are virtually meaningless. To get a richer sense of the systematic ways in which judges differe, we need, at the very least, to consider two dimensions of judicial attitude. On the one hand, judges (like the rest of us) have political beliefs, and we might map these onto a simple one dimensional left to right scale. On the other hand, judges have judicial philosophies--attidutes about statutory and constitutional interpretation, the role of precedent, and so forth--and we might map these onto a simple formalist-realist scale. Let's assume that a formalist judge (near the origin of the vertical axis) decides cases on the basis of the legal materials and insofar as humanly possible does not allow her political ideology to influence here decisions. At the apex of the vertical axis would be a realist judge, who decides cases purely on the basis of her ideology--without allow the legal materials (statutes, constitutional provisions, precedents) to influence her decision. This very simple picture yields a two dimensional space:
_____________________Two Dimensions of Judging __________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right
But what counts as moderate in this space? The answer to this question depends on your general jurisprudence. Consider the following approaches to defining moderation:
_____________________Realist Picture of Moderation __________Realist__| ___________________|________+++++++++ ___________________|_________+++++++----Moderate Zone ___________________|__________+++++ ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right
--Formalist moderation.Formalists (or their contemporary cousins, neoformalists) see moderation in an entirely different way. To a formalist, the key to moderation is avoiding politicized judging. Sophisticated formalists know that politics might influence even a formalist judge who tries in good faith to set aside her political beliefs, but formalists believe that judges with different political ideologies will converge on a fairly narrow band of legally correct outcomes. On the formalist picture, the moderation zone will stretch out across the bottom of our two-dimensional space:
Is Judge Judy a Moderate? But now we have a problem. Formalists and realists will disagree about the assessment of particular judicial candidates. Let's take a hypothetical example. Judge Judy is a formalist, and believes that even justices of the Supreme Court should strictly adhere to stare decisis. Judy also believes that at the margins and in cases where there is no precedent, judges should follow the plain meaning of the constitutional text, resorting to structure and history only when necessary to resolve ambiguities. Judge Judy therefore believes that Roe v. Wade should be followed as precedent. Some realists may argue that she is an extreme left-wing judge, because she believes that Roe cannot be overruled. And some formalists may see her as a moderate, because she believes that the doctrine of stare decisis overrides her personal beliefs. This example has been vastly oversimplified, but even in this simplistic form is sufficient to demonstrate an important point. The meaning of the labels "extreme" and moderate" is relative to a theory of general jurisprudence. The very same judge could be labeled a moderate by a realist and an extremist by a formalist--or vice versa. Without articulated criteria for their application, the labels "moderate" or "extreme" are meaningless as applied to judicial candidates.
Confirmation Wars: Bits and Pieces Gathered from hither and yon, bits and pieces on the confirmation wars:
--On NRO, Byron York has a piece entitled Nuclear Option, No. Nuclear Response, Yes. Here is a juicy bit:
New Papers on the Net Here is the roundup:
Catherine M Sharkey (Columbia) posts Punitive Damages As Societal Compensatory Damages, forthcoming in the Yale Law Journal. Here is the abstract:
Richard Nobles and David Schiff (London School of Economics) post The Right to Appeal and Workable Systems of Justice, forthcoming in the Modern Law Review. From the abstract:
Hanoch Dagan, "Qualitative Judgments and Social Criticism in Private Law: A Comment on Professor Keating", Vol. 4, Theoretical Inquiries in Law (Online Edition): No. 1, Article 2 (2003).
Ariel Porat, "The Many Faces of Negligence", Vol. 4, Theoretical Inquiries in Law (Online Edition): No. 1, Article 3 (2003).
Richard W. Wright, "Hand, Posner, and the Myth of the "Hand Formulax", Vol. 4, Theoretical Inquiries in Law (Online Edition): No. 1, Article 4 (2003).
Tsachi Keren-Paz, "Egalitarianism as Justification: Why and How Should Egalitarian Considerations Reshape the Standard of Care in Negligence Law", Vol. 4, Theoretical Inquiries in Law (Online Edition): No. 1, Article 5 (2003).
Daniel More, "The Boundaries of Negligence", Vol. 4, Theoretical Inquiries in Law (Online Edition): No. 1, Article 6 (2003).
Paul H. Robinson, "Prohibited Risks and Culpable Disregard or Inattentiveness: Challenge and Confusion in the Formulation of Risk-Creation Offenses", Vol. 4, Theoretical Inquiries in Law (Online Edition): No. 1, Article 7 (2003).
Leo Katz, "Harm and Justification in Negligence", Vol. 4, Theoretical Inquiries in Law (Online Edition): No. 1, Article 8 (2003).
Robert Rabin, "The Fault of Not Knowing: A Comment", Vol. 4, Theoretical Inquiries in Law (Online Edition): No. 1, Article 9 (2003).
When Did Utilitarianism Make Its Big Comeback John Quiggan has a cryptic post entitled Word for Wednesday: Utilitarianism (definition). Here is the part that left me gasping for air:
Conservatives versus Libertarians W. James Antle III has piece entitled The Conservative-Libertarian Clash: Values and the Free Society. Here is a taste:
Welcome to the Blogosphere Department Welcome to Philosophy from the (617), or ten philosophers who share an area code. The cast includes:
Wednesday, May 14, 2003
The Curmudgeonly Clerk on the Confirmation Wars The anonymous curmudgeonly clerk has a very thoughtful post on the judicial confirmation wars.
The Evolution of Cooperation Check out Cold Springs Shops for interesting blogging on the evolution of cooperation.
American Constitution Society Blog The ACS has established an open blog. Here is the link. I do believe that the Federalist Society will now need to play catchup!
Update: I am reminded that the Harvard Federalist Society has an excellent blog, link here. Thanks to Adam White for the correction. Here is a link to Adam's post gently chiding me.
More on the Confirmation Wars More bits and pieces from hither and yon:
Brett Bellmore writes with a very nice analysis of the model of judicial selection that I presented in a post entitled Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy.
Hill News has a very interesting report on the Hatch plan for breaking a filibuster:
Yglesias on Legal Realism and Legal Formalism
--Rather than opposing legal realism to legal formalism, we could instead subsitute instrumentalism for realism. This captures the realist's normative thesis that the law should be used instrumentally to achieve policy goals.
--The analogy between legal realism and moral realism is both illuminating and imperfect. On the one hand, there is a strand in the legal-realist/legal-formalist debate that does resemble debates over realism in metaethics. This is the strand that centers around the legal-realist claim that there is no "heaven of legal concepts" (in von Jhering's felicitous phrase). This strand of the debate portrays the formalist as a Platonists of some sort. But on the other hand, although such platonist views sometimes figure in legal formalist reasoning, most modern neoformalists emphasize the thesis that law is conventional, a product of human practices. This side of legal formalist is deeply anti-Platonic, and is not a close cousin of moral realism.
--So, my motto when using the phrases "legal realism" and "legal formalism" is "Stipulate, stipulate, stipulate!" We don't want to do away with these labels which are important to the traditions of American legal thought, but we don't want to use them carelessly, in a way that generates ambiguity and confusion. I try to use "neorealism" and "neoformalism" when discussing contemporary theoretical debates--so as to highlight that my usage is stipulated rather than purely conventional.
Digression: The Point of the Post to Which Yglesias Responded Let me get this out of the way quickly. The post to which Yglesias responded was entitled Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy. The point of this post was to present a simple model of the judicial selection process. The versions of legal realism and legal formalism that I laid out for the purposes of the model were not intended as versions that we would compare as a matter of moral or political philosophy. When we engage in that project, we need to build the best version of each theory--something I was definitely not attempting to do for the purpose of building a simple game-theoretic model of the judicial selection process.
Back to Yglesias So now Yglesias is working out the implications of his definition of "political ideology," which he defines as "sound" political philosophy including a sound view about the judicial function:
If I were a formalist judge, clearly, my ruling would be that the Senate is perfectly constitutional. Irrespective of one's views on the wisdom of having written the constitution this way, nothing could be textually clearer than that the Senate is supposed to be governed by the "one state, two Senators" principle rather than the "one citizen, one vote" principle. So I will say, "look, I think the Senate is a bad idea, but just because something is a bad idea doesn't make it unconstitutional. I need to decide this case on the basis of 'legal materials, the text, structure, history, and precedent' and those things say the Senate is kosher."
Now suppose I were a realist judge, would my decision be any different? My answer is no. Why? Well because in addition to the view that the Senate is a bad idea, my political ideology also maintains that the rule of law is a valuable thing. The relevant idea here is that a citizen who wishes to obey the laws ought to be able to figure out which things are going to be considered legal and which illegal. In order for this to work, the determining factor in judicial rulings can't be somewhere in judges' heads (or in the political ideologies that are in their heads) it has to be written down somewhere publicly-accessible.
Legal Realist: The rule of law is sometimes a good thing, and sometimes it isn't. The rule of law is valuable for reasons, principly reasons of predictability and certainty. Those reasons must be weighed against others. So judges should take each case as it comes. Frequently, that best decision, all things considered, will depart from the text of a statue or constitutional provisions in order to achieve some important goal.
Legal Formalist: That sounds nice, but remember that judges have differing political ideologies and hence different beliefs about what the "best decision" is. Once judges start departing from the texts to achieve what they believe is the best result, the whole process of judging is likely to become politicized.
Legal Realist: "Likely to become politicized." Where have you been? Mars? It already is politicized, and it will always be politicized. You are really just like me. Only the political results you favor just happen to coincide with narrow, literalist readings of legal texts. I'll bet that when following precedent leads to a result you don't like, you will figure out some sneaky way to get around the cases.
Legal Formalist: I admit that I am all too human, and I'm sure that my political beliefs sometimes creep into my decisions. We all know that. But you are dead wrong if you think that I always reach the result I want. I apply laws I don't like and follow precedents that I would have decided differently. Sometimes, I find myself pulled in one direction by my political beliefs, and I have deliberate very carefully to compensate for my own biases. But frequently, I can compensate.
Legal Realist: Buddy, you need to see a shrink. Those cases where you think you are deciding contrary to your politics? I'll bet that if you really examined your self, you'd find that you are doing exactly what you want to do. You are just rationalizing.
And Yglesias Once More So where does Yglesias go?
Faced with a judge who has a bad ideology, therefore, I should reject him, just as faced with a congressman candidate who has a bad ideology I shouldn't vote for him. The reason I will oppose my ideologically-incorrect congressman isn't that he proposes to decide legislative issues on the basis of ideology, but rather that he proposes to decide them on the basis of bad ideology. Similarly, faced with an ideologically-incorrect judicial nominee, I should oppose him not because he's ideological, but because he's wrong.
But there's a difference, you say. The difference is that when considering a candidate for office you need to consider his ideology as a whole whereas when considering a judicial nominee you ought to consider only his ideology insofar as it pertains to his attitude toward the rule of law. This is misguided, however, not because you ought to consider a judge's whole ideology, but because you shouldn't consider any candidate's whole ideology. If I'm considering a candidate for the House of Representatives, for example, I may safely disregard his views concerning judicial confirmations because House members don't get to vote on this. Similarly, I can ignore the views of a candidate for New York Attorney General on the issue of tax policy because he doesn't get a say on that. In other words, one considers a candidate for office's ideology only insofar as it pertains to the office in question. When considering a candidate for the judiciary, therefore, one ought to consider his ideology insofar as it pertains to the rule of law.
Long story short, we should all be quasi-formalists which is to say that we should all be realists and we should all subscribe to an ideology that affirms the importance of the rule of law.
Post Script:And I have just discovered Jacob Levy's marvelous post responding to Yglesias.
Duke Conference on the Public Domain Courtesy of Kim Weatherall, Here is a link to the conference papers. The extraorindary lineup includes:
The Second Enclosure Movement and the Construction of the Public Domain--James Boyle
Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain--Mark Rose
Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age--Carol M. Rose
Ideas, Artifacts, and Facilities: Information as a Common-Pool Resource--Charlotte Hess & Elinor Ostrom
Mapping the Digital Public Domain: Threats and Opportunities--Pamela Samuelson
Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain--Yochai Benkler
Reconciling What the First Amendment Forbids with what the Copyright Clause Permits: A Summary Explanation and Review--William K. Van Alstyne
Two Relationships to a Cultural Public Domain--Negativland
"Fairest of them All" and Other Fairy Tales of Fair Use--David Nimmer
Bayh-Dole Reform and the Progress of Biomedicine--Arti K. Rai & Rebecca S. Eisenberg
A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment--J. H. Reichman & Paul F. Uhlir
Reimagining the Public Domain--David Lange
Presser versus Rappaport on the Confirmation Wars The Federalist Society website has a nice debate between Stephen Presser and Michael Rappaport on the constitutionality of filibusters, recess appointments, and other issues relating to the confirmation wars. Download the debate as a .pdf file here. And the Federalists have a nice bibliography here.
Bertram at Oxford At Oxord's Research Seminar in Political Theory today, Chris Bertram (Bristol, Junius) presents Global Justice and Democracy.
Tuesday, May 13, 2003
Dennett on the Evolution of Human Freedom Go here for an interview with Daniel Dennett on his new book Freedom Evolves. Here is a taste:
Campaign Finance Updates If you are interested in the current state of all things BCRA (McCain/Feingold), go to Rick Hasen's Election Law Blog, which has comprehensive coverage and amazing analysis.
Codification of the Economic Substance Doctrine A Taxing Blog has a very nice post of interest to anyone who cares about the relationship between courts and agencies.
Leiter on "It Takes A Theory to Beat a Theory" Re my recent post, Brian Leiter writes:
Confirmation Wars: Bits and Pieces From hither and yon:
Terry Eastland has an editorial for the Weekly Standard entitled Filibuster Again! And Again!. Just a bit of fact checking would have been helpful:
--Eastland writes, "Not incidentally, the Senate Republican leadership could force the Democrats to conduct a real filibuster--marathon, stay-up-all-night sessions like those of yesteryear. That might fix the process real quick." This myth has long been debunked. 24/7 works to the disadvantage of the majority--which must maintain a quorum 24/7 to keep up the pressure. The filibustering minority needs only have one or two members present. No modern filibuster has been broken by the 24/7 technique.
New Papers on the Net Here is today's roundup:
Lynn Lopucki (UCLA) uploads two papers:
The Myth of the Residual Owner: An Empirical Study.
R. Cassidy (Boston College) offers Sharing Sacred Secrets: Is It (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?, forthcoming in the William and Mary Law Review.
Alberto Chilosi (Pisa) posts On the Extended Coasean Approach to Economic Policy.
Monday, May 12, 2003
Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy
Building the Model: Step One: A Two Dimensional Analysis of Judicial Candidates In the actual world, the evaluation of judicial candidates is multidimensional. Candidates have positions on a variety of issues of interest to Presidents and Senators, from freedom of speech to federalism. Candidates also have complicated judicial philosophies, with views on issues like theories of statutory and constitutional interpretation, stare decisis (precedent) and so forth. To build a model, we must simplify. So I am going to make a huge simplying assumption, i.e. that judges are rated by judicial selectors (Presidents and Senators) on two dimensions. Here they are:
--Judicial Philosophy. I assume that selectors rate candidates on the basis of their judicial philsophy on a continuous real line that runs from formalist to realist. Let us assume that a perfectly formalist candidates would decide cases entirely on the basis of the legal materials, the text, structure, history, and precedent, without any conscious reliance on poltical ideology. Give such a candidate a score of zero. Let us assume that a perfectly realist candidate would decide cases enitrely on the basis of political ideology, giving no weight to legal materials at all. Give such a candidate a score of one.
Building the Model: Step Two: How Selectors Rate Candidates Given our simple two dimensional model, how would judicial selectors (Presidents and Senators) rate candidates? This is a complex question, because selectors themselves may vary in both political ideology and judicial philosophy. For the purposes of model building, let's assume a simplified picture. Let's assume that to make an appointment, you need to get the agreement of two players: a right-wing President and a unitary left-wing Senate. (This obviously oversimplifies, because in current circumstances the Senate has a right-wing majority and a left-wing minority with veto power--unless the filibuster rule is changed.) How would they evaluate candidates? Consider each in turn:
--The Senate. Now assume you are the Senate (or to be more realistic, the Senate minority with a filibuster-enabled veto). You will be willing to accept realist judges only if they are on the extreme left of the ideology line. As judges become more formalist, you are willing to accept progressively less left-wing ideologies. That is, the line the defines the set of candidates that are acceptable to the Senate slopes downward and to right.
___________________Acceptability Frontiers for President & Senate
__Realist1| ________13|_____*______________________________________________________________________# ________14| ________15| ________16|_______*__________________________________________________________________# ________17| ________18| ________19|__________*____________________________________________________________# ________20| ________21| ________22|_____________*______________________________________________________# ________23| ________24| ________25|_________________*______________________________________________# ________26| ________27| ________28|_____________________*______________________________________# ________29| ________30| ________31|__________________________*______________________________# ________32| ________33| ________34|_______________________________*____________________# ________35| ________36| ________37|_______________________________________*____# ________38| ________39| ________40|__________________________________#____________* ________41| ________42| ________43|_______________________#_________________________________* Formalist_________________________________________________________________________________ __________Left_______________________________________________________________________Right __________12345678901234567890123456789012345678901234567890123456789012345678901234567890.
Building the Model: Step Three: Candidates Inside the Confirmation Zone Given our model, we would expect the President to nominate from inside the confirmation zone. Let me translate. Given our model, we would expect a right wing President to nominate candidates whose political ideology is relatively moderate and who are relatively formalist. Of course, there is a possibility that the Senate (or Senate minority with a filibuster veto) would reject candidates inside the confirmation zone. Why, because both the President and Senate will preferences inside the zone. To simplify, let's assume that on any given horizontal line (i.e. for any given level of formalism), the President prefers those to the right and the Senate prefers those to the left. Consider the following example. We have two candidates C1 and C2, who are identical with respect to their judicial philosophy score, but different with respect to their political ideology score--C1 is to the left of C2. This situation can be represented in the following diagram, which cuts off the acceptability curves above the confirmation zone:
Building the Model: Step Four: Candidates Outside the Confirmation Zone Given our simple model, judicial candidates from outside the zone are unconfirmable. Let's extend the model and consider reasons for nominating a canidate from outside the confirmation zone. Here are some possibilities:
--Asymmetrical Information About Acceptability Curves. The President and the Senate may not know the shape and location of each other's acceptability curves. The President might believe that the Senate's curve is to the right of its true location, resulting in an erroneous belief that the nominee would ultimately be confirmed. Both the President and Senate may have incentives to mislead each other about the true shape and loocation of their acceptability curves in order to gain strategic advantages in the bargaining process. In other words, bluffing may be part of the confirmation game.
--Uncertainty About Judicial Philosophies. Canidates with long judicial records may have displayed their judicial philosophies in their prior decisions, but some nominees have no judicial experience. In such cases, it may be difficult to make a reliable estimate of the position of the canidate on the judicial philosophy line. Suppose that the Senate adopts a maximin strategy for coping with this uncertainty--essentially assuming that the candidate is close to the top of the scale on realism. Suppose further that the President either has better information or simply assumes that the candidate has an average score. This could result in a the President believing that the canidate is inside the confirmation zone and the Senate (or Senate Minority) believing that the same canidate is outside the zone. Give such asymmetrical beliefs, unconfirmable candidates might be nominated.
--Horse Trading. For a variety of reasons, either the President or the Senate might be willing to accept a canidate on the wrong side of their respective acceptability curves in exchange for some other political favor.
Applying the Model Let's leave the model behind and turn back to the actual world of Bush and Schumer, Owen and Estrada. Does the model help us to diagnose the causes of the confirmation wars? Maybe. I really want to think more about this question, but I would like suggest one possibility. It is possible that Democrats are systematically biased to believe that Republican nominees are more realist than they really are, and that Republicans are systematically biased to see the very same nominees as more formalist than they really are. If this were the case, then Democrats might percieve a particular candidate E as above thier acceptability line, whereas Republicans might perceive that the same canidate as below the line. This situation might be represented as follows, with d(E) representing the Democratic belief about E's position, and r(E) representing the Republic beief about E's position. As before, the diagram cuts off the acceptability curves just a bit above the confirmation zone:
New Papers on the Net Here is the roundup:
Preston McAfee (Texas) uploads Capacity Choice Counters the Coase Conjecture. Here is the abstract:
Joel Hellmann (World Bank), Geraint Jones (MIT, Economics) and Daniel Kaufmann (World Bank Institute) post Far From Home: Do Foreign Investors Import Higher Standards of Governance in Transition Economies?.
Joel Hellmann (World Bank) and Daniel Kaufmann (World Bank Institute) post The Inequality of Influence. Here is a taste from the abstract:
Rosalie Pacula (Rand_, Jamie Chriqui (The MayaTech Corporation) and Joanna King (The MayaTech Corporation) post Marijuana Decriminalization: What does it mean in the United States?.
Bruce Owen (Stanford, Institute for Economic Policy Research) and Jorge Portillo (Economists Incorporated) post Legal Reform, Externalities and Economic Development: Measuring the Impact of Legal Aid on Poor Women in Ecuador.
McGinnis & Rappaport on Supermajoritarianism & Entrenchment John O. McGinnis (Northwestern) & Michael B. Rappaport (San Diego) have an essay in the Virginia Law Review entitled Symnetric Entrenchment: A Constitutional and Normative Theory. Here is an excerpt from the introduction:
On the normative issue, we will offer an entirely new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. A symmetric entrenchment occurs when an entrenching measure is enacted under the same supermajority rule that is needed to repeal it. For example, constitutional amendments ordinarily effect symmetric entrenchments, because they are enacted and can only be repealed pursuant to the same double supermajority rules contained in Article V of the Constitution. This theory steers a middle path between a majoritarian position, which would prohibit not only legislative entrenchments but also constitutional ones, and Posner and Vermeule's view, which would allow legislative majorities to entrench measures. Under our theory, there is a strong presumption that only symmetric entrenchments should be permitted. The presumption is intended to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable, entrenchments should generally be symmetric, because the supermajority rule used to enact entrenched measures would improve the quality of these measures and would compensate for the additional dangers that entrenchments pose.
While the theory generally permits only symmetric entrenchments, this is not an absolute requirement, but a presumption that can be overcome. There are a small number of asymmetric entrenchments, such as entrenchments needed to establish property rights and, possibly, certain entrenchments necessary to form a political union, that are desirable and may override the presumption. We will also explain why it would be advantageous for a constitution to limit entrenchments to a single mechanism, like the constitutional amendment process and its fixed supermajority rules, rather than allowing Congress to pick the degree of entrenchment it desires on a case-by-case basis.
Sunday, May 11, 2003
Froomkin on the Confirmation Wars Michael Froomkin (Miami & cyberprof extraordinaire) writes regarding my recent post entitled Breaking the Deadlock: Reflections on the Confirmation Wars:
_____________________Two Dimensions of Judging __________Realist__| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ___________________| ________Formalist__|__________________________ ___________________Left___________________Right
Once we transform the space in this way, the the terms "moderate" and "extreme" will have very different meanings to different evaluators. My own take is that anyone who departs very far from the origin on the vertical axis is an extremist, irrespective of whether their political ideology is left or right. For those who are neorealists, it may well be that "moderate" is measured only by the left to right horizontal axis--because many neorealists believe that neoformalism is conceptually or psychologically impossible. But this kind of abstract discussion won't get us very far. We really need to talk about specific nominees and lay out clear criteria for extremism. That's the only way the conversation can go forward.
Hasen on Bush v. Gore and the Confirmation Wars Check out Rick's post here.
From the Early Days of Legal Theory Blog I posted this back in September 2002, when Legal Theory Blog was really just an experiment. I thought I might share it again today:
Return of Greg Goelzhauser After a brief disappearance, Goelzhauser is back with interesting thoughts about specialization in the blogosphere.
Guide to My Confirmation Wars Posts A complete guide to my posts on the confirmation wars can be found in here in the Legal Theory Annex.
Belated Welcome to the Blogosphere I've just discovered the Curmudgeonly Clerk. This anonymous clerk for the USDC Southern District of Texas has a nice post on the confirmation wars here. Welcome!
Kerr on Cybercrime Orin Kerr (George Washington and the Most Serene Volokh Blog Republic) posts Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, forthcoming in the New York University Law Review. You will want to read this if you have any interest in Cybercrime. Here is a taste:
This Article presents a comprehensive inquiry into the meaning of unauthorized access statutes. It begins by explaining why legislatures enacted unauthorized access statutes, and why early beliefs that such statutes solved the problem of computer misuse have proved remarkably naïve. Next, the Article explains how the courts have construed these statutes in an overly broad way that threatens to criminalize a surprising range of innocuous conduct involving computers. In the final section, the Article offers a normative proposal for interpreting "access" and "authorization." This section argues that courts should reject a contract theory of authorization, and should narrow the scope of unauthorized access statutes to circumvention of code-based restrictions on computer privileges. The section justifies this proposal on several grounds. First, the proposal will best mediate the line between securing privacy and protecting the liberty of Internet users. Second, the proposal mirrors criminal law's traditional treatment of crimes that contain a consent element. Third, the proposed approach is consistent with the basic theories of punishment. Fourth, the proposed interpretation avoids possible constitutional difficulties that may arise under the broader constructions that courts recently have favored.
Saturday, May 10, 2003
Martinek, Kemper, and Van Winkle on Judicial Confirmation Wendy Martinek (SUNY Binghamton), Mark Kemper (Bridgewater State) and Steven Van Winkle (Syracuse) post To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977-1998, forthcoming in the Journal of Politics. Here is the abstract:
New Papers on the Net Here is the roundup:
This Article makes two claims. First, to the extent that Arnold both built on and broke from his realist colleagues, Symbols and Folklore force us to consider the limits of realism's continuing relevance as a foundation of contemporary scholarship. Second, in his ironic and accessible monographs Arnold established a critical public voice for the legal academic; that voice remains a compelling, if limited, model for legal scholarship that hopes to intervene in the public sphere. Ultimately, the monographs' position within the narrative of American legal theory provides both an inspiring account of cross-disciplinary inquiry and a cautionary tale of interdisciplinarity's perils.
Paul Stephan (Virginia) posts Courts, the Constitution, and Customary International Law: The Intellectual Origins of the Restatement (Third) of the Foreign Relations Law of the United States.
John T Monahan (Virginia) posts Risk and Race: An Essay on Violence Forecasting and the Civil/Criminal Distinction.
Jennifer Arlen (NYU) and William MacLeod (Southern Cal) post Torts, Expertise and Authority: Liability of Physicians and Managed Care Organizations.
Russell Korobkin (UCLA) uploads The Failed Jurisprudence of Managed Care, and How to Fix It, forthcoming in the UCLA Law Review.
Hoosier Take on the Confirmation Wars The excellent Indiana Law Blog has a two part series on the Senate Rules, filibusters, and the confirmation wars. Part one and part two are now both up.
Welcome to the Blogosphere Bernsteinblog by lawprof David Bernstein of George Mason started on Thursday.
Virtues, Vices, Voices William J. Bennett has done more than anyone in recent memory to put aretaic conceptions of ethics on the table of public political debate. The aretaic turn in moral philosophy goes back to Elizabeth Anscombe's famous article, Modern Moral Philosophy in the late 1950s. Anyone who has attended a recent meeting of the American Philosophical Association will know that the pioneering work on virtue ethics by Philippa Foot and others has come to full flower. A contempoary ethics textbook is likely to divide the world of normative ethics into three broad categories, deontological, consequentialist, and aretaic. If the new reports are to be believed, Bennett has a serious gambling problem--surely reflective of a serious character defect. Not that gambling is a vice. Gambling is simply a form of entertainment, and human flourishing surely requires that we all take a break now and then and have some fun. But losing of millions of dollars gambling cannot be part of a well-integrated life plan--it can only be explained by a serious distortion of character. Randy Barnett has some interested things to say about Bennett in a piece entitled Do Unto Others.
Parliamentary Procedure Department How would a Senate Majority effort to break the Estrada filibuster actually work? Here is an interesting bit from the Washington Times on a technique for an end run around Rule 22's requirement for a two-thirds vote to end debate on a change to the Senate Rules:
Most recently, it was used in 1975 to make it easier to break filibusters. For more than two decades, civil rights legislation had been routinely stalled in the Senate because it was nearly impossible to break filibustering minorities.
Vice President Nelson A. Rockefeller came over to the Senate to preside as president of the body and recognized a resolution to change the Senate's "standing rules" to make it easier to break the filibuster.
Immediately, a "point of order" — or parliamentary objection — was made. Mr. Rockefeller tabled the objection and the resolution was put to a simple up-or-down vote and passed by a simple majority.
"It was an ugly, ugly scene," said Mr. Dove, who was the Senate's assistant parliamentarian at the time.
Confirmation Wars: Some Bits and Pieces Reactions to recent developments in the Confirmation Wars continues to come in from hither and yon. Here are some choice bits:
If that motion failed, each successive cloture motion would require three fewer votes to end debate, dropping the requirement to 57 three days later and then 54 after three additional days. If, after 13 total days of debate, three cloture motions had failed, a final vote to end debate and bring the nomination up for a vote would require only 51 senators or a simple majority of the senators present and voting, whichever is less.
News Hours has a transcript of their segment with Cornyn, Schumer, and others.
Bloomberg reports that Miguel Estrada may have asked that his nomination be withdrawn.
Seth D. Michaels has a nice post raising a number of points, but emphasizing especially Senator Schumer's plan for bipartisan nominating commissions.
E.J. Dionne Jr. argues that the Democrats have confirmed most of Bush's nominees and pushes the Schumer plan in a a Washington Post piece.
Friday, May 09, 2003
New Papers on the Net Here are a few papers, more later:
Paul Stephan (Virginia) uploads Competitive Competition Law? An Essay Against International Cooperation.
J.H. Verkerke (Virginia) offers Legal Ignorance and Information-Forcing Rules. From the abstract:
Thursday, May 08, 2003
Workshop Today At Yale's Legal Theory Series, Susan Silbey (MIT, Sociology/ Anthropology) presents Governing Green Laboratories: Differential Responses to Regulation.
Breaking the Deadlock: Reflections on the Confirmation Wars
The Immediate Context Senator Charles Schumer is clearly the key player. Senator Schumer has changed the nature of the confirmation wars in two fundamental ways. First, he has publicly taken the position that political ideology and not judicial character should be the issue in confirmation of Presidential nominees for judicial office—both on the Supreme Court and on the inferior courts. Second, Senator Schumer has played the filibuster card--first on Estrada and then on Owen. We can quibble about the facts, but one thing is clear. Only one federal judicial nomination has been successfully filibustered—Abe Fortas—and that filibuster had three characteristics that are missing from the Estrada and Owen filibusters: (1) it was about character and not ideology; (2) it was bipartisan, and (3) it was not opposed by a majority of the Senate. Schumer has arguments that his current tactics are merely tit for tat, but I am now absolutely certain that the Republican leadership does not see it that way. They see Schumer’s filibusters as an unprecedented escalation. And in his more candid moments, Senator Schumer actually seems to agree with the Republicans—because Schumer takes great care to argue that extraordinary measures are justified. And so, we are deadlocked, we are deadlocked! And the question is Will the deadlock remain?
Would You Rather Switch Than Fight? Of course, one way that the deadlock can be broken is that one side can surrender. I must tell you that I get absolutely no sense that either side sincerely believes that the other is on the verge of surrender. Will the President withdraw his most powerful nominations and submit nominees who have Democratic pre-approval? Will the Democrats back down and discontinue the filibuster of Owen and Estrada? Will the Senate Republican majority simply allow the filibuster to continue and even expand? No. No. And no. No one is in the mood for surrender.
Nuclear Options And that brings us to the nuclear options. What can the Republicans do to break the filibuster? This is really the wrong question. There are really two questions: (1) What can the President do? and (2) What can the Senate Majority do? Here are the options:
The Senate Majority's Options. There are two:
Option Two: Change the Filibuster Rule. And this is the option that became the focus of Yesterday’s hearings. Beneath the courtesy and smiles. Behind the calls for cooperation. Around the corner from a fresh start. It was there. It was in the room. Something radical. Something unprecedented. Some (and I stress the word “some”) Republicans were making a threat. “If you continue the filibuster of Owen and Estrada, we will change the filibuster rule so as to eliminate the filibuster of judicial nominations.”
--Rule XXII.2, provides in relevant part:
A Scenario So imagine the following scenario. The Republican Majority proposes a rule change. Senate Rule XXII is to be amended so as to allow debate to be closed by a simply majority if the Senate is in executive session considering a judicial nomination. Senator Schumer then begins a filibuster of the rule change. The Majority notices a cloture vote. Cloture fails with all or almost all of the Democratic caucus voting against the motion to end debate. And then . . .
A Dramatic Moment And then something truly historic happens. At some point, a Senator rises to make a point of order. Let's not worry yet exactly what point of order. The point of order trigges a ruling from the Chair--something to the effect that Rule 22 itself can be modified by a simple majority, despite the text of the rule. Another Senator rises--asking for a vote to overrule the chair, but the chair's ruling is sustained. It only takes a simple majority to sustain the Chair's ruling on the point of order. Now the way has been paved to go back to the nomination, close debate, and confirm Estrada and Owen.
Why Would This Be Of Historic Importance For two reasons:
Second, and even more importantly, the institution of the filibuster would have been dealt a death blow. Because the parliamentary technique that I have outlined could be used to break any filibuster that a majority was determined to break.
--The Rulings. Second, there is the still formal level of Rulings by the Chair. Rules, as we know, can be interpreted. In theory interpretations are constrained by the text of the rules, but in practice a judge with the necessary will can find a way to bend a rule. The great master of Senate Rule-Bending was Senator Robert Burd in his days as majority leader. Senator Byrd mastered the technique of the Ruling--setting a precedent that allowed him to twist particular rules to his ends. Memories in the Senate are long. The then Minority is the now Majority. They remember. They are well aware that Byrd's techniques can be turned against the Democrats now.
--The Norms. Third, there are the norms--the traditional understandings that give shape and meaning to the words of the rules and rulings. The technical means exist to circumvent the filibuster rule. The Chair could rule that Rule 22 does not apply to itself. The Majority could sustaint the ruling of the Chair. This could be debated. It could be spun. It could be decried, but formally speaking, it would be a Ruling--authoritative under the Rules. That this technique has never been used more than two centuries of partisan strife is evidence that the filibuster is supported by a powerful norm.
--The Filibuster Norm. The norm has been that filibusters may be only be broken by means authorized by the Senate Rules. Although there is an expectation that Senators will cooperate to change the Rules when necessary, the Majority must get voluntary cooperation. It may not force a rule change down the throats of a determined minority that has 34 votes. The Senate majority is threatening to violate this norm as retaliation for Senator Schumer's violation of the confirmation norm.
And After That? But chaos is not a stable equilibrium. Something would have to give. And this brings us to the fundamental difference between the Senate and the House. The Senate operates on the basis of cooperation generated by powerful norms. Yes, Senators fight and filibuster and fuss, but in the end they obey certain unstated rules. In the end after they have made their point, they cooperate. If those norms of cooperation broke down in the dramatic fashion that I have described, the fundamental nature of the Senate would change. The Senate would have to become the House. And the House is fundamentally a dictatorship. The House rules permit the majority leadership to silence the minority. The House rules operate on the principle that someone must have the raw power to maintain order. If the Senate's norms of cooperation were to break down, then the Senate Majority would be forced to grant its leadership dictatorial powers--or to put it less dramatically, the power to control the agenda and to decide who can speak and who must be silent.
End Games and Exit Strategies And now we are in a position to appreciate just how extraordinary Senator Schumer's actions have been. And we now can see just that the implied threat made at yesterday's hearings was just as extraordinary. But here is the part that I can't figure out. What is the plan for the end game? What are the exit strategies? And I am quite worried. Because I am not confident that this high stakes game of chicken is a contest between drivers with nerves of steel and the instinct to pull away just before the collision becomes inevitable. I am worried that this game of chicken is being played by big egos with hot tempers and frayed nerves.
Wednesday, May 07, 2003
Brett Marston on the Confirmation Wars Hearings For another take on the hearings, see Marstonalia here. My blow-by-blow account is here.
Constitutional Law Blog Greg Goelzhauser's blog has a new name, Strict Scrutiny, and a new focus on Constitutional Law.
Farrellblogger is Now Gallowglass Henry and Maria Farrell have moved from Farrellblogger to a new site: Gallowglass. Here is a nice bit from their new blog: "A big name professor is someone who can "get away with saying dismissable things that won't be dismissed."--an earlier version of this aphorism comes form Invisible Adjunct.
Tushnet Takes on Balkin Which Tushnet you may ask? Find out here.
New Papers on the Net Here is the roundup:
Robert Hillman (UC Davis) posts The Hidden Costs of Lawyer Mobility: Of Law Firms, Law Schools, and the Education of Lawyers, forthcoming in the Kentucky Law Journal.
Gabriel Chin (Cincinatti) posts Race, The War on Drugs, and the Collateral Consequences of Criminal Conviction, forthcoming in the Journal of Gender, Race & Justice.
James Rasband (BYU) offers Priority Matters: Lessons from Tort Law for Proving Causation of Wildlife Harm and Allocating ESA Responsibility Between Water Users, forthcoming Environmental Law.
Derek Jinks (St. Louis) offers State Responsibility for the Acts of Private Armed Groups, forthcoming in the Chicago Journal of International Law.
Jacqueline Hodgson (Warwick) offers Hierarchy, Bureaucracy, and Ideology in French Criminal Justice: Some Empirical Observations, forthcoming in the Journal of Law and Society.
Peter Vincent-Jones (Central Lancashire) uploads Regulating Government by Contract: Towards a Public Law Framework?, forthcoming in the Modern Law Review.
Oren Bar-Gill (Harvard, Society of Fellows) and Gideon Parchomovsky (Harvard, Olin Center and Penn) post The Value of Giving Away Secrets.
Sara Benesh (Wisconsin) and Malia Reddick (American Judicature Society ) post Overruled: An Event History Analysis of Lower Court Reaction to Supreme Court Alteration of Precedent, forthcoming in the Journal of Politics.
Hasen on the Big Picture--McCain-Feingold (BCRA) Be sure to check out Rick's post synthesizing his reactions to the BCRA decision. Update: I've now read Rick's summary--concise, clear, and cogent.
Lecture Today At Balliol College, Oxford, Richard Rorty presents the Oliver Smithies Lectures. His lecture is entitled: Analytic Philosophy and Narrative Philosophy.
Tuesday, May 06, 2003
Blogging from the Senate Judiciary Hearing Room
The Hearing Begins John Cornyn is the very model of the modern southern Senator. Tall, high forehead, white hair, a smooth media friendly voice. He brings the hearing to order. He begins by saying that the process is broken: “I believe we need a fresh start in the United States Senate. And I hope that fresh start will begin today.” Feingold and Kennedy are seated to the left of Cornyn. Feingold smiles at Cornyn’s remarks, while Kennedy studies his notes intently. Cornyn continues, “This week the Senate will mark a rather dismal anniversary. Two years have passed since President Bush submitted his first class of nominees, and many of those have yet to have a vote.” Cornyn argues that supermajority rules—because they are contrary to the principle of majority rule—must be expressly stated in the Constitution. But what about the filibuster? Properly used, Cornyn continues, the filibuster can be a good thing, but the current filibusters of Estrada and Owen are an abuse.
The Fortas Episode And now Cornyn turns to the filibuster of Abe Fortas. This is clearly the important precedent. Why aren’t the filibusters of Estrada and Owen simply a repeat of the Fortas episode? Cornyn answers that the filibuster of Fortas can be distinguished on two grounds: (1) it was bipartisan, (2) there was never a majority of the Senate that voted in favor of cloture.
Feingold’s Turn Senator Feingold moves pass the pleasantries and acknowledges that the tempers are short and nerves raw because of the confirmation wars. Feingold argues that the confirmation wars are just politics and are not of constitutional dimension. He recites the list of Republican filibusters of various Presidential nominees—the small number where the nomination was defeated and the large number where a cloture vote was forced. And Feingold argues that the solution is for the President to send “moderate” and not “extreme” candidates to the Senate.
And Now Ted Kennedy Has The Floor And he is, of course, already a figure of historic importance. He begins his remarks with history. The Randolph plan provided that the Senate would appoint judges. The alternative, sole Presidential power, found to support. Madison offered a motion to give the Senate the sole power to appoint judges, and this time the motion was adopted. The issue went back and forth. “Not until the final days of the convention was the President given the power to nominate the judges.” Kennedy’s voice becomes very loud now: “The debates make clear that the Senate would have a central role in the selection of judges.” The founders did not, Kennedy concludes, want the Senate to be a mere rubber stamp. “Our earliest predecessors rejected a rule that provided for motions to close debate—any motion to close debate. For 111 years, unanimous consent was required to close debate.” We are now in a situation where the President has demonstrated that he will appoint judges who share the administration’s right wing ideology. The President has no mandate.” Kennedy puts his glasses down. His voice grows softer. He says that he is eager to work with his colleagues to improve the process.
Senator Schumer Takes the Floor “Where is the crisis?” Schumer asks? “Of 123 judges that have been brought to the floor, 121 have been approved. I’ve voted for 113 of 120. This idea of obstruction is taking language and twisting it.” It is not the first filibuster, Schumer, argued. It is just the first successful filibuster. “Let’s go to the Constitution itself. I’ve never heard it suggested that the filibuster is unconstitutional. We are the ‘cooling saucer’ for ideas hot from the House. Schumer holds up a copy of the Constitution. There is nothing in here about filibusters. Schumer raises his voice: “My fellow New Yorker Alexander Hamilton was concerned about mobocracy.” When you read the debates of the constitutional convention, you find that the framers leaned to the supremacy of the legislative branch. Now Schumer refers to his op/ed piece on the role of ideology in judicial selection. His says judges should possess “legal excellence, moderation, and diversity.” On one and three, says Schumer, President Bush has done an excellent job. If you think ideology should not play a role, let’s look to history. In 1795, President Adams nominated Rutledge criticized the Jay treaty. Schumer says, “It was the Jay treaty that caused them to vote the Rutledge nomination down, 14-10. A majority of them were founding fathers.” The Senators of the first Congress made clear that political views were an appropriate part of the process. More recently, Schumer argues, ideology became less important, during the Truman and Eisenhower administrations. Then came the Warren Court and conservatives criticized its decisions. But in the Nixon administration and after, ideology began to become more important. Although the official reasons for voting against nominees might be that they smoked marijuana, under the table it was all ideology. “Clarence Thomas should have been debated strictly on the basis of ideology.” Schumer says that he began arguing to his colleagues that ideology should be brought out in the open. Yes, we are in deadlock, but this was brought on by the President who has chosen to nominate candidates in the mold of Scalia and Thomas. “Clinton did not do that.” Bush’s nominees have been hugely ideological. It was when Miguel Estrada refused to answer questions, that is when the Democratic caucus got together and said, “This is enough of this.” Estrada invoked the 5th (Canon Five, that is), and the Democrats said, “Enough.” And now there is a very dramatic moment. You can hear the emotion in Schumer’s voice as he says, “We are deadlocked. We are deadlocked. The deadlock will remain.” Senator Schumer argues that the Republican plans would require the Democrats to waive a white flag—unilateral disarmament. Senator Schumer then reviewed his plan—bipartisan nominating commissions. Everyone in the room knows that this plan--which would take the appointments power away from the President--is D.O.A.
The White House Weighs In Senator Cornyn was just handed a statement from the White House. He reads a bit, which predictably says that the Senate should vote on the President’s nominees. Throughout the afternoon, the Executive Branch is the dog that didn't bark. It is almost as if the President weren't involved in the issue.
Senator Spector And now Senator Spector takes the witness chair. His voice is clear, slow, and deliberate. “I attribute the bickering to both parties,” says Spector, reciting the history from Reagan, George H.W. Bush, and Clinton. “This is the first time that I’ve been on this side of table since 1966, he says, and that was before Senator Hatch was here. This draws a smile from Hatch. From 1995 to 2000, many worthy nominees were not confirmed. It was a very contentious time. When the Democrats took back over, it was “payback time. And the payback occurred. And it was exacerbated. The table stakes were raised very seriously when we had the filibuster for the inferior courts. The only occasion before was Fortas, which was bipartisan involved the issue of integrity.” The war has been going on for a very long time, and it is time to restore the status quo bellum—before the war started.” Now Senator Spector talks about his proposal that judicial nominees ought to go the floor, even if voted down in Committee—if the vote was along strict party lines. “When we deviate from existing principles,” says Spector, “we do so at our peril. There is not doubt that the partisanship is at a very very high pitch.” Spector says that he puts his votes where his mouth is—he worked for Democratic nominees, such as Bill Lan Lee. Now he begins to speak about the Clarence Thomas case. That was very difficult, “but there was no filibuster. So it is a little hard to see why we have come to a filibuster on Miguel Estrada—who is superbly qualified.” And Owen—in a different era there would never have been a serious challenge to her nomination. And there are in the wings some “nuclear proposals.” One line of exacerbation begets another. “It is my hope that perhaps the time will be right in 2004, when there is some uncertainty as to who the next President will be” to create a new system. Does Spector believe this is possible or is he just posturing? He leaves as he entered, a quixotic figure.
Senator Miller’s Proposal Miller isn’t at the hearing, but Cornyn discusses his proposal, which provides for a graduated decreasing vote threshold for cloture—60 votes on the first cloture motion, then 57, and so forth until it is 51. This proposal was actually first made by Democrats Harkin and Lieberman several years ago. The Miller plan sinks out of sight--we do not hear about it again.
John Eastman The drama drains out of the hearing. We are back to the routine. Professor Eastman (Chapman) relates some of the history of the filibuster—which he argues has been less public than it should be. He is not against the filibuster, per se, but there is a distinction between the use of filibuster to enhance debate as opposed to abuse of the filibuster to block action. The use of the filibuster in the judicial confirmation process is different than in the legislative context, and the Senate should consider modifying Rule 22 to limit the filibuster. He then argues that filibustering such a rule change is unconstitutional. This is all quite rushed—the witnesses have only five minutes. Finally, Eastman argues that Presidential appointment is the most effective check on the power of the judiciary.
Bruce Fein Fein starts with the hot tamale—the anticipated vacancies on the Supreme Court. Hen then argues that long historical practice does not settle constitutional questions—citing, for example, Erie R.R. v. Thompson. And on moderation, Fein says, “Moderation is in the eyes of the beholder.” Fein cites the opposition to the nomination of Louis Brandeis, who was opposed as a radical. Fein then says the constitutionality of the filibuster should be treated differently for judicial nominations that for other reasons. Oops, time is up, just as Fein is about to discuss Estrada and Owen.
Michael Gerhardt Gerhardt is, of course, the author of The Federal Appointments Process. Gerhardt focuses on the constitutionality of the filibuster. The appointments clause sets forth the necessary conditions for judicial confirmation. It says nothing about the specific procedures used. Gerhardt argues that the argument that the advice and consent clause makes filibusters unconstitutional would lead to the consequence that every nomination should come to a floor vote—contrary to the settled practice of the Senate.
Marcia Greenberger Greenberger says that filibuster is not a problem—it is simply advice and consent. The problem is the President’s nominees. Instead of coming up with consensus nominees, the President is coming up with candidates with extreme views. In the case of Priscilla Owen, her record has shown her position in one case constituted an “unconscionable act” obstructing the right to choice. She went on to make sound bite sized indictments of several controversial nominees. Greenberger is almost out of control--several times during the hearing she interrputs Senator Cornyn--who pretends this breach of etiquette has not occurred. Whether she knows it or not, her anger is palpable.
Doug Kmiec Kmiec is calm and impressive. He is a presence and the room perks up as he speaks. Kmiec says there are four issues: (1) It is constitutionally appropriate to consider ideology in the process; there is no legal barrier to consideration of ideology. Kmiec says let’s put that aside. (2) It will not help to resolve the confirmation wars to debate the nominees. (3) Is the filibuster of judicial nominees itself constitutional? (4) Is the entrenchment of the filibuster rule constitutional. Kmiec notes that Senate Rule amendments require 67 votes—thus entrenching the filibuster. (He has clearly made a tactical mistake--with only five minutes, he should have gone straight to issue 4.) Kmiec note the Senate rules are carryover rules—not adopted by the current Senate, but “Every legislature possesses the same jurisdiction and power as its predecessors.” Kmiec gets lucky, and in questioning he is able to say enough about four to get his point across clearly.
Stephen Calabresi Steve Calabresi, moving at speed, reviews the history of the filibuster—emphasizing the role John C. Calhoun played in the development of the filibuster and the role the filibuster played in the resistance of southern Senators to civil rights. Calabresi then argued that judicial filibusters are a bad idea, because: (1) they undermine the President, (2) they undermine the confirmation process, and (3) it does not serve a good purpose—given that only a single judgeship is at stake. Calabresi then argued that Rule 22 to the extent that it requires a two-thirds vote to cut off debate on a rule change is unconstitutional.
Interlude At the end of the Panel discussion, one had the sense that most of what was said was simply beside the point. Kmiec was impressive. Calabresi and Gerhardt were scholarly, but wiht five minutes each, they couldn't get much out and they tried to get out more than they could get over. Others were in attack dog mode, and no one was paying attention.
Some Points from the Questioning Period
--Senator Cornyn asked Doug Kmiec and Steve Calabresis to further explain their arguments that Rule 22 is unconstitutional—insofar as it entrenches itself against repeal or modification by a simple majority.
--Gerhard interjected at this point, and argued that Rule 22 was constitutional, citing the example of Sunset laws. This was followed by a good deal of back and forth on this issue.
--Greenberger argued that respect for Rule 22 was required by the rule of law.
--Senator Durbin made the “continuing body” argument—that the Senate never readopts its rules. He then suggested that there is no way out. The President will not surrender. And it will happen again. “We live in a closely divided nation, with a closely divided Senate, and a closely divided judiciary.”
--Senator Feingold make a very emotional statement to the effect that Republicans and not Democrats have been extreme. Cronyn makes a plea to put the past behind the Committee. Feingold says that things cannot go forward with the correction of past wrongs.
--Senator Schumer reentered the room toward the end of the day. And once again, the emotional level went way up. He began to focus on a comparison of the ideological extremity of Clinton nominees versus Bush nominees, arguing that Bush’s are extreme and Clinton’s were moderate.
--Bruce Fein argued that ideological extremity is fine, citing the historical precedent of Roosevelt’s extreme new deal appointees.
--Senator Schumer pressed the question whether filibustering judicial nominees could be distinguished from committees. Steve Calabresi then tried to discuss the difference between committees and the self-entrenchment of Rule 22. Senator Schumer then went wild, suggesting that Steve was insincere. Frankly, at this point, I think Schumer was confused. Once he understood the argument, then Schumer backed down. Doug Kmiec was the one who managed to clear this up. Greenberger jumped in at this point, but she had been inadequately briefed and started to misstate the substance of Rule 22. Read the Rules!
Second, I think the most important testimony came from Doug Kmiec and Steve Calabresi. Both of them focused on Rule 22. They both argued that Rule 22 is unconstitutional to the extent that it entrenches the filibuster rule. They both argued that the cloture rule can be modified by simple majority vote. Why did these emphasize this? The reason is obvious. There is tremendous frustration within the Majority on the Judiciary Committee. The question is, “What can the Majority do?” The recess appointments clause is off the table as far as the Senate Majority is concerned. That ball is in the President’s court. So the Senate Majority has only a few options. Here are two:
Option Two: Amend the Cloture Rule: The Majority can amend the cloture rule to permit debate on a judicial nomination to be cut off with a simple majority.
How Appealing Is One Break out the cake and candles! Get out the video cam! Howard Bashman's wonderful How Appealing is one year old today!
Filibusters, Blueslipping, and the Advice & Consent Clause Here is the letter I sent to the Senate Judicary Committee in connection with their hearings today:
I am writing with respect to the issues to be raised at the Hearings on Judicial Nominations, Filibusters, and the Constitution: When a majority is denied its right to consent, set for hearing on Tuesday, May 6, 2003 at 2:30 p.m. I am a Professor of Law at the University of San Diego, and have taught law for eighteen years, variously at Boston University, Loyola Marymount University, and the University of Southern California as well as in my current capacity at the University of San Diego. I have published more than 35 scholarly articles and two legal treatises, and I am widely recognized as an expert in constitutional law and theory. I approach this issue without any partisan agenda; I hold no brief for or against any of the President’s nominees for judicial office. Rather, I write in support of a rededication to the rule of law.
I write out of concern for the downward spiral of politicization that has characterized the recent history of nominating and confirming candidates for judicial office. No good purpose is served by assessing blame for the confirmation wars. Some might point to the defeated nomination of Abe Fortas for the position of Chief Justice as a starting point. Others would identify Democratic opposition to Clement Haynsworth, Jr. and G. Harold Carswell as escalatory moves. The defeat of Robert Bork, the confirmation hearings for Justice Clarence Thomas, the obstruction of several of President Clinton’s nominees, and the current situation, including the filibustering of Miguel Estrada and Priscilla Owen, are all part of a long and complicated story, in which there is plenty of blame, miscommunication, and misunderstanding to go around. Setting blame aside, however, one conclusion is quite clear. The judicial selection process has broken down, and things may get worse before they get better. Already there is talk of wholesale use of the President’s power to make recess appointments, and the filibustering of additional nominees. If the confirmation process has broken down when only vacancies on the District Courts and the Courts of Appeals are at stake, how will things go when vacancies on the Supreme Court of the United States are at stake?
What is the constitutional responsibility of the Senate with respect to advice and consent? The United States Constitution Article II, Section 2, Clause 2, provides that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” The phrase “advice and consent” is borrowed from the laws of Great Britain where it was used to describe the consultative relationship between Crown and Privy Council. It is still used today in the law of the United Kingdom and of several commonwealth nations. The original plan for the Senate’s role in appointments was for the Senate to act in an executive role—as the President’s council of state.
In this regard, it is instructive to consider President George Washington’s view of the proper mode of interaction between President and Senate on appointments matters. President Washington wrote:
Make no mistake. I do not argue for a return to President Washington’s interpretation of the advice and consent clause. History has forged the Senate into the vibrant institution it is today, and no one would wish the clock rolled back to 1789. Nonetheless, President Washington’s understanding of the proper role of the Senate is relevant today. Every member of the Senate swears an oath solemnly swearing to “support and defend the Constitution of the United States.” When the Senate orders its internal procedures and when individual Senators discharge their duties upon the floor of the Senate Chamber, their actions are not subject to judicial review. The Senate has the sole power to adopt its own rules. Individual Senators have the sole responsibility to discharge their office in accord with their oath. But the absence of judicial review does not imply a constitutional vacuum. The Senate must review its own rules for their constitutionality. Individual Senators must review their own actions in light of the Oath they take to uphold the Constitution.
So the question that the Senate should address at these hearings is whether the withholding of advice and consent from the President for a protracted period—in some cases, for more than two years—comports with the United States Constitution. This is not a difficult question. If Senators take their oaths seriously, then they must ask themselves, does the Constitution impose upon us any affirmative duties in consequence of our constitutional role in advice and consent? Once asked, the question answers itself. Senators have a duty to give advice and then to either grant or withhold consent. This is an obvious and direct consequence of the language of Article II, Section 2, Clause 2. This question leads to another. Given that the Senate has an affirmative obligation to give advice and consent, is it consistent with that obligation for the Senate to refuse to act on the President’s judicial nominations for an indefinite period, waiting until after the President leaves office to fulfill their constitutional duty? Again, the question answers itself. The constitutional duty to give advice and consent cannot be fulfilled if the Senate were to wait until the President leaves office to give him advice and either grant or withhold consent. And this question leads naturally to another. Given that the constitutional duty to give advice and consent must be fulfilled in a timely fashion, may the Senate structure its internal rules so as to give an individual Senator or group of Senators to power to delay advice and consent indefinitely? And for a third time, the question answers itself. If there is a duty to give advice and consent in a timely fashion, it is clearly inconsistent with that duty for the Senate to grant to individual members the power to delay advice and consent indefinitely. From the constitutional duty of advice and consent, it follows that the Senate has a duty to act on the President’s judicial nominations in a reasonable and timely fashion.
The Senate and individual Senators have an obligation to uphold the Constitution of the United States. Because the internal rules of the Senate are not subject to judicial review, the Senate itself must review its rules for their constitutionality. A rule of the Senate that permits individual Senators—by exercise of Senatorial privilege or prerogative—to delay indefinitely advice and consent is unconstitutional. Although no Court may so hold, the Senate itself has an obligation to review its procedures for their constitutionality. If the Senate finds that it is not in compliance with the Constitution, it has a constitutional obligation to correct its procedures.
What does this mean in practical terms? It means that the Senate has an obligation to give the President advice and consent on his nominees for judicial office in a timely fashion. The Constitution does not prescribe a period of days in which the Senate must act. President Washington thought that the President could set the timetable, summoning the Senate to his office at the time of his choosing. A more reasonable view is that the Senate should act in a reasonable time. At the outer limit, this means that the Senate should give advice and either consent to a nomination or vote it down within the Session during which the nomination was made—excepting, of course, nominations made too close to the end of the session for timely action. The delay of a nomination for a period exceeding one Session is clearly inconsistent with the Senate’s duty to give timely advice and consent. Of course, it is up to the Senate to determine what rule is most practicable within the outer boundaries of its constitutional duty. The Senate might adopt a rule calling for action within a period of days (sixty or ninety) or before the end of the Session, whichever comes first. Or it might adopt some other reasonable rule.
Having established the constitutional duty of the Senate, I should perhaps address an obvious question: is not the exposition of the Senate’s constitutional obligations an idle exercise, given that no other branch of government or House of Congress has the power to compel the Senate to act constitutionally? This is a question of no small moment, and the members of the Senate are in a far better position to answer this question than am I. There is, however, one observation that I can and should make. The President is not without remedy if the Senate does not fulfill its constitutional responsibility. Article II, Section 2, Clause 3 of the Constitution provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Starting with George Washington, Presidents have made recess appointments to the judiciary, including the Supreme Court. In modern times, Chief Justice Earl Warren and Justice William Brennan first assumed their respective offices as recess appointees. For more than one-hundred years, the fixed practice of the President, accepted by the Congress, has been to make recess appointments for vacancies that begin while the Senate is in Session but continue to “happen” during a recess. If the Senate does not fulfill its constitutional duty to provide advice and consent in a reasonable and timely fashion, the President has the option to make recess appointments to allow the continuing functioning of the judicial branch. It would not be wise for a President to take this course lightly. But if the Senate demonstrates a persistent disregard for its constitutional duty to give its advice and consent in a reasonable and timely fashion, the President may have no other option. The President is not obligated to cower before a minority of the Senate and nominate candidates of their choosing.
This brings me to my final topic. The confirmation wars represent a constitutional failure, but they are symptomatic of a greater ill. The downward spiral of politicization that has characterized the judicial selection process is part of a larger problem—the politicization of the judicial branch itself. When judges decide on the basis of the law and eschew decisions based in partisan politics and personal ideological preferences, then confirmation is not a difficult business. If the President nominates judges who possess the judicial virtues—judicial intelligence and wisdom, judicial courage and temperament, and above all justice—then confirmation should follow as a matter of course. But it has become apparent that the federal bench itself has become politicized. When federal judges decide cases politically, then it is inevitable that the judicial selection process will be politicized. Presidents of both parties naturally come to see the power to nominate Supreme Court Justices as a great political prize. Senators just as naturally come to believe that blocking such judicial nominees is ordinary politics. And this tendency is self-reinforcing. The more political the selection process, the more political the judges who endure that process.
In the long run, ending the confirmation wars will require more than a change in the rules of the Senate. In the long run, ending the confirmation wars will require a rededication to the value of the rule of law. If judges are selected for their politics, then confirmation will be political. If judges are selected for their dedication to the rule of law, then confirmation can be relatively nonpartisan. Indeed, some partisanship is healthy for the confirmation process, as the party out of the Presidency tests and probes judicial nominees for defects and weaknesses. But healthy partisanship does not require confirmation wars.
Sincerely yours, Lawrence B. Solum
Blogging from the Senate I will be blogging later today from the Hearing before the Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Property Rights United States Senate on “Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent.” The witness list includes Senator Arlen Specter, Senator Charles Schumer, Senator Zell Miller, Steven Calabresi (Northwestern), John Eastman (Chapman), Bruce Fein (Fein & Fein), Michael Gerhardt (William & Mary), Marcia Greenberger (National Women’s Law Center) and Doug Kmiec (Catholic University).
Daniel Faber's New Book, Lincoln's Constitution Dan Farber (who is so smart and productive that it is scary) has a new book out. Here's an abstract:
Download of the Day Department Victor Fleischer (Columbia) and Jeffrey Kahn (Santa Clara) have uploaed A Taxing Blog: The Uneasy Case for Blogging Taxation. Uneasy? Pshaw!
New Papers on the Web Here is today's roundup:
Catherine Harris (Wake Forest, Sociology), Ralph Peeples (Wake Forest, Law) and Thomas Metzloff (Duke) upload Who Are Those Guys? An Empirical Examination of Medical Malpractice Plaintiffs' Attorneys.
Deborah Hellman offers Judging by Appearances: Professional Ethics, Expressive Government and the Morality of How Things Seem, forthcoming in the Maryland Law Review.
Robert Chesney (Wake Forest) has give us Civil Liberties and the Terrorism Prevention Paradigm: The Guilt By Association Critique, forthcoming from the Michigan Law Review.
Brandice Canes-Wrone (MIT) and Scott de Marchi (Duke) upload Presidential Approval and Legislative Success, forthcoming in the Journal of Politics.
Mitchell Seligson (Pittsburg) posts The Impact of Corruption on Regime Legitimacy: A Comparative Study of Four Latin American Countries, also in the Journal of Politics.
Jim Rossi (Florida State) offers Beyond Goldwasser: Ex Post Judicial Enforcement in Deregulated Markets forthing coming in the Law Review of Michigan State University - Detroit College of Law.
Louise Davies (Lancaster) has made available Technical Cooperation and the International Coordination of Patentability of Biotechnological Inventions, forthcoming in the Journal of Law and Society.
John Gastil (University of Washington), E. Pierre Deess (New Jersey Institute of Technology) and Phil Weiser (Colorado) offer Civic Awakening in the Jury Room: A Test of the Connection between Jury Deliberation and Political Participation, forthcoming in the Journal of Politics.
Miriam Gur-Arye (Hebrew University, Felt Center) uploads Legitimating Official Brutality: Can the War against Terror Justify Torture?.
Francis Joseph Mootz (Pennsylvania State University) posts Nietzschean Critique and Philosophical Hermeneutics, forthcoming in the Cardozo Law Review & A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.
Jihong Lee (London, Economics) posts Precedents and Timing: A Strategic Analysis of Multi-plaintiff Litigation.
Rod Dixon (Rutgers, Camden) offers Breaking into Locked Rooms to Access Computer Source Code: Does the DMCA Violate a Constitutional Mandate When Technological Barriers of Access are Applied to Software?, forthcoming in the Virginia Journal of Law & Technology.
Aviam Soifer (Boston College) posts Rethinking Fairness: Principled Legal Realism and Federal Jurisdiction, forthcoming in the New York Law School Law Review.
George Brown (Boston College) uploads New Federalism's Unanswered Question: Who Should Prosecute State and Local Officials for Political Corruption?, forthcoming in the Washington and Lee Law Review.
Workshops & Lectures Today Here is the roundup:
At the Cambridge Forum for Legal and Political Philosophy, Richard Rorty presents Is Moral Theory Trapped Between Kant and Darwin?.
At the University of Chicago's Olin series, Joe Bankman (Stanford) presents Who Should Bear Tax Compliance Costs? Here is a taste from the introductiohn:
Monday, May 05, 2003
New on SSRN Here is the roundup of recent papers from SSRN:
Workshop Today At Oxford's Seminars on Moral Philosophy, Nathan Holcomb (Oxford), 'Regarding oneself as free'.
Sunday, May 04, 2003
I'm gonna get high, high, high, or deconstructing the up-down distinction revisited. "Danger, Danger, Danger," lights flash, and the robot's arms rotate wildly, "Danger, Will Robinson!" This is a warning. It may be hazardous to read beyond this point. The remainder of this post is for mature readers only. If you are a law student or judicial clerk, please stop now. I mean it:
The Blame Game Jack Balkin has been writing about the confirmation wars on Balkinization. He recently has been in an exchange with Juan Non-Volokh that plays the blame game. Who is at fault for the blueslipping, filibustering, and character assasination? Jack argues that the Democrats are not at fault. Juan acknowledges fault on both sides, but says that the Republicans are not worse than the Democrats. Before I go any further, I want to suggest that this is not a productive conversation--unless you would like to encourage the downward spiral of politicization that has characterized the judicial nomination and confirmation process, for decades really, but especially for the last ten years or so. But then Jack made a most extraordinary move. A remarkable move. A stunning move. But an entirely predictable move. Balkin argued that the Democrats were justified in escalating the confirmation wars because of Bush v. Gore. Predictable, because surely we all know that Bush v. Gore was lurking in the background. Stunning, because it was combined with arguments that suggested that the Democrats weren't escalating at all. Bush v. Gore was an unprincipled political decision. George W. Bush was not really elected President. Bush, therefore, lacks legitimate authority to appoint judges. And therefore Democratic obstruction of the confirmation process is justified.
The Up Down Distinction Here is where it gets interesting. Juan Non-Volokh responded to Jack Balkin's Bush v. Gore argument as follows:
The Political Questions Doctrine Well, here's one thing it can't mean. It can't mean that the Court should stay out of politics. Because staying out of politics altogether would mean overruling Baker v. Carr and one person, one vote. Because staying out of politics altogether would mean abstaining from free speech cases if an election were involved. Balkin is surely not arguing for the old-fashioned stay-out-of-politics version of the political question doctrine.
High-High and Low-High And here's another thing. The high/low distinction isn't fine grained enough. We need a more sensitive typology. Because Supreme Court opinions aren't just about "values and ideologies," they are about results. Supreme Court opinions change the world. And therefore, there are two different kinds of high politics. There is the kind where the constitutional values that you truly believe in support the results that you want--let's call that kind of high politics high-high politics. And there is the situation where the result that you want would require you to articulate a principle that you generally oppose. Let's call that low-high politics.
An Example: Freedom of Speech And let me give an example, so that all of this is clear. Suppose that you generally believe in the freedom of speech. You believe in something like the Brandeis position in Whitney. You believe that dangerous speech should be allowed, so long as there is time for "more speech." Now, there will be cases where that constitutional value will produce results that you like. For example, a group of war protestors is demonstrating and they are using powerful rhetoric that includes threats of violence, but there is time for more speech--the harm is not imminent. So as a judge, you could write a high-high opinion. You deploy the principle you believe in to get the result you want. But now suppose that you are faced with a different case. You have a hate speech regulation in front of you. Your usual principle would result in deciding this case against the hate speech regulation, but you don't want that outcome. And so you need to use a different principle. One you usually don't like. You say that hate speech produces "direct injury," and uphold the regulation, and you write a low-high opinion.
High-Low and Low-Low And the same thing goes for low politics. Judges have to decide election law cases. When a judge decides an election law case that favor's the judge's own party but does so on the basis of a general constitutional value that the judge would apply even if it favored the other side, the judge has engaged in high-low politics. Surely, there's nothing wrong with that. Judges more or less have to do that. It comes with the territory. Elections involve legal issues, and therefore judges must decide election law cases. And when they do, sometimes thier decisions will favor the party that they favor. So not all low politics is a bad thing: high-low politics is just fine. What is objectionable is low-low politics. A decision is . . . I know you are still reading. You really don't want to go any further. You won't like what comes next. How about going out for coffee? Or studying? Do something. Do anything. Just don't read any futher.
Low-Low As I was saying, what is really objectionable is low-low politics. A decision is low-low when a judge decides for her own party on the basis of a constitutional value that she doesn't endorse as a general principle. A ha! Now, we are making progress. Everyone should agree that high-high decision-making is perfectly fine--who can fault a judge for reaching the outcome she prefers on the basis of general principles she endorses. Brown v. Board was high-high. And everyone can agree that making a decision that favors one's own party on the basis of constitutional values one generally does not endorse is a very bad thing. Bush v. Gore was low-low. High-high = go go. Low-low = no no. What about low-high and high-low? I don't know! Maybe, go slow? Maybe, no go?
But Wait! There's More . . . At this point, we have been looking at two dimensions of judicial decision making. The first dimension is constitutional value and ideology. The second dimension is partisan political advantage. But there is a third dimension. Sometimes one's ideology and values are supported by the law--by the text, history, and precedents. Sometimes one's ideology is opposed to those things. So we need to add yet a third dimension to our typology. Here we go.
High High High and Low Low Low So there are actually two kinds of high high decisions. There are high high high decisions, where the law supports the constitutional value that leads to the outcome you favor. But there are also low high high decisions, those where you must bend the law to get to the values that lead to the results that you favor. And likewise, there are two kinds of low low decisions. There are high low low decisions--those where the law supports the value you don't endorse that leads to an outcome that favors your own party. Actually, high low low doesn't sound quite so bad. But that brings us to the really important category. This is where we are going to get to the "cash value" of all of these conceptual distinctions. Don't think I don't know that you are still here. But now I'm really serious. You don't want to read what comes next. It will be distracting, and you may not sleep at night. You need your rest. This time I really mean it. Stop reading now. Or else!
Low Low Low As I was saying, the really important category is low low low politics. Low low low is when a judge decides contrary to the law and on the basis of values that the judge doesn't believe in, in order to reach a result that favors the judge's own party. The problem with Bush v. Gore is that it was low low low. Those judges were acting contrary to the law; they were acting on the basis of an equal protection theory they didn't believe in; and they did those things in order to favor their own party. That was bad. Real bad. And now, we have a set of distinctions that we can work with. High high high = go go go. Low low low = no no no. Low high high or low low high or low high low or high low high or high high low? It's hard to say. I just don't know. Maybe, go go slow? Maybe, no no go?
Oops, I Forgot We Were Talking About Law How embarassing! Especially, with me being a law professor and all. What a bunch of absolute nonsense I have been spouting. We've just built a nice three-dimensional binary matrix, but only one of the binary pairs is worth the binary code its written in. What matters about judicial decisions in election law cases is not whether the judge was appointed by the winners or the losers. What matters about about judicial decisions in election law cases is not whether the judge believes in the ideology or value that supports her decision. Only one thing matters. What matters is whether the decision was made on the basis of the law. An ideologically consistent decision that runs contrary to the law is not somehow made virtuous by the fact that it disfavors the party of the judge who rendered it. An ideologically inconsistent decision that conforms to the law is not somehow made vicious by the fact that it favors the party of the judge who rendered it. The correct-making feature of judicial decisions is lawfulness.
Back to Balkin Balkin's move in response to Non-Volokh was to invoke the distinction between high politics and low politics. But that was the conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics. And that leads to me to one more thing. Maybe the most important thing.
I want to get high high high Don't we all? I want judges to make decisions that are legally correct, that favor my ideology, and that lead to the outcomes I want. I wish every judge would get high high high. But here's the deal. That's not the way that law works. Not all constitutional stories have happy endings. A whole lot of the time, the legally correct decision is inconsistent with my values or leads to a result that I don't like. I wish it were otherwise, but it's not. There are two responses to this tragic fact. You can try to wish it away. Or you can learn to live with it.
I told you that you wouldn't like this part.
Now you have to learn to live with it.
Post Script: Jack Balkin responds on Balkinization. Jack's response is thoughtful and eloquent. I will post a rejoinder sometime tomorrow. In the meantime, if you haven't already done so, read the debate that runs back and forth:
Non-Volokh: Confirmation History.
Balkin: A Fight Over Judicial Nominations in Extraordinary Times.
Non-Volokh: Confirmation History-Balkin Responds.
Balkin: Is Bush v. Gore Sauce for the Goose?
Solum: I'm gonna get high, high, high, or deconstructing the up-down distinction revisited.
Balkin: ”High” Politics and Judicial Decisionmaking.
Saturday, May 03, 2003
Update on Filibusters I reported recently on an Atlanta Journal Constitution story, which stated:
Fractured Opinions and the Virtue of Justice What are we to make of McConnell v. FEC? For analysis of the opinions, you should be very cautious about what the mainstream media is reporting. There simply hasn't been enough time to produce really good analysis. The first source of high quality analysis will be Rick Hasen's Election Law Blog. I posted earlier today on McConnell. In this post, I develop in greater depth a theme that was lurking in my earlier post. My reaction is not to the substance of the opinions, but rather goes to the style, form, and jurisprudential orienation of the opinions produced by the three judge panel. When three judges write 1,638 pages of opinions and feel impelled to produce a per curiam chart that outlines their decision, you know that something has gone badly wrong. Of course, this is not the first court to produce a badly fractured opinion. The Supreme Court has been issuing such opinions on a fairly regular basis for at least two or three decades. But why does this happen? And why has it happened more in the contemporary period? Let's begin with . . .
The Meaning of Fractured Opinions in the American Context But fractured opinions have a different meaning given our practice. Our practice is that the Opinion of the Court is the authoritative document that provides the decisional law which guides lower courts and those whose actions are guided by the law. Given that practice fractured opinions produce unpredictability and uncertainty--they undermine the rule of law. Of course, in theory it is possible to determine the narrowest ratio decendi on a particular issue--and to treat that as the holding. But American judges and lawyers are unpracticed at this technique. They have grown use to the legislative style of stating holdings. And so, not unsurprisingly, they do not do well with fractured opinions. In practice, fractured opinons mean fractured law.
Why? The Causes of Fracture What follows is at best a general speculative hypothesis. Fractured opinons have many causes--sometimes highly particularized, sometimes fitting a general pattern. Nonetheless, it is useful to make the attempt to discern general patterns. Here is the pattern that I see. The fractured opinions of American courts result from their neorealist orientation. American judges believe that the law is an instrument, to be used by judges to enact their policy preferences into law. (Of course, this statement is sweeping--not all judges fit this stereotype.) American judges are ideological. The percieve the judicial resolution of politically controversial issues as a political activity.
But why not compromise?, you may ask. Isn't politics the art of compromise? And so it is, when political institutions are designed for compromise! But the courts are not so designed. The courts are designed for a different purpose--the resolution of controversies according to law. Legislatures can roll logs--trading this bit of pork here for that vote over there. Despite the politicization of the judiciary, American judges are not ready for this. So far as I know, there is no documented case of logrolling on the United States Supreme Court, where the judges are long-term repeat players. Judges still have the sense that it would be wrong to trade votes. "I'll give you my vote on the 11th Amendment in exchange for your vote on the Establishment clause." Without logrolling, the incentives for compromise are weak. Why should I compromise my position when I will get nothing in return? This phenomenon is exacerbated by the binary nature of many legal questions. One can't say, "OK, you think liability should exist, and I think it shouldn't. We'll compromise and create a claim that entitles plaintiffs to 46% of their damages." Moreover, at the Court of Appeals level, the judges sit in three-judge panels. Depending on the size of the circuit, the chances that these particular judges will sit together on a regular basis can be very slim indeed. The chances of cross-decision compromise are dramatically reduced given that only a single sittings worth of cases are available for horse trading. In a single sitting, it may well be the case that only one or two cases present the kind of issues that get the blood of political judges racing. Most are likely to be quite dull--implicating only the rights of the parties.
Law's Hypocrisy Here is one way of capturing the gist of the current uneasy situation:
Another Way of Doing Business There is, of course, another way of doing business. Judges could decide on the basis of law and make an earnest effort to put their political preferences aside. That is, the judges in McConnell v. FEC could have done their very best to decide the case before them in the way that was maximally coherent with the decisions of the Supreme Court and the Court of Appeals for the District of Columbia Circuit. And the judges in McConnell could have done their very best to make those findings of fact that were most reasonable given the record--without regard to whether those findings would have supported the outcome they preferred. You may say I'm I dreamer, but I'm not the only one. This is not pie in the sky. Neorealism is not ordained by the fabric of the universe, nor is it the logical consequence of some conceptual truth. Legal instrumentalism is not a deep feature of cognitive psychology or hardwired in the human brain. Politicized judging is not mandated by the iron laws of history. Results orientation is not the end of history--ordained by the either the mysterious unfolding of the Idea or a mindless dialectical materialism. Neorealism is a human practice--a way of doing business, the product of human choice. And there is another way of doing business . . .
Neoformalism and the Judicial Virtues . . . there is another way of doing business. Judges can decide according to law--if they want to. Judges can make findings of fact that are in accord with the facts--if they want to. In many legal cultures, the dominant practice of judging is much more formal than in the United States, while it others judging is even more politicized than here. How could we transform our judicial culture so as to restore the rule of law? That's a big question--far bigger than I can answer meaningfully here. But I can say that the most important step is to select judges who are committed to the rule of law. Or to put the point another way, judges should not be selected for their political ideology. Judges should be selected for their possession of the judicial virtues. What are these? Here is a short and incomplete list:
+Judicial wisdom--judges need legal vision the ability to size up a case and see the important issue, and they need the ability to choose wisely from among the legal options available to them. Judicial wisdom is essentially phronesis, the ancient Greek for what we might call practical wisdom.
+Judicial courage--judges need civic courage. A good judge must care more for getting it right than for the opportunity for promiton to a higher court or the rewards of lucrative practice after retirement.
+Judicial temperment--judges should be neither too quick nor too slow to anger.
+Justice--and most importantly, judges need the virtue of justice, the disposition to decide in accord with law and equity rather than on the basis of judges personal or political preferences.
What Went Wrong?: McConnell v. FEC, the Politics of Judging and the Judging of Politics
The Causes and Effects of Fractured Opinions Why do multi-judge courts in the United States produce fractured opinions? Neorealist judges want results that reflect their political ideologies. When there is political disagreement on a court, it is frequently difficult to produce a compromise. Many legal issues are binary--with few opportunities to split the difference. And with respect to lower courts, such as the special panel in McConnell v. FEC and the United States Courts of Appeals, the judges do not sit together on a regular basis, reducing the opportunities for working out systemic compromises. The effect of fractured opinions is to make the law less certain and more difficult to ascertain. Of course, in McConnell, the fracturing will have only a temporary effect--as the legal issues will all be revisited de novo in the Supreme Court.
Fact Finding The three-judge panel evidently could not find many facts that they could agree upon. As my colleague, Rick Hasen puts it: "At the very least, at least two of the judges should have been able to make substantive factual findings to help guide the Supreme Court. Now we have a mess on both the facts and the law." Why the failure? I don't know, but I do have a guess. Once judging is politicized, fact finding easily becomes just as political as everything else. Before assuming judicial office, most judges are lawyers--accustomed to dealing with facts as an advocate. Those skills should not carry over to the role of judge, but they can carry over. It is a good bet that the judges on the McConnell panel were unwilling to support findings of fact that would undermine the outcomes they were seeking. As Rick argues, this problem would have been less severe if the case had been decided by a single judge, but in a sense, that would only have masked the problem. A single set of facts found for political purposes would, in a way, have been worse than three contradictory sets of factual conclusions. As it is, we at least know that the judges were not actually trying to find facts that accurately reflect reality. They were trying to find facts that would support the outcomes they wanted. Rick makes this point eloquently:
Practical Wisdom At yet another level, the 1,638 page opinion, the lack of factual findings, and the months of delay tell us that the three-judge panel was sorely lacking in phronesis, the Artistotelian virtue of practical wisdom. These judges simply didn't seem to see the salient features of the case they were called upon to decide. The monster opinion and the months of delay could do very little good. The Supreme Court will revisit the law de novo. The fractured opinions and the ridiculous verbosity will only reduce the efficacy of their efforts with respect to the predictability and certainty of the law. The one thing that the district court could have done would have been to lay ideology aside and to try to produce findings of fact that were accurate and politically neutral. That effort would have aided the Supreme Court in its task. The highly politicized nature of the factfinding that was done suggests that none of the findings that did manage to get the support of two judges are trust worthy. Indeed, if the real world harm generated by the panels delay were not so grave, the appropriate legal solution might be for the Supreme Court to vacate the judgment and remand for the panel to begin again.
Friday, May 02, 2003
BCRA Decision The Election Law Blog will be the place to go for the best analysis of the opinion (just issued) striking down parts of the BCRA (McCain-Feingold). Update: Rick has started to analyze the 1,638 pages of opinions & tenatative conclusions are going up on his blog. Much of the mainstream press analysis is suspect--wait until next week to form opinions unless you are going to wade through the mess yourself.
Some Correspondence About Filibusters and Recess Appointments I've recieved some interesting emails about filibuster. Update: Most recently from Marcia Oddi at the far too modestly title Indiana Law Blog pointing to a piece from Sarah Binder, then with Brookings, written in 1996 :
While the founders had rejected a standing council to the President, they wished to retain some of its features for certain powers that had been exercised by the King personally. Thus, for the treaty and the appointment powers, the President is obliged to receive the advice and consent of the Senate. This phrase, "advise and consent" is taken directly from the language of Orders in Council --- the sovereign and the privy council acting jointly. For certain purposes, but those purposes only, it seems as if the intention was that the Senate would function as the privy council to the President.
The problem was that when President Washington went to the Senate for advice, no one seemed to know what to do. The President stood there, having read a number of proposals (I think related to relations with France), and asked "Do you advise and consent?" The Senate, having quickly come to its self-identity as a legislative body, was unable or unwilling (perhaps a mixture of both), to shift gears and act as an advisory council and after an awkward silence, someone spoke up saying that they would need to debate those matters for awhile. (It was then that Washington turned to the "principal officers of the executive departments," forming them into the Cabinet.)
When the question of the appointment power came up, my suspicion is that the convention thought the Senate, while not being a patsy, would be reasonably agreeable to the President's wishes, as would a privy council. Thus, it was thought not to be problematic to have the President issue commissions to people the Senate was probably going to approve in any case. Also, we should remember that whoever was District Judge for New York was _the_ federal judge, and that other than the circuit-riding Supreme Court Justices, there was no one else to exercise federal judicial powers. This created a need for a fail-safe method of filling vacancies.
In any case, these are just some first impressions in this regard. I think Washington knew full well what he was doing. Interestingly enough, Brennan was an Eisenhower recess appointment --- in the wake of which the Senate passed a sense of the Senate resolution asking Presidents not to do that again.
Farrell on the International Foundations of eCommerce Henry Farrell (Toronto, Political Science) uploads Constructing the International Foundations of E-Commerce--The EU-U.S. Safe Harbor Arrangement. Here is the abstract:
Thank You Department Thank you for all of the nice email and blogospheric recognition for my post on the constitutionality of recess appointments. How can you not be thankful for emails calling one's post "a masterpiece" and "sufficient for tenure here at [censored]." And I am sure I do not deserve the blog posts that said things like: tour de force, [i]f you read nothing else on the Web today: Be sure not to miss . . .," should be required reading for every member of the Senate, and my personal favorite, The finest post I've ever seen, period. And my thanks to Nate Oman for being so good natured about his cameo role.
New Papers on the Net Here is the roundup:
Ian Ayres (Yale, Law), Fredrick Vars (Yale, Law) and Nasser Zakariya (Yale, Center for Study of Corporate Law) offer To Insure Prejudice: Racial Disparities in Taxicab Tipping.
Sayantan Ghosal and Marcus Miller (Warwick, Economics) offer Coordination Failure, Moral Hazard and Sovereign Bankruptcy Procedures.
Eileen Sweeney posts Review of Thomas Aquinas' The Treatise on Human Nature: Summa Theologiae 1a 75-89 from the valuable Notre Dame Philosophical Reviews.
John Ferejohn posts Judicializing Politics, Politicizing Law.
Confirmation Wars: The Filibuster
The Legal Option Who knows what the Courts might do these days? But I completely agree with Hasen's assessment:
A Change in Senate Rules More interesting is the possibility of a change in the rules. I don't think I can make much progress on this topic in this post, but here are some points:
Further Reading If you are interested in this topic, you must read Catherine Fisk and Erwin Chemerinsky, The Filibuster, 49 Stanford Law Review 181 (1997).
Post Script: Howard Bashman has an update on Filibusters. If you follow Howard's link to an Atlanta Journal Constitution story, you will find:
Thursday, May 01, 2003
Workshop Today Joseph Sax (Berkeley) workshops The Barnes Collection, The Dead Sea Scrolls, And Other Proprietary Puzzles at the Kadish Center. Here is a taste:
Gaming Recess Appointments The Confirmation Wars have prompted several sources to suggest the use of recess appointments to break the logjam caused by Democratic use of filibustering (the Patricia Owens filibuster started today) and blueslipping. The most ingeneous (some would say diabolical) of these suggestions was made by Randy Barnett in a piece for National Review Online that dares to suggest that Bush Bring Back Bork, although for political reasons the President would be more likely to focus on the politically more feasible idea (which is the real point of Barnett's essay) of using highly qualified conservative and/or libertarian law professors as the talent pool. I've recently posted on this idea--Going Nuclear. A well informed source on The Hill has raised some interesting questions about the idea. In particular, my source--whom I shall call Deep Roberts (after Roberts Rules of Order, of course)--has the following thoughts:
In parliamentary jargon - a recess is used to describe a short break in a meeting whereas adjournment is used to end a meeting. However in Senate practice a motion to recess is often used to end proceedings on a given day rather than a motion to adjourn. The result is that Senate legislative days often last for several calendar days. It is difficult to imagine that this meaning of recess is what was meant in Article II. As this is a question that hasn't been resolved in 200+ years - I'm not going to try to resolve it here.
If a less than three day recess is sufficient to make a recess appointment -- then I don't think there is anything a Senate minority could do to prevent a recess appointment. A priveleged motion to adjourn would if approved give the President his opportunity to make the appointment.
If the recess needs to be longer than three days, then I think the minority may be able to prevent an adjournment of that length. A motion to adjourn cannot be used to circumvent the contsitutional prohibition on adjourning for more than three days without the consent of the other house. To adjourn for more than three days -- the House and Senate must both agree to the same Senate or House Concurrent Resolution therby authorizing a recess. I do not believe that such a concurrent resolution is in anyway privileged in the Senate and thus it could be filibustered.
Are there any laws that would give privilege to a constitutional motion to adjourn for more than three days? 2 USC 198 provides for adjournment to end the session (sine die) on July 31. I have no special insight into this, because Congress never adjourns sine die at the end of July - so I've never had to worry about it in practice. First in order to adjourn sine die in July the Senate leadership would have to be willing to stay out until the beginning of the next session in January. It would probably be a good thing for the Senate to be in recess for 6 months out of a year but in the modern context it would be an extreme move for the Senate leadership to take.
Especially if you consider that the Senate minority could easily filibuster the appropriations process beyond July 31 making an adjournment sine die equivalent to shutting down the government. In fact a filibuster would hardly be likely as Congress in the best of years doesn't finish appropriations until well into October. My judgement is that it is not politically possible for the modern Congress to adjourn sine die that early.
Also, it is less than clear to me what 2 USC 198 really does. It seems to provide constitutional cover for one house to adjourn sine die without the agreement of both houses. But I'd like to know how this provision worked when it was really used before I made a judgement. As you probably know, the House and Senate aren't constrained by the law when it comes to their own proceedings and rules - so any change to Senate rules since this provision was enacted (1970) in regard to sine die adjournment might override it.
Finally, the President pursuant to Article 2 Section 4 may adjourn the House and Senate in the case of Disagreement between the houses over adjournment. To my knowledge this has never been tested. Disagreement in parliamentary parlance is a formal term with a specific meaning where it is used in the context of a bill passed both by both houses but where they have agreed to differing amendments. I don't know if this formal meaning has any relevance in the constitutional context. But it is safe to say that such a move would really be extreme and would be contested in the judiciary.
At any rate if the Senate minority upped the ante this much -- it seems likely that the Majority would try to respond by doing away with the filibuster rules. And I think it is at least possible that the public would be supportive of such a move if the Senate was really as gridlocked as we are imagining. The result could then be that the minority couldn't block floor votes on nominees. On the other hand, I'm pretty confident a determined Senate Majority in opposition to the President could prevent the opportunity for the President to make recess appointments.
I guess my bottom line point was that in considering *function* you might want to consider possible Senate responses (majority or minority) and their consequences to a perceived abuse by the President of recess appointments to the judiciary.
Confirmation Wars Just few short items:
The White House Press Briefing had several exhanges on judicial nominations, but the most interesting one concerned the theory that the Senate has a constitutional "responsibility" to provide an up or down vote on Presidential nominees, link here and for more links, go to this Bashman post.
And the Owen filibuster is officially on. The first cloture vote failed. See How Appealing here.
From yesterday, my post on the Constitutionality of Recess Judicial Appointments, or as I put it: Going Nuclear.
And from Monday on National Review Online, the Barnett plan, or Bring Back Bork?
Schwarzschild at Brooklyn My temporary landlord (and all around nice guy) Maimon Schwarzschild (University of San Diego, Visiting Brooklyn) will be presenting Peasants With Pitchforks: Putting Direct Democracy In Its Place at a Brooklyn Law School roundtable today. Here is a taste from the introduction:
New Papers on the Net Here is today's roundup: