The Unsolicited Caveats, Commentaries, and Criticism of a Federal Law Clerk

 

Grutter v. Bollinger:

I have offered some preliminary observations regarding Gratz v. Bollinger. Due to time contraints, I have not yet been able to comment on its companion case, Grutter v. Bollinger, which seems to be getting the lion's share of attention elsewhere. However, readers can always meander over to Begging to Differ, where Steve has posted a concise summary of and interesting commentary on the case. You can access his thoughts here.

UPDATE I:

Timothy Sandefur's analysis of Grutter is also well worth a look. In particular, Sandefur offers the following insight:

[T]he Court critically wounds, if it does not entirely kill, the concept of strict scrutiny. This is interesting, because the Court has already severely weakened the concept of rational basis scrutiny. In Romer v. Evans and some other cases, the [C]ourt has used rational basis to strike down a law as unconstitutional; now they’ve used strict scrutiny to uphold a law. That’s very strange to begin with, and on top of that, the [C]ourt has “deferred” to the law school’s decision, which it is never supposed to do when using strict scrutiny. That is very odd, and Justice Kennedy’s dissent attacks that specifically.

Is Sandefur's thesis correct? As a descriptive matter, are these "hard cases" on controversial sociopolitical issues perverting the Court's equal protection jurisprudence? Or was the jurisprudence itself problematic from its inception? Can Bush v. Gore be lumped in with these other "hard equal protection cases"?

UPDATE II:

Stuart Buck also notes the incredible nature of the Court's determination that a defendant "accused of racial discrimination [i]s to be given deference as to its claim that the discrimination at issue produce[s] positive benefits."

UPDATE III:

Brett Marston, a professor of political science, is also troubled by the deference that O'Connor accords to others' judgments in the Grutter decision. (Link via Solum.)

However, I think that some of Marston's analysis is troubling in its own right. For example, Marston writes:

At the very least, however, this decision does allow for a broader political discussion of whether or not affirmative action is good public policy, a discussion that would not be possible if the Court simply invalidated such programs. If opponents of affirmative action want to prevail, they will now have to appeal to voters rather than rely on the judgment of a majority of the Justices on the Supreme Court. And defenders of such programs will have ample opportunity to answer those charges, something that most certainly would not have happened if the decision went the other way. Strikes me as a good thing, all things considered.

Given the effect that Gratz is likely to have on the use of race in admissions, it is not clear to me that such a debate will be facilitated by the Court's decisions. So, as a factual matter, I think that Marston's optimism may be misplaced. But reasonable people can disagree on this point.

The reasoning process that undergirds Marston's optimism, however, is simply incredible. Couldn't the very same rationale be advanced in favor of overruling Roe v. Wade, deconstitutionalizing the abortion issue, and leaving the matter to public debate? Will Marston be similarly consoled by this facet of the decision if Lawrence v. Texas upholds Bowers and/or the state's sodomy law?

It seems to me that the sort of silver lining that Marston perceives in Grutter is probably one that is visible solely to those who are, more or less, comfortable with the decision's ultimate outcome. Or am I being too curmudgeonly?

UPDATE IV:

Apropos of Timothy Sandefur's remarks, see Update I, and in response to Stuart Buck's commentary, see Update II, Professor Balkin also concludes that the Court is not applying strict scrutiny in Grutter. Balkin goes on to make the more controversial claim that the Court has effectively abrogated Adarand and held that purportedly beneficial racial classifications and invidious ones are subject to differing standards of review, the majoritys' contrary contentions in both Grutter and Gratz notwithstanding.

This strikes me as being more wishful thinking than legal analysis. There is a world of difference between altering the governing standard of review and misapplying it. We will have to wait for the next case to see which has occurred, as the Court will ultimately have to decide what Grutter means on this point.

This future case will likely be decided by a Court that does not feature one or more of the present Justices. So it is difficult to know how Grutter will ultimately be construed. But it would be odd for a future Court to utterly ignore a prior Court's express, precedential statement of the proper standard of review and its scope, particularly when two of the dissenters in Grutter's companion case felt the need to argue that a differing standard of review ought to be adopted with reference to so-called benign racial classifications.

Balkin attempts to lure Buck with the following siren song:

Even though Stuart and I probably don't agree about the result in Grutter, I am sure that he agrees with me that it would be better to be honest about what the Court is doing rather than to hide behind these particular legal fictions.

Translation: Buck and others should concede that the Court is doing what Balkin suggests. I suggest that Buck et al. put wax in their ears. A future Court, with equal (or greater) plausibility, might simply hold that the Grutter Court misapplied the very standard of review that it articulated. Balkin claims to be making a merely descriptive claim about the opinion, when, in fact, he is making an argument about how the academy and the courts ought to interpret Grutter.

UPDATE V:

Professor Marston has an interesting rejoinder to my previous response to his curmudgeonly remarks on Grutter, see Update III, here.

UPDATE VI:

All Deliberate Speed concludes that the strict scrutiny test has, in fact, been altered and considers what the supposed new test might look like in application down the road. You can access ADS's surmise here.

posted by Curmudgeonly Clerk at 3:44 AM

 

Gratz v. Bollinger: Some Preliminary Observations

The blawgosphere is abuzz with yesterday’s Supreme Court decisions in the University of Michigan affirmative action cases, Grutter v. Bollinger and Gratz v. Bollinger. In the latter, the Court, by a 6-3 margin, struck down the University of Michigan’s undergraduate admissions program as violative of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d). The opinion is available here.

The Line Up
The Court was fractured on multiple issues. The Chief Justice authored the majority opinion, which was joined by Justices O’Connor, Scalia, Kennedy, and Thomas. Nonetheless, Justices O’Connor and Thomas each filed concurring opinions. Justice Breyer concurred in the judgment and joined O’Connor’s separate concurrence—except to the extent that her views endorsed those expressed in the opinion of the Court.

Each of the three dissenters—Justices Stevens, Souter, and Ginsburg—filed a separate dissent. Justice Souter joined the dissents of his two compatriots. Justice Breyer joined in the first part of Justice Ginsburg’s dissent, and Ginsburg joined in the second part of Souter’s dissent.

The Various Positions
Although the Court’s decision was fractured, the line-up proffered above, perhaps, confuses the matter unnecessarily. An examination of the positions staked out by the various Justices is more illuminating.

The Petitioners (a class of applicants alleging racial discrimination) argued two distinct positions before the Court. First, they argued that “diversity” is constitutionally infirm as a justification for racial preferences in admissions policies (i.e., in terms of the Court’s jurisprudence, Petitioners argued that “diversity” is not a compelling state interest). The decision in Grutter upholding racial preferences in the University of Michigan Law School’s admissions resolved this issue against the petitioners. However, the petitioners secondarily argued that, even if “diversity” does constitute a compelling state interest, the undergraduate admissions standards were not sufficiently narrowly tailored to constitutionally achieve this compelling interest.

Rehnquist and O’Connor, Scalia, Kennedy, and Thomas agreed with the Petitioner’s second contention. In particular, a grant of 20 points (on a scale of 150) given to certain minority applicants on the basis of their race alone was found to offend the Constitution. In striking down the admissions program, the majority unfavorably compared it with the sort of individualized consideration of applicants countenanced so long ago by Justice Powell in Bakke.

O’Connor apparently writes separately for no reason other than to clarify why the 20-point advantage enjoyed by specified minorities is not sufficiently narrowly tailored. Of note, language in her concurrence suggests that any “predetermined point allocation” akin to the 20-point addition to applicant scores would fail Bakke’s individualized consideration requirement in the absence of some other means of considering each individual as an individual. Breyer shares this view. No doubt, O’Connor also writes to clarify her position in light of her majority opinion in Grutter.

Thomas signs onto the majority opinion because he regards it as a proper application of the controlling precedents. But he reiterates that, had his views prevailed in the companion case, Grutter, Thomas “would hold that a State’s use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause.”

Breyer’s very short concurrence has three aims. First, he concurs in the judgment. Second, he joins O’Connor’s concurrence, “except insofar as it joins that of the Court.” Third, he agrees with Ginsburg (and Souter) that the Equal Protection Clause permits a distinction between racially discriminatory policies that confer a benefit and those that impose a burden.

Stevens never reaches the merits in his dissent. Instead, his opinion is entirely devoted to arguing that the Petitioners lack standing to have this case heard. Of the Justices, only Souter shares this view. One suspects that this particular dissent will largely go unread and will see little in the way of future citation.

Souter also addresses the standing issue in his separate dissent; however, the bulk of his opinion is devoted to the merits. On the merits, he argues that Grutter and Bakke form two points on a continuum that defines properly and improperly tailored admissions programs respectively. Souter regards Michigan’s undergraduate admissions program as being more akin to Grutter’s suitably narrowly tailored admissions standards. Ginsburg agrees with Souter on the merits.

Ginsburg writes on two matters. First, she maintains that differing standards of review ought to apply to racial classifications that confer benefits, as opposed to those that impose burdens, due to the nation’s past discrimination and its present legacy. Souter and Breyer agree with Ginsburg on this point. Second, on the merits, Ginsburg states her agreement with Souter.

Armchair Analysis
Initial commentary regarding the Michigan cases suggests that people’s views regarding Gratz are largely dictated by their views of Grutter. But setting aside the merits of the Court’s reaffirmance of Bakke’s “diversity” principle as a compelling state interest, assuming arguendo that Grutter was correctly decided, doesn’t Justice Souter have the better argument on the merits?

The majority asserts that a twenty-point addition for race is effectively dispositive in admissions, because on a scale of 1 to 150 points, in which only 100 is needed to virtually guarantee admission, race accounts for one-fifth of the relevant total. This purportedly fails the individuated assessment that all applicants must receive, because other factors, such as “extraordinary artistic talent” cannot result in a similar point adjustment. If I read O’Connor’s concurrence properly, she and Breyer view any concrete point allocation as unconstitutional in the absence of some other mechanism for individual consideration. She writes that “the selection index, by setting up automatic, predetermined point allocations for the soft variables, ensures that the diversity contributions of applicants cannot be individually assessed.”

O’Connor’s concurrence, however, also provides greater detail regarding Michigan’s point allocation scheme. She details that, on a scale that peaks at 150, “[u]p to 110 points can be assigned for academic performance, and up to 40 points can be assigned for the other nonacademic factors.” Of these nonacademic factors, in-state residents are accorded 10 points, children of alumni receive 4, outstanding essays garner 3 points, personal achievement, leadership, or public service may result in an award of 5 points. The 20-point bonus at issue was accorded to underrepresented minority applicants, applicants from a minority or disadvantaged high school, and athletic recruits.

Souter argues that this point schema is more akin to Grutter than to Bakke. Bakke dealt with an explicit set-aside that reserved a specific number of seats in the entering class for minority applicants alone. That is, designated minority candidates did not have to compete in the same general admissions pool. This is clearly not the case in Gratz; Michigan’s undergraduate point-based program had all candidates competing in the same pool and merely weighted different factors differently—something that Bakke contemplated as constitutional.

Regarding the notion that specific point assessments are not kosher, Souter has an effective rejoinder:

The very nature of a college’s permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants’ chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell’s plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its “holistic review,” . . . the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose.

Nor is it possible to say that the 20 points convert race into a decisive factor comparable to reserving minority places as in Bakke. Of course we can conceive of a point system in which the “plus” factor given to minority applicants would be so extreme as to guarantee every minority applicant a higher rank than every nonminority applicant in the university’s admissions system, see 438 U.S.,at 319, n.53 (opinion of Powell, J.). But petitioners do not have a convincing argument that the freshman admissions system operates this way. The present record obviously shows that nonminority applicants may achieve higher selection point totals than minority applicants owing to characteristics other than race, and the fact that the university admits “virtually every qualified underrepresented minority applicant,” . . . may reflect nothing more than the likelihood that very few qualified minority applicants apply, . . . as well as the possibility that self-selection results in a strong minority applicant pool. It suffices for me, as it did for the District Court, that there are no Bakke-like set-asides and that consideration of an applicant’s whole spectrum of ability is no more ruled out by giving 20 points for race than by giving the same points for athletic ability or socioeconomic disadvantage.

Any argument that the “tailoring” amounts to a set-aside, then, boils down to the claim that a plus factor of 20 points makes some observers suspicious, where a factor of 10 points might not. . . .

It strikes me as odd that a Justice like O’Connor would vote to uphold Bakke’s contemplation of “diversity,” but then strike down Michigan’s undergraduate program. These dual holdings are bound to involve schools in a morass as they attempt to provide the sort of individuated consideration that the Court mandates. In this vein, I think that the majority, perhaps, misperceives the much-ballyhooed remarks of Justices Souter and Ginsburg regarding the desirability of candor in the admissions process. The dual holdings of Grutter and Gratz are bound to camouflage the use of race in admissions as a practical matter, because the degree of individuated consideration mandated will not prove reducible to concrete standards. It is almost as if the Court has allowed schools to consider race, but forbidden them to do so in all but the most amorphous manner. At least Michigan’s method had the virtue of transparency and therefore could be subjected to debate. The new order will prevent meaningful debate on the use of race as a factor in admissions, because, we will no longer be able to identify precisely what role race plays.

Notes of Interest
(1) The majority opinion considers a 100-point scale to be the relevant measure, as a total of 100 (out of 150) points resulted in admission under the undergraduate admissions plan. The 20 points given to members of certain racial groups constitutes one-fifth of the total relevant points. Souter seems to suggest that the full 150-point range is the relevant measure. This would have the effect of reducing the role of race to 13.3 percent of the total picture. Setting aside O’Connor’s concurrence, is the majority or Souter right on this point?

(2) The majority insists that all racial classifications are subject to the same standard of review (i.e., strict scrutiny). Souter, Breyer, and Ginsburg all maintain that racial classifications may be subdivided into those that help and those that hinder, with only the latter being subject to strict scrutiny. Assuming that the dissenters prevailed on this point in a future case, how would they distinguish between the two? Aren’t racial preferences a zero sum game? That is, don’t racial classifications that confer a benefit on one group per force impose a burden on others? What would be the constitutional status of racial preferences that benefited one historically disadvantaged minority at the expense of another? Is Ginsburg’s omission of Asian-Americans from those groups that “historically have been relegated to inferior status by law and social practice” indicative that the dissenters have not conceived of such potential conflicts, or do they view the critical mass arguments advanced in Grutter as having resolved this issue?

(3) Footnote 23 of the majority opinion indicates that the Court’s race preferences holdings pertain to private institutions that accept federal funds—not just public entities. So the principles announced in Gratz are of incredibly broad application.

(4) Ginsburg’s dissent cites an article by Goodwin Liu to the effect that in any selective admissions scheme, no white applicant will ever be statistically disadvantaged by race preferences for others, because even significant preferences will not diminish the odds for whites in the aggregate due to the far higher numbers of whites at the front-end of the application process. Something seems awry here. How would such an aggregate view of the matter ever comply with the individual consideration that Bakke requires? When considering individuals, isn’t the relevant referent the particular individual(s)? Aren’t we concerned with admissions at the margins here?

(5) Both Souter and Ginsburg are very critical of supposedly race-neutral alternatives like Texas’s 10 percent plan. With regard to such plans, Souter writes:

While there is nothing unconstitutional about such a practice, it nonetheless suffers from a serious disadvantage. It is the disadvantage of deliberate obfuscation. The “percentage plans” are just as race conscious as the point scheme (and fairly so),but they get their racially diverse results without saying directly what they are doing or why they are doing it. In contrast, Michigan states its purpose directly and, if this were a doubtful case for me, I would be tempted to give Michigan an extra point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.

Ginsburg also regards the purpose of these percentage plans to be increased minority admissions. Souter and Ginsburg are undoubtedly correct about the purpose of these plans. What level of scrutiny should policies that are facially race-neutral be subject to when all acknowledge that the motive for the policy is racial in nature?

UPDATE I:

Regarding O'Connor's majority opinion in Grutter, Will Baude is also perplexed. He writes:

[The decision to defer to the law school's use of race in making individuated determinations regarding applicants] strikes me as a little odd only in light of Gratz. Faced with two policies from the University of Michigan, one written and one unwritten, the Court strikes down the written one because it isn't individualized and nuanced enough, but upholds the unwritten one without serious inquiry into whether it indeed achieves the "critical mass" that the University claims it aims for.

Baude also notes, in commenting on Gratz that this is bound to obscure the use of race in admissions. Or at least I think Baude is saying as much. If so, I am apparently not the only one that views transparency in admissions as a casualty of the Supreme Court's decisions.

UPDATE II:

Yesterday, Professor Volokh offered his take on the issue of transparency. Writing of the majority's and Ginsburg's competing views, he stated:

Both the Chief and Justice Ginsburg have a point here. I think the Chief's view on this is ultimately more sound, but I do think that the Gratz/Grutter combo will mean both more cheating and less transparency in the design of race preferences—which may lead to less political accountability, since voters will find it harder to identify the true magnitude of race preferences, and more of the political acrimony caused by allegations of cheating and disingenuousness.

Volokh and I are on the same page regarding the decisions' likely effects, but Volokh loses me when he perfunctorily states that he "think[s] the Chief's view on this is ultimately more sound." The Chief's response to Ginsburg's concern was as follows:

Justice Ginsburg in her dissent observes that “[o]ne can reasonably anticipate . . . that colleges and universities will seek to maintain their minority enrollment . . . whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue.” She goes on to say that “[i]f honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.” These observations are remarkable for two reasons. First, they suggest that universities—to whose academic judgment we are told in Grutter v. Bollinger, we should defer—will pursue their affirmative-action programs whether or not they violate the United States Constitution. Second, they recommend that these violations should be dealt with, not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities."

I am not convinced that this is necessarily the best reading of Ginsburg's and Souter's remarks on this topic. The Chief's response seems to be assuming what is to be decided. That is, Ginsburg and Souter argue that, rightly construed, Michigan's undergraduate admissions program is not unconstitutional. In part, they argue that, in effect, the Court's decisions will, in tandem, deprive the public (and presumably the courts) of the ability to scrutinize the use of race in admissions in the future.

The Chief's only response to these claims appears to be that, because the Court decides that a concrete point-based system is unconstitutional, the dissenters' argument to the contrary amounts to arguing that universities be allowed to behave in an unconstitutional manner. But aren't the dissenters really just arguing that the majority is misapplying Grutter's holding in Gratz, that a point-based accounting of race is not unconstitutional? The dissenters lost that argument by a vote of 6-3, but Rehnquist's criticism misses its mark precisely because the constitutionality of the point-based system is what was at issue in Gratz.

If the issue was previously well-settled, perhaps, Rehnquist et al. could properly characterize the dissents' alternative as tantamount to bending the Constitution for the benefit of educational institutions' policy preferences. But to accuse the dissenters of doing so merely for disagreeing with the result endorsed by the majority is specious. I'm not sure that the Chief actually has a response to Ginsburg's and Souter's transparency concerns.

posted by Curmudgeonly Clerk at 3:09 AM

 

Who Should Mete Out Attorney Discipline?

David Giacalone has an intriguing post and an additional essay advocating that lawyer disciplinary frameworks ought to include greater public participation due to the inherent conflict of interest that is generated when state bar associations act both as professional guilds and the states' disciplinary authorities.

I have not looked into the situation too deeply, but Giacalone cites reports issued by the ABA and HALT in support of his thesis. HALT’s report advocates that all disciplinary panels be at least majority-controlled by non-lawyers. Having recently written a lengthy article on a particular area of attorney misconduct that should shortly see publication, I have no doubt that a parade of horribles can easily be constructed regarding attorney misconduct. Nonetheless, I am initially reluctant to embrace the proposed reform for a few reasons.

First, disciplinary panel holdings are generally appealable to the state courts. Therefore, any laxity in results is remediable in the courts, which presumably are not subject to such conflicts of interest. (Note: Adequacy of the discipline imposed was HALT’s chief complaint regarding the disciplinary process in Texas.) Of course, this particular fact does nothing to gainsay Giacalone’s concern that not enough ethical misconduct cases are being brought on the front end.

In addition, Giacalone may not concede that state judiciaries, which are predominately assembled by popular election, are free from such conflicts. But if not free from conflicts at this level, mustn’t the reform be even broader than suggested? The mention of judges also leads me to wonder whether judicial misconduct allegations also must be subject to an arbiter of ethics outside of the judiciary itself, if one accepts the logic of HALT’s recommendation. (Note: In Texas, judicial misconduct cases are heard by a special review tribunal made up of other judges.)

Second, it is not clear to me that independence per force equals disinterestedness. Not too long ago, Congress let the independent counsel statute sunset out of existence. The basic premise behind the now defunct law was that the executive branch could not be trusted to supervise itself. However, the highly politicized investigations that resulted under the statute infrequently led to convictions, often seemed less than apolitical, and did little to bolster public confidence in the integrity of either the investigated or the investigators.

If Giacalone’s surmise regarding the lack of confidence in the integrity of the legal profession is well-founded, then non-lawyers may not be the most suitable candidates for meting out attorney discipline. While they may not labor under the conflict of interest that state bar associations do, preexisting biases and prejudices may disqualify laymen from sitting in judgment in the same fashion that such factors preclude jury service. In particular, what might become of trial lawyers if the forces of tort reform gain predominance in a non-lawyer attorney discipline agency or of defense and corporate counsel if plaintiff-friendly folks assume control?

Third, although the predominance of lawyers in disciplinary authorities might lead to leniency, they also undoubtedly contribute to the expertise of such panels. Lawyers, more than anyone, understand what conduct falls short of the ethical codes promulgated for lawyers. This point is pregnant with meaning. Ethical codes do not forbid all conduct that laymen might consider amoral or even immoral. Ethical prohibitions are more a code of professional responsibility than a moral guide; they set minimum standards for ethical behavior. Only the morally challenged would merely aspire to cross this minimal threshold. Nonetheless, discipline is appropriate only when actual ethical prohibitions are transgressed. A lawyer might engage in a host of unseemly behaviors that nonetheless do not call for discipline.

Readers may be more familiar with this particular distinction in the context of the criminal law. Immoral and criminal conduct are not necessarily coextensive. That is, what is immoral is not necessarily criminal. This distinction is equally appropriate in the attorney misconduct context, because disciplinary proceedings are generally quasi-criminal in nature. See In re Ruffalo, 390 U.S. 544, 550-51 (1968). One wonders if laymen will fully appreciate such niceties.

Of course, these are just my preliminary observations. I remain open to being convinced otherwise. Perhaps, on further reflection and study, I will be persuaded of the merits of the suggested reform. As always, readers are welcome to register their feedback with yours truly. However, Giacalone is actively seeking feedback on this issue. Accordingly, I recommend that anyone with expertise or lucid observations on this topic also check in with him.

posted by Curmudgeonly Clerk at 12:52 AM

 

Many Thanks:

Thanks go out to Crimen Falsi, How Appealing, and Southern Appeal for links to my humble site. Thanks also to Crimen Falsi for the addition of The Curmudgeonly Clerk to his blogroll.

Additional thanks to Professor Jonathan H. Adler, who linked to my site in National Review Online's The Corner.

UPDATE:

Thanks also to Professor David M. Wagner for adding me to his distinguished blogroll.

And, as usual, thanks to my occasional debating partner, Will Baude, for the link.

posted by Curmudgeonly Clerk at 4:34 PM

 

In Defense of Owen:

Lou Dubose has a one-sided hatchet-job in the LA Weekly on Justice Priscilla Owen of the Supreme Court of Texas—one of two nominees to the federal appellate courts currently being filibustered by Senate Democrats. (Link via How Appealing.) This is not Dubose’s first crack at Owen. He previously attacked her in The Texas Observer.

Dubose’s stories both principally revolve around a single case: Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998). The main issue in Miles was the propriety of venue. Unfortunately, the factual context was tragic: Willie Searcy, only fourteen years old at the time of the auto accident that formed the basis of the suit, was rendered a quadriplegic who required the assistance of a ventilator to breath. Id. at 379.

Dubose’s LA Weekly story opens with a reference to the plaintiff’s attorney, Jack Ayers. I assume that Ayers was a source for Dubose’s pieces. Why? Because I have heard Ayers tell this story before. He spoke to my class in Professor Alex Albright’s Texas Trial & Appellate Procedure course at The University of Texas School of Law some time ago.

I have no reason to doubt Ayers integrity. If I needed a trial lawyer, I would be comfortable relying on his advocacy skills before a jury. But Jack Ayers is a true believer. He lives in a world of good and evil. And he’s on the side of the angels, you see.

There’s a saying among lawyers: If the law is on your side, pound the law; if the facts are on your side, pound the facts; and if neither is on your side, then pound the podium. Ayers primarily pounded the facts during his talk at UT—or rather, he pounded selective facts. Searcy’s story inspires sympathy, and Ayers made sure we knew his story in detail. But Ayers also pounded the podium a bit; in particular, he criticized a judge.

Justice Owen, however, was not the villain he singled out that day—at least not by name. Although he lambasted the Supreme Court of Texas’s decision, Ayers focused much of his criticism on Judge David Godbey, who was then a Texas state district judge and handled the case on remand from the Supreme Court. Godbey has since been nominated and confirmed as a federal district judge.

Dubose also pounds the facts and the podium, but shifts gears and attacks Owen in lieu of Godbey. There is a lot that is wrong with Dubose’s telling though.

The accident, a head-on collision precipitated by another vehicle, took place in Dallas County. Miles, 967 S.W.2d at 379. Likewise, the plaintiffs resided in Dallas County. Id. However, the vehicle in which they traveled was sold from a dealership in Rusk County, which is where Ayers brought suit, notwithstanding the fact that the dealership was in no way connected with the events forming the basis of the action. Id. Ford moved to transfer venue to Dallas County, but that motion was denied, trial ensued in Rusk County, and plaintiffs obtained a large verdict. Id.

A little general background is in order. Texas has a well-known history of venue abuse (i.e., lawyers manufacturing venue in fora that they feel are more plaintiff-friendly). As a result, Texas law has undergone various reforms to curb venue-shopping. Venue in Texas law is a big deal: a finding on appeal that venue was improper in the trial court will result in reversal and remand with instructions to transfer to the appropriate district court. Accordingly, it behooves lawyers not to try to manipulate venue.

The Supreme Court of Texas, with Justice Owen writing for the court’s majority, found that venue had been improper in Rusk County and therefore reversed and remanded. Id. at 380-82. Here is a map of Texas’s counties. Take a look and decide for yourself whether Jack Ayers’s venue choice of Rusk County rather than Dallas County was an attempt to manipulate venue under the facts of the case. Or better yet, take Dubose’s word for it. In the Observer, he writes:

Willie’s lawyer, Jack Ayres, was determined to get the case to trial as fast as possible. . . . Ayres was looking for a court with a rocket docket. . . .

"We were in a race to save this kid’s life," Ayres said. Dockets in Dallas were backed up. So in 1994 Ayres filed suit in state district court in Henderson, a small East Texas town . . . .

Whatever Ayers’s motives, venue statutes in Texas do not have a “really compelling circumstances” exception.

Chief Justice Phillips and Justices Gonzales (now White House General Counsel), Hecht, and Abbot signed onto Owen’s opinion. Gonzales, Hecht, and Abbot also concurred in order to address a non-venue-related issue that went unaddressed in the main opinion. Id. at 389. Justices Hankinson, Enoch, Spector, and Baker dissented in a very brief opinion on the basis of the majority’s venue determination. Id. at 390.

Based almost exclusively on this case, Dubose makes numerous unfounded and/or ill-founded claims. For example, Dubose attributes the decision solely to Owen. Although she was apparently assigned the case via random draw and penned the court’s opinion, Justice Owen was writing for a majority. So the lone extremist scenario that Dubose advances is not quite accurate. But Dubose persists with his conspiracy theory nonetheless:

. . . Corporations and defense firms pay for judicial elections [in Texas]. They expect what Lyndon [Johnson] used to call a “bang for their buck.” In the Searcy case, Baker Botts, the Houston law firm founded by the great-grandfather of Bush-family adviser James Baker III, had given the Owen campaign $20,450. The firm also happened to be Ford’s appeals counsel, angling for a $1 million bonus if it could get the decision reversed. Which it did—with Owen’s help.

So could Dubose not find a similar pattern of contributions for the other four Justices in the majority? What about the dissenters—did Ford, Baker Botts, or the plaintiffs’ bar contribute anything to their coffers? If one is going to imply that improper influence or corruption played a role in Owen’s decision-making process, aren’t these questions that need to be addressed? But, hey, why bother with such facts when you can just conspiratorially refer to James Baker’s great grandpappy.

Dubose also suggests that Owen delayed issuing a decision in a manner that contributed to Searcy’s eventual death. Dubose does not, however, provide the reader with any facts capable of sustaining this charge. In the Observer, Dubose relies on the observations of unidentified law clerks regarding Owen’s handling of the case behind the scenes. This is unfortunate, because such unattributed claims are unanswerable by any of the Justices. Canon 3 of the Code of Judicial Conduct precludes judges from discussing such details:

A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity. The discussions, votes, positions taken, and writings of appellate judges and court personnel about causes are confidences of the court and shall be revealed only through a court's judgment, a written opinion or in accordance with Supreme Court guidelines for a court approved history project.

Moreover, the unidentified sources have almost certainly violated the ethical rules pertaining to law clerks, which generally require complete confidentiality regarding the goings-on in chambers. It is a little difficult to take the axe-grinding of disgruntled former clerks seriously when they would so casually violate the court’s confidence.

Dubose also contradicts himself on this point regarding Owen’s alleged delay. In The Texas Observer he lays much of the blame for the delay on Ford Motor Company, rather than Owen:

Ford Motor Co. is not exactly an easy mark for lawsuits. In the early ’90s, the company was winning 80 percent of the cases that made it to a jury. In 1994, as Willie Searcy’s lawyers were starting the discovery phase of the trial, the company was changing its litigation strategy. Ford was going to play hardball. "The essence of Ford’s strategy," according to The National Law Journal, "is that it’s now ready and willing to try any case, no matter how small, no matter how great the risk of a mammoth jury verdict." The company would make a take-it-or-leave-it pretrial settlement offer. Ford assistant general counsel James A. Brown was up front about the new strategy. There would be one offer, he told the Law Journal reporter. "I don’t give a shit if they take it or not . . . If the plaintiff doesn’t settle, it doesn’t matter to us. We tell them, ‘We’re coming after you.’"

Ford came after Willie Searcy’s lawyers. "They told us to make an offer they would find acceptable, or they would string this along until Willie died," Randall Sandifer said. Sandifer filed an affidavit describing Ford’s promise to delay a final resolution of the case as long as they could.

The actual timeline is less than complete. From Westlaw, one can determine the following: The accident occurred in 1993. Miles v. Ford Motor Co., 922 S.W.2d 572, 578 (Tex. App.—Texarkana 1996). The appellate court issued its decision affirming in part and reversing in part the trial court’s verdict on March 13, 1996. Argument was heard on appeal before the Supreme Court of Texas on November 21, 1996; the high court issued its decision on March 19, 1998. That is a while to be sure. However, once it was remanded the case lingered on for over three years. The last opinion in Westlaw on the case was issued by the Dallas Court of Appeals, which remanded the suit to the trial court once again. See Miles v. Ford Motor Co., No. 05-99-01258-CV, 2001 WL 727355 (Tex. App.—Dallas June 29, 2001, pet. denied) (unpublished opinion). Searcy died less than a week later.

Dubose does not bother explaining the details regarding this timeline. Nor does Dubose provide the reader with any of the docket entries that might explain the delay, apart from referring to a procedural glitch in the initial appeal from the trial court and Ford’s purported misconduct. Needless to say, none of this lays any responsibility at Owen’s doorstep. At any rate, from the preceding timeline alone, it is obvious that this case spent most of its unhappy history in courts other than the Supreme Court of Texas.

Dubose’s only attempt in the LA Weekly to attribute the delay to Owen is this feeble assertion:

And here’s why Owen deserves to be singled out for delaying justice and treatment for Willie. She wrote a long opinion on the Texas venue statute, one of those seemingly important lawyerly things to do to make sure the statute could be correctly applied in future cases. But there would be no future cases. After the suit was filed, the statute had been replaced by a new, restrictive venue law then-Governor Bush pushed through the Legislature in 1995. In effect, Owen was using time marked by Willie Searcy’s regulated breathing to elaborate on a piece of legal history. She could have quickly moved the case without working to persuade a majority of justices to sign onto an opinion. But she subjected Willie Searcy to the “results-oriented” process that is a signature mark of the Texas Supreme Court. Ford wanted the case retried in a friendly venue in Dallas; Owen’s belabored opinion liberally interpreted the law to achieve that outcome.

First, Owen’s opinion is not long; it is approximately ten pages in length, of which about three are devoted to the issue of venue. Second, she and the court, including the dissenters, construed the statute and law that was applicable to the case. To do otherwise would be to disregard the court’s precedent and the venue rules established by the legislature. Dubose chides Owen for result-oriented jurisprudence, but the gravamen of his complaint is essentially that Owen construed the law as she found it rather than ignoring the applicable law and doing what was “right.” Third, what information does Dubose have that suggests that Owen in particular was responsible for this delay in achieving consensus? He does not really identify any specifics. The court was fractured and that fact can hardly be laid at a single Justice’s feet. Fourth, Dubose gets the venue issue exactly wrong. Ford may have wanted to try the case in Dallas, but the real issue is whether venue was appropriate in Rusk County. I invite readers to re-consult the map and the venue facts and decide for yourselves who was attempting to twist Texas venue law.

In the Observer, Dubose goes to a little more trouble in explaining the supposed reason that Owen is to blame for the delay:

But two former clerks said discussion about Willie Searcy’s case was acrimonious. It was acrimonious because Priscilla Owen’s opinion was truly astounding. It was not astounding because it ruled against Susan Miles and her son, but because of how it ruled against Susan Miles and her son. According to the court’s procedural rules, the justices would inform the attorneys of the questions of law the court would consider. The attorneys would address those specific issues in their briefs and in their oral argument.

"Venue" was not among the issues–"or points of error"–the court said it would consider in Willie Searcy’s case. Venue was not briefed on the merits by Ford’s attorneys or by Willie Searcy’s attorneys. Venue was not mentioned in the oral argument on November 21, 1996. But the opinion Priscilla Owen wrote in March 1998 was based on venue.

"We felt like we got ambushed," said Ayres.

A lawyer who worked on the court agrees that Jack Ayres and Willie Searcy were ambushed. "If venue wasn’t in the points of error, it is very unusual that the court addressed it," the former court clerk said. "If the justices decide they want the court to address something not in the points of error, they would ask for additional briefing. They send letters to the parties and ask for briefing."

Owen had asked for no additional briefing.

Dubose does not cite the rules in question. Of course, courts frequently address issues sua sponte—even dispositive ones. Although the case was resolved via a closely divided 5-4 decision, the dissenters do not indicate any surprise at the majority’s decision to address the issue of venue. If the mere fact that the court were addressing the issue was so peculiar, one might have thought that the dissent would mention it. It does not. Instead, the dissenters agree that venue is the dispositive matter and address it on the merits. See Miles, 967 S.W.2d at 390-91 (Hankinson, J., dissenting)

When Dubose is not tossing out non sequiturs, spinning conspiracy theories, or misrepresenting the facts, he is engaged in argument that verges on ad hominem:

Owen is 47. Smart but not cerebral. A bit lazy. A Texas evangelical so opposed to abortion that a fellow justice called her attempt to narrow the state’s parental-consent abortion law “an unconscionable act of judicial activism.” (That justice was Alberto Gonzales, now Bush’s White House counsel.) She’s profoundly pro-business. And responsible for the most restrictive open-records ruling imposed on Texans since Santa Anna seized the diaries of the defenders of the Alamo.

I beg to differ. On the contrary, Owen is one of the brightest stars in Texas’s legal firmament. She graduated third in her class at Baylor Law School. After graduation, she achieved the highest score on the Texas Bar Exam. She received a unanimous well-qualified rating from the American Bar Association. She is a member of the American Law Institute. She has sat on the Supreme Court of Texas since 1995. In her last election in 2000, her candidacy was endorsed by all of the sizeable Texas newspapers. Prior to joining the Supreme Court, she was a partner in Andrews & Kurth, with a career in commercial litigation that spanned seventeen years. Moreover, she has a reputation for working long hours and devoting a great deal of care to opinions, including carefully articulated concurrences and dissents. In the face of her record, the accusation of laziness is laughable.

Moreover, Dubose repeats a highly questionable charge regarding Justice Gonzales’s alleged criticism of Owen’s purported activism in abortion cases. Examination of the actual opinions, see In re Doe, 19 S.W.3d 346 (Tex. 2000), reveals that Gonzales’s remarks are far more ambiguous. The bulk of Gonzales’s concurrence is devoted to addressing Justice Hecht’s livid dissent, which accuses Gonzales and the others in the majority of enacting their own policy preferences in a rather intemperate fashion. See id. at 364 et seq. (Gonzales, J., concurring); see also id. at 366 et seq. (Hecht, J., dissenting).

Gonzales does not mention Owen by name or even cite to her separate dissent; his sole reference to the “dissents” in general is about five or six sentences removed from Gonzales’s frequently cited verbiage to the effect that an excessively narrow construction of Texas’s Parental Notification Act “would be an unconscionable act of judicial activism.” Id. at 366 (Gonzales, J., concurring). Placed in the broader context of his concurrence, it is not clear that Gonzales was leveling a charge of activism against Owen. Indeed, given other passages in Gonzales’s concurrence, such an accusation regarding Owen would be strange. See id. at 365 (Gonzales, J., concurring) (noting that “every member of this Court agrees that the duty of a judge is to follow the law as written by the Legislature”).

A separate concurrence penned by Justice Enoch, who also joined Gonzales’s opinion, lends support to the notion that any criticism is directed at Justice Hecht. See id. 362 et seq. (Enoch, J., concurring). Enoch also does not reference Owen.

For her part, Justice Owen does not reference either of the concurrences—hardly an omission one would expect if she had been directly accused of activism by a fellow judge in a published opinion. In short, a reading of In re Doe does not appear to bear the weight of Dubose’s charge.

As for the open-records decision that Dubose mentions, I suppose I could look it up on Westlaw. But given his analysis of Miles and In re Doe, I am not particularly inclined to do so. Dubose’s strained, irrelevant, and weirdly hyperbolic allusion to Santa Anna and the Alamo speaks for itself.

Dubose’s articles are typical of the sort of objections that have been lodged against Owen, and they fairly illustrate why I place no stock in Democratic objections regarding her nomination.

posted by Curmudgeonly Clerk at 4:02 AM

 

Many Thanks:

Thanks to Begging to Differ, Junkyard Blog, and SW VA Law Blog for the links (here, here, and here).

I have already praised SW VA Law Blog's cornucopia of content, but Begging and Junkyard also contain lots of interesting information and commentary.

posted by Curmudgeonly Clerk at 2:49 AM

 

Life, Liberty, and Property in the Age of the Internet:

Senator Orrin Hatch (R.-UT) is being savaged in the blogosphere for his musings about the merits of self-help in reining in illicit online file-swapping. Begging to Differ compiles a fair sampling of the criticism. (Link via VodkaPundit.)

For those who haven’t heard Hatch’s thoughts, here is how The Washington Post reported his remarks:

During a discussion on methods to frustrate computer users who illegally exchange music and movie files over the Internet, Hatch asked technology executives about ways to damage computers involved in such file trading. Legal experts have said any such attack would violate federal anti-hacking laws.

"No one is interested in destroying anyone's computer," replied Randy Saaf of MediaDefender Inc., a secretive Los Angeles company that builds technology to disrupt music downloads. One technique deliberately downloads pirated material very slowly so other users can't.

"I'm interested," Hatch interrupted. He said damaging someone's computer "may be the only way you can teach somebody about copyrights."

The senator acknowledged Congress would have to enact an exemption for copyright owners from liability for damaging computers. He endorsed technology that would twice warn a computer user about illegal online behavior, "then destroy their computer."

"If we can find some way to do this without destroying their machines, we'd be interested in hearing about that," Hatch said. "If that's the only way, then I'm all for destroying their machines. If you have a few hundred thousand of those, I think people would realize" the seriousness of their actions, he said.

"There's no excuse for anyone violating copyright laws," Hatch said.

The scorn that Hatch’s remarks have generated is understandable. Internet enthusiasts are often critical of any and all measures that would potentially curtail its use and/or inhibit emerging technologies. This perspective, in conjunction with a general moral ambivalence regarding file-sharing among the public at large and a perception that organizations like the RIAA are draconian in their approach to peer-to-peer file-sharing, does little to lend sympathy to Hatch’s position.

Nonetheless, I am not as certain that Hatch’s comments, at least in broad outline and charitably construed, are as contemptible as suggested. Judging from the dearth of links and comments, a recent post by Junius that bears on this matter requires the blogoshere’s attention. He links to and excerpts from an article by Michael LaBossiere, a professor of philosophy at Florida A&M University, about a proposed bill that would allow something similar but short of what Hatch envisions:

While this proposed law and others like it might seem to be purely within the realm of law, they are philosophically interesting. While John Locke was obviously not aware of peer-to-peer networks, his philosophical views can be applied to this situation. As Locke notes, when people leave the state of nature and enter into political society, they give up their right to punish others and seek retribution. This right is transferred to the state which is to act on behalf of its citizens. This view prevails in the United States and most countries: citizens are not allowed, in general, to take the law into their own hands. Instead, the state’s law enforcement and judicial components handle such matters.

However, Locke notes that "the lack of a judge with authority puts all men in the state of nature." In this state of nature people are permitted to judge their own cases and seek retribution against those who have done them wrong. This is, of course, because they have no higher authority to which they can appeal. Locke does not, of course, endorse uncontrolled vengeance: he holds that retribution must be proportional to damage suffered and within the limits of reason and conscience.

Given that computer networks span the globe and the obvious lack of a world government (or even a truly effective international legal system), it seems evident that copyright holders and those who violate those copyrights will often be in the state of nature. As an example, US copyright holders might have their copyrights violated by people living in countries that do not recognise American legal authority or even by people who live in areas of the world that lack a centralised authority. In such cases, it would be all but impossible to bring about effective legal action against the offenders. However, being connected to the internet, the offenders are accessible to hacking. Such attacks would be practical and, more important from the philosopher’s standpoint, ethical as well, provided that the attack was limited to rendering the stolen property useless. After all, the damage would be proportional to the harm and it is a well established moral principle that a thief is not wronged when the rightful owner reclaims her property.

Clearly those who would have the Internet remain unregulated must effectuate a means of reconciling its technologies with legally protected property rights. Many seem to largely or exclusively place this burden upon copyright holders themselves. One frequently hears the suggestion that the RIAA and its allies ought to simply come to terms with recent advances in technology. And as a matter of prudent stewardship, copyright holders should do so. But certainly they are under no obligation to adopt this course. Peer-to-peer pirates are lawbreakers; copyright holders are law-abiding. The latter would be perfectly within their rights to go on living in the Twentieth Century, insisting that others respect their legally recognized rights. Thus far, they appear to be doing just that.

Of course, reasonable people can disagree as to how best to go about rectifying present circumstances. But one cannot simultaneously advocate that the online environment and its affiliated technologies remain in an unblemished state of nature while denying copyright holders any means of safeguarding their property. So barring an agreed solution, either government must intrude and protect these rights or the right-holders must have a mechanism for doing so.

Obviously, Hatch’s literal proposal is unpalatable for the same reason that peer-to-peer file-sharing is problematic; both entail substantial disregard for the property rights of others. But I am struck by the one-sidedness of the blogsophere’s reaction in this matter. Professor Reynolds, for example, evinces outrage at the threat that Hatch’s suggestion poses to “people's rights and property,” but, of course, this whole problem stems from those same “people’s” unwillingness to respect the property rights of others. Those who seek equity must do equity.

Reasonable people might also disagree regarding the extent of self-help that copyright-holders may employ in this context, if that is the road we choose to travel. However, I do not think that one can make the case that self-help remedies are, as a general matter, beyond the pale. Indeed, as a purely descriptive matter, the contention that citizens within civil societies forfeit the right to self-help is mistaken. The law typically condones self-help regarding tangible property rights. Consider, for example, Texas Penal Code § 9.41 (“Protection of One’s Own Property”):

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Section 9.43 allows individuals to exercise similar measures with reference to the property of third-persons under certain circumstances. And § 9.44 (“Use of Device to Protect Property”) provides that:

The justification afforded by Sections 9.41 and 9.43 applies to the use of a device to protect land or tangible, movable property if:

(1) the device is not designed to cause, or known by the actor to create a substantial risk of causing, death or serious bodily injury; and

(2) use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when he installs the device.

The parallel between these provisions and Hatch’s proposal is inexact. In addition, technological exigencies no doubt complicate the possibility of self-help remedies in the file-sharing context. Nonetheless, the analogy remains suggestive.

Technology allowing, a far tamer version of Hatch’s proposal strikes me as a more reasonable course. However, in fairness to the senator, he did, in fact, advocate a more limited approach, countenancing the extreme measure of authorizing the destruction of copyright infringers’ computers only as a last resort. Consider again his precise words, as reported in The Washington Post:

"If we can find some way to do this without destroying their machines, we'd be interested in hearing about that," Hatch said. "If that’s the only way, then I'm all for destroying their machines (emphasis added).

I won’t pretend to have the answer to this complex issue. But the manner in which members of the blog community present the question leads me to believe that they also do not possess the answer.

UPDATE I:

Senator Hatch subsequently issued a press release that reiterates the true nature of his remarks. In part, the Senator states: "I do not favor extreme remedies – unless no moderate remedies can be found."

UPDATE II:

Peeved with Senator Hatch’s comments, Amish Tech Support has determined that Hatch’s website employs some unlicensed, albeit free, software. (Link via Instapundit.) Irony can be delicious, but this circumstance provides a morsel rather than a meal. Hatch’s software ought to be properly licensed to be sure. However, there is a world of difference between what Hatch is guilty of and what he is condemning.

In Hatch’s case we are talking about an oversight—almost assuredly a careless failure to comply with the free software’s terms of use. Given the publicity that the issue has received, peer-to-peer pirates are engaged in a willful violation of the law. It’s the difference between negligent and knowing violations of the law. In the law of copyright, that may or may not make a difference—I am largely unacquainted with intellectual property law—but surely it makes a moral difference.

UPDATE III:

Greg of Begging to Differ reveals that I am not entirely alone in my views regarding Hatch's remarks. He links to this article in Wired that includes a lukewarm defense by Volokh Co-Conspirator Orin Kerr: "'It's just the frustration of those who are looking at enforcing laws that are proving very hard to enforce,'" said Orin Kerr, a George Washington University law professor and former Justice Department cybercrimes prosecutor."

Note: Kerr has since clarified that he intended his comments not as a defense but rather as an explanation of Hatch's supposed proposal, which he considers a bad idea. (Link via Begging to Differ.)

UPDATE IV:

There is a wealth of commentary out there on this topic. I cannot possibly hope to link to it all. But I thought I would point out a few posts for your consideration that, perhaps, detract from the strength of my arguments.

Copyfight has a roundup of some blog postings on the issue, as well as an interesting excerpt from a discussion about technological self-help by Harvard law professor Charles Nesson, all of which can be accessed here.

Additionally, Copyfight also links to an intriguing discussion of the nature of copyright by Matt Morse. Morse also has a longer entry related to Hatch’s comments here.

Finally, the indispensable Professor Solum questions the validity of LaBossiere’s musings about copyright and the global state of nature.

UPDATE V:

In the wake of Hatch's near-universally ill-received musings, Orin Kerr has a post suggesting that, perhaps, state (as opposed to federal) prosecutors ought to be authorized to prosecute copyright crimes, with the proviso that the punishment regime be suitably proportionate.

posted by Curmudgeonly Clerk at 12:24 AM

 

Proposed Unpublished Opinions Rule:

How Appealing has provided an advance copy of the proposed rule regarding citation of federal appellate “unpublished” opinions:

Rule 32.1. Citation of Judicial Dispositions

(a) Citation Permitted. No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions.

(b) Copies Required. A party who cites a judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database must file and serve a copy of that opinion, order, judgment, or other written disposition with the brief or other paper in which it is cited.

I am somewhat skeptical regarding this development. It seems to me that this rule will, in the end, rob the circuits of the supposed economies achieved by the unpublished opinions rules, notwithstanding the fact that the non-precedential status of such opinions remain untouched by the new rule. See Alex Kozinski & Stephen Reinhardt, Please Don’t Cite This! Why We Don’t Allow Citation to Unpublished Opinions, Calif. Lawyer, June 2000, at 43.

Of course, as I noted here, in the Fifth Circuit Court of Appeals, the immediate effect of this rule could only be psychological. Fifth Circuit Rule 47.5 already, more or less, allows free citation of unpublished opinions; it merely discourages the practice.

But in the long run, it also seems to me that this is a prelude to eventual elimination of the non-precedential status of unpublished opinions. Proposed Rule 32.1(a) does not just state a rule, it implicitly offers a justification for itself. That is, it advances a rationale for its existence:

. . . unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions.

Translation: all judicial opinions of the same court are coequal and must be treated alike. Under the proposed rule, a circuit court could apparently continue to forbid citation to unpublished opinions—so long as it also forbids citation of published ones as well! Obviously, this is not an option that any circuit would consider. Instead, this portion of the rule appears to be no more than an argument by reductio ad absurdum.

How many appellate rules can you name that contain an argument for their existence in the text of the rule itself?

Or am I missing something? Are there other, general citation limitations that generally apply to all appellate opinions, published and unpublished alike, that this clause of the rule seeks to safeguard?

ADDENDUM:

Earlier, I noted the manner in which the blogosphere is impacting the transmission of legal ideas in academia. I take it that Howard Bashman’s early, unofficial publication of the proposed rule and my public comment on the proposal—all before the rule has even been officially released for comment—demonstrate that the potential impact of blogs is not confined to the ivory tower.

UPDATE I:

SW VA Law Blog has a very interesting post on the use of unpublished opinions in Virginia. Incidentally, if you have never visited SW VA Law Blog, I highly recommend it. It provides frighteningly detailed and complete coverage of legal news in the Old Dominion State. Every state should have such a blog.

UPDATE II:

Will Baude is also highly skeptical of the proposed rule that would render unpublished appellate opinions uniformly citeable. Like myself, he concurs with the analysis offered by Judges Kozinski and Reinhardt, but he goes on to add some very interesting observations of his own, which can be viewed here.

posted by Curmudgeonly Clerk at 11:17 AM

 

The Electronic Evolution of Legal Scholarship:

Glenn Reynolds rhetorically asks whether a blog entry can amount to scholarship, but nonetheless proceeds to answer his own question by citing one of the many scholarly posts over at Professor Solum’s Legal Theory Blog.

Not only can blog entries be scholarly, I think that Professor Reynolds’s question touches on an incipient phenomenon in legal publishing and debate. The self-publishing revolution facilitated by products like Blogger promises to change the nature of scholarship in general, I think.

I do not expect books and traditional scholarly media to wither away and disappear entirely, but self-publication has serious advantages. One need not bother with the submission process on the front end. Nor is one hostage to the publication schedule of law reviews and journals. It is also cost-effective; one can simply make a paper downloadable in a variety of formats, subtracting paper costs from the front-end of the publication process. Of course, readers can also view the document without ever printing a copy if they so desire.

The sole disadvantages of self-publication are its relative novelty and the absence of editorial assistance. Novelty is always a downside among the precedent-bound legal class. But if one is willing to do one’s own Bluebooking, then the absence of editorial assistance is not really much of a disadvantage.

As it was, the prestigious law reviews were already declining somewhat in status and importance due to the electronic research revolution. Publication by blog is a natural extension of this phenomenon. Granted, there are advantages to large centralized electronic legal libraries like Westlaw and Lexis that blogs lack. But outside of academia such services are costly and search engines like Google make materials readily available and searchable over the Internet. (Just ask yourself, how did you come to be reading this particular entry on a relatively obscure blog in an ever-expanding universe of relatively cost-free online content?)

Orin Kerr of the Volokh Conspiracy has made a similar point, reflecting on the ways in which blogs and SSRN might alter the media of legal scholarship. (To Professor Solum’s credit, his excellent Legal Theory Blog also served as the inspiration for Kerr’s observations.) Sites like SSRN also serve to ameliorate the disadvantages of non-traditional publication by providing an alternative electronic clearing house for new articles.

Of course, sometimes lengthier blog entries (like those for which Professor Solum is so well-known) are themselves scholarly in nature and worthy of citation even in the absence of a more formal article format. Recognizing this, one observer with a keen vision of things to come has already suggested that a uniform citation format for blog entries needs to be adopted.

posted by Curmudgeonly Clerk at 12:32 AM

 

Rules, Norms, and Interpretation:

Continuing our ongoing discussion regarding the propriety of supermajoritarian confirmation requirements and their legal basis and historical pedigree (see previous posts here, here, here, here, and here), Will Baude makes some interesting arguments in the “update” to his final post thus far.

The whole post is worth reading in its entirety. In particular, I like Baude’s response regarding the optimum threshold requirement for supermajoritarian voting requirements (i.e., that although supermajoritarian confirmation requirements foster compromise, beyond a certain point hold-out problems generate more difficulties than they are worth).

Nonetheless, there are certain arguments that appeal to me considerably less. For example, Baude generally discounts the role of norms in the Senate beyond political considerations and also does not view the Senate as having had much a simple majoritarian norm regarding confirmation of judicial nominees, notwithstanding the contrary institutional history. Baude’s view in this regard appears to be colored by a very literal and minimalist reading of the text of Senate Rules XIX and XXII:

But if he thinks that it's wrong to use the rules as written because of an understanding that the rules mean something other than what they say, then the burden of proof is on him to show why nobody thought they meant this. And the simple fact that nobody had done it before hardly does it. There are all sorts of reasons that something could be perfectly "within the rules" without anybody thinking that the rule didn't count. (One such example from another context is the use of the "excessive fines" or "excessive bail" clauses from the Eighth Amendment. Just recently, Justice Thomas wrote the Court's first decision ever striking down a fine as excessive, and the court has still never ruled a "bail" to be unconstitutional. But this hardly means that there's a norm against declaring them unconstitutional. History needs more.)

I think that Baude is essentially applying a textualist approach to Rules XIX and XXII. He thinks that the text is plain on its face and therefore requires no reference to legislative history in divining its meaning. I think that this approach is mistaken for a couple of different reasons.

First, I do not believe that the rules are as clear as Baude contemplates. The complete text of the Senate rules at issue read as follows:

RULE XIX

DEBATE

1. (a) When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.

(b) At the conclusion of the morning hour at the beginning of a new legislative day or after the unfinished business or any pending business has first been laid before the Senate on any calendar day, and until after the duration of three hours of actual session after such business is laid down except as determined to the contrary by unanimous consent or on motion without debate, all debate shall be germane and confined to the specific question then pending before the Senate.

2. No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.

3. No Senator in debate shall refer offensively to any State of the Union.

4. If any Senator, in speaking or otherwise, in the opinion of the Presiding Officer transgress the rules of the Senate the Presiding Officer shall, either on his own motion or at the request of any other Senator, call him to order; and when a Senator shall be called to order he shall take his seat, and may not proceed without leave of the Senate, which, if granted, shall be upon motion that he be allowed to proceed in order, which motion shall be determined without debate. Any Senator directed by the Presiding Officer to take his seat, and any Senator requesting the Presiding Officer to require a Senator to take his seat, may appeal from the ruling of the Chair, which appeal shall be open to debate.

5. If a Senator be called to order for words spoken in debate, upon the demand of the Senator or of any other Senator, the exceptionable words shall be taken down in writing, and read at the table for the information of the Senate.

6. Whenever confusion arises in the Chamber or the galleries, or demonstrations of approval or disapproval are indulged in by the occupants of the galleries, it shall be the duty of the Chair to enforce order on his own initiative and without any point of order being made by a Senator.

7. No Senator shall introduce to or bring to the attention of the Senate during its sessions any occupant in the galleries of the Senate. No motion to suspend this rule shall be in order, nor may the Presiding Officer entertain any request to suspend it by unanimous consent.

8. Former Presidents of the United States shall be entitled to address the Senate upon appropriate notice to the Presiding Officer who shall thereupon make the necessary arrangements.

RULE XXII

PRECEDENCE OF MOTIONS

1. When a question is pending, no motion shall be received but

To adjourn.

To adjourn to a day certain, or that when the Senate adjourn it shall be to a day certain.

To take a recess.

To proceed to the consideration of executive business.

To lay on the table.

To postpone indefinitely.

To postpone to a day certain.

To commit.

To amend.

Which several motions shall have precedence as they stand arranged; and the motions relating to adjournment, to take a recess, to proceed to the consideration of executive business, to lay on the table, shall be decided without debate.

2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting—then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Thereafter no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate, or the unfinished business, the amendments thereto, and motions affecting the same, and it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks. Except by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close, unless it had been submitted in writing to the Journal Clerk by 1 o'clock p.m. on the day following the filing of the cloture motion if an amendment in the first degree, and unless it had been so submitted at least one hour prior to the beginning of the cloture vote if an amendment in the second degree. No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.

After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before the final vote begins. The thirty hours may be increased by the adoption of a motion, decided without debate, by a three-fifths affirmative vote of the Senators duly chosen and sworn, and any such time thus agreed upon shall be equally divided between and controlled by the Majority and Minority Leaders or their designees. However, only one motion to extend time, specified above, may be made in any one calendar day.

If, for any reason, a measure or matter is reprinted after cloture has been invoked, amendments which were in order prior to the reprinting of the measure or matter will continue to be in order and may be conformed and reprinted at the request of the amendment's sponsor. The conforming changes must be limited to lineation and pagination.

No Senator shall call up more than two amendments until every other Senator shall have had the opportunity to do likewise.

Notwithstanding other provisions of this rule, a Senator may yield all or part of his one hour to the majority or minority floor managers of the measure, motion, or matter or to the Majority or Minority Leader, but each Senator specified shall not have more than two hours so yielded to him and may in turn yield such time to other Senators.

Notwithstanding any other provision of this rule, any Senator who has not used or yielded at least ten minutes, is, if he seeks recognition, guaranteed up to ten minutes, inclusive, to speak only.

After cloture is invoked, the reading of any amendment, including House amendments, shall be dispensed with when the proposed amendment has been identified and has been available in printed form at the desk of the Members for not less than twenty four hours.

The current supermajoritarian confirmation norm—the filibuster—is the result of the intersection of Rule XIX.1(a) and Rule XXII.2. If it is not obvious to the reader why this is so, Professor Solum has written a pithy summary of the rules’ dynamic here.

What also comes across from Professor Solum’s summary is that the actual meaning of the Rules is dependent upon rulings from the presiding Chair and a simple majority’s view of those rulings. Given that the use of the filibuster in the judicial confirmation context is a novelty, there is no direct precedent to draw upon when it comes to parliamentary rules interpretation. So the propriety of the filibuster in this context is something of an open question, notwithstanding the text of the rules. Baude’s understanding of the filibuster and the confirmation process fails to take account of this procedural dynamic altogether. And I think that this failure, in conjunction with the traditional absence of the filibuster’s employment in this context, seriously undercuts his theory of supermajoritarianism.

Indeed, so open and unsettled is this question that the constitutional propriety of such supermajoritarian requirements imposed by mere Senate rule have been questioned. At one time or another, Lloyd Cutler (former counsel to Presidents Carter and Clinton), Senate Minority Leader Daschle (D.-SD), Senators Lieberman (D.-CT) and Harkin (D.-IA), and Carter-appointed appellate judge Harry Edwards have all opined on the perceived unconstitutionality of supermajoritarian confirmation requirements. Such contentions hardly settle the matter, but they certainly do indicate the unsettled nature of the terrain.

Second, as a descriptive matter, I also think that the textualist approach is mistaken in this case (and may, perhaps, be mistaken in general). Even textualists are not slavishly devoted to textualism. Consider the comparatively elementary text of the Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Think you know what the Eleventh Amendment means by eyeballing the text? Well, think again. The text alone is hardly decisive or controlling. See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

Critics of the conservatives on the Supreme Court lambaste them for this apparent deviation from textualism. But I think that these cases were properly decided, notwithstanding the text, and can fairly be regarded as adherence to prior precedent. That is, the Court might fairly be regarded as having conformed its decisions to precedent and history that indicated a result contrary to the literal words of the text. Stated otherwise, the context in which one reads the text can sometimes be decisive, producing interpretations that otherwise do not conform to the words. This is a mode of interpretation that we all engage in everyday in construing the language of others; the same phrase, spoken or written, can often have radically differing meanings depending on the context.

In this case, the context in which the current filibusters are being waged is similarly suggestive. There simply is no precedent for this supermajoritarian conduct in the confirmation process. That is why, in addition to the procedural context discussed above, the present employment of the filibuster is so incredible and violative of the norms of the Senate.

Of course, as Baude suggests by referencing United States v. Bajakajian, 524 U.S. 321 (1998), institutions do sometimes break with precedent in dramatic fashion. But his reference to Bajakajian proves too much inasmuch as the Court’s majority therein entirely broke with the history of the Court’s relevant jurisprudence. See id. at 344-45 (Kennedy, J., dissenting). To cite Bajakajian as a judicial analog to and justification of the Senate’s recent supermajoritarian confirmation conduct inadvertently concedes the radical nature of the latter in terms of historical context. As I have indicated previously, I think that a reasonable case can be made that lengthy historical practice is often suggestive of constitutional legitimacy. Longstanding custom and practice help frame our constitutional order in conjunction with our written constitutional text. Marked breaks with this tradition are, at the least, subject to great scrutiny.

Finally, I think that Baude miscalculates in his esteem of senatorial norms and their proper role when he writes that:

I think Senatorial norms (if they exist) are self-enforcing. . . . But a lot of people don't follow that norm, and they certainly aren't required to. That's the difference between norms and laws.

Given the historical context, I do not doubt the existence of a simple majoritarian confirmation norm. Baude’s point about norms being self-enforcing is, of course, correct. But what I think is missing from his observation is the falling of the second shoe: when internal constraints fail to govern, outside constraints are imposed. If any minority party attempts to dispense with the prevailing norm on a regular basis or over an extended period of time (viz. with reference to several judicial nominees, or, perhaps, regarding a single Supreme Court nominee), then the thwarted majority will eventually replace the understood norm with a rule of law—a rule that will abolish any pretense of supermajoritarianism in the confirmation process. Republicans in the Senate have, of course, already held hearings with an eye toward this sort of rule change.

posted by Curmudgeonly Clerk at 12:05 AM

 

How Not to Win Friends and Influence People:

Joshua Claybourn and the proprietor of Law, Politics & Press have differing interpretations of this New York Times editorial that takes AG Ashcroft to task for the recent brouhaha over Gay Pride Month in the Department of Justice.

I think both Claybourn and Law, Politics, & Press are each right in their own way. The latter is correct in noting that the New York Times is criticizing Ashcroft for his apparent failure to enforce the DOJ’s own purported non-discrimination policy; the former is right insomuch as his criticism questions the wisdom of establishing policies within governmental agencies that recognize and sanction interest groups and their activities.

Setting aside the merits, Ashcroft’s conduct exemplifies the modus operandi of certain inept politicians. They first make a controversial decision that will please members of their core constituency. They subsequently come under heavy criticism from the center and their opponents. Then they backpedal in a half-hearted fashion that infuriates their own backers and emboldens their critics who now smell blood in the water.

The end result is that everyone is alienated.

posted by Curmudgeonly Clerk at 8:15 PM

 

Supermajorities & Confirmation of Judicial Nominees:

Will Baude of Crescat Sententia has a couple of responses (here and here) regarding my criticism of Professor Resnik’s proposed institutionalization of a supermajority requirement for confirming judicial nominees.

Baude suggests that I probably do not think highly of the filibuster in general. I certainly do not think highly of its present employment. However, as I indicated here, I am for retaining the filibuster rule undiluted. I do not, however, think that it would be wise to alter longstanding historical norms in the confirmation process. We have a perfectly serviceable supermajority rule at present—the filibuster.

However, I also think that Baude fails to appreciate the historical uniqueness of the present situation. Until the filibusters of Miguel Estrada and Priscilla Owen, the only nominee to have been filibustered was Abe Fortas, who resigned from the Court in disgrace not long afterward. Present circumstances are not even arguably similar. What is occurring is a marked deviation from the customs and norms that mark the confirmation process. A simple majority is all that has traditionally been required for confirmation. Those who would deviate from longstanding customs bear the burden of proof. So what is Resnik et al.’s suggested justification? Apart from immediate political expediency—Resnik testified against the Bork nomination and presumably does not care for President Bush’s nominees either—the justification escapes me.

Baude himself does not suggest much in the way of justification for altering the Senate’s norms. He does correctly argue that supermajority rules force compromise. And I happen to like this aspect of supermajority rules. But that does not gainsay that such a rule has hitherto not existed for judicial nominees, that filibusters simply have not been employed for ideological ends in the confirmation process before. This is why I think Baude misses the point when he asks “what’s so great about majoritarianism?”

Moreover, setting aside the facts of our confirmation history we have a classic line-drawing problem here. If a supermajority rule would force compromise, then, a fortiori, a 75-vote requirement would require more compromise. Eighty would require even more. If consensus is a greater virtue than simple majoritarianism, then why not require these even greater thresholds? Is there any point at which a non-majoritarian Senate confirmation rule would become unreasonable? Would a unit rule (i.e., complete unanimity) be fine so long as the Senate recognized it as its confirmation norm? Would Senator Clinton’s lone political vote against Chertoff be sufficient grounds to withhold confirmation? Would Baude concede that at least at some point along this continuum the federal judiciary’s institutional independence might be endangered?

Baude, I think, fails to apprehend the potential consequences of altering longstanding norms. Consider as a thought experiment what might happen if the Senate insisted upon supermajoritarian confirmation of the President’s cabinet nominations, for example. Imagine the manner in which Senate minorities might impose their will on any given administration by effectively refusing to consent to said nominations. Occasionally, it does just that (e.g., John Tower). But such occasions are rarities; presidents are traditionally granted wide latitude in the composition of their cabinets. Attorney General Ashcroft was confirmed 58-42. Under a supermajoritarian norm he would have been defeated. Taken to its logical extreme, such a supermajoritarian norm could force presidents facing closely divided Senates to form quasi-parliamentarian coalition administrations. One might make a case for such a form of governance, but it is obvious that it is not our present form or anything like it. Because the federal judiciary is not like the political branches, the effects of a supermajoritarian norm might not be as obvious. But surely there must be some effect of changing horses midstream.

All Deliberate Speed suggests that the federal judiciary would be fairly depopulated if the rule required anything more than a simple majority for confirmation. And ADS is probably right to some extent. Just consider the confirmation process in the 108th Congress. To date, there have been 26 appellate nominations. Of these, 14 are carryovers from the 107th Congress who were not voted on, and 12 of the unfilled slots are for vacancies designated as judicial emergencies by the National Judicial Conference. Likewise, 12 of the 26 have not even had hearings in the judiciary committee. Of the 26, a mere 8 have been confirmed: Bybee, Callahan, Chertoff, Cook, Prado, Roberts, Sutton, Tymkovich. If a supermajority requirement were in place, Sutton and Tymkovich would not have been confirmed; their votes were 52-41-7 and 58-41-1 respectively. Estrada and Owen are being filibustered. Pickering and Kuhn are thought to be likely to be filibustered as well. See generally DOJ Office of Legal Policy; U.S. Senate Roll Call Tables.

Bear in mind also that there is already a substantial amount of countermajoritarian chicanery to go around even in the absence of a filibuster or a general supermajoritarian requirement (e.g., blue slips).

In addition, Baude misses the mark when he suggests that “it's rare that the presidential and senate stars come into alignment and stay there for a long time.” This has been the recent experience, but it is not foreordained. As noted in the Senate’s brief overview of nominations, “[f]rom 1897 to 1955, the presidency and the Senate were in the hands of the same party for all but four years (1919-1921 and 1947-1949)." I think Baude’s failure to recognize this fact leads him to discount the seriousness of present circumstances. Imagine what might happen if the same party occupies the executive and controls the Senate for any lasting duration. An extended period of time featuring this sort of obstruction of majority party nominees could undermine the very supermajority constraints that Baude admires so much. Indeed, it may not take that long. Does Baude (or anyone else) imagine that the majority will accept this sort of behavior in the case of a Supreme Court nominee or nominees? Bork was rejected 42-58 in a Senate that lay in the hands of the opposite party of the president in the latter days of his presidency. Surely the present majority would not accept a 51-49 defeat of a Supreme Court nominee, notwithstanding the assent of the majority. As Professor Solum has artfully illustrated, the present stand-off has the potential to permanently and entirely destroy the Senate’s supermajoritarian tendencies.

UPDATE:

Will Baude now has a third post on this subject.

posted by Curmudgeonly Clerk at 1:33 AM

 

The History of the Gavel:

Garrett Moritz passes along the suggestion that the modern day gavel is descended from Thor's supernatural hammer Mjollnir.

posted by Curmudgeonly Clerk at 2:17 AM

 

A Supermajority Confirmation Requirement?

Yale Law Professor Judith Resnik had an editorial in this past Wednesday’s New York Times advancing the idea that all Article III nominees ought to have to garner 60 + votes in order to be confirmed to the bench. She writes:

The appointment of judges with life tenure is a unique event in the American democratic system. Members of Congress and the president stay in power only if they convince voters to re-elect them—and even popular presidents have to quit after two terms. But life-tenured federal judges serve for decades.

Partly for this reason—and because of the federal judiciary's ever-growing importance in American life—the Senate should strive for more agreement, not less, in approving judicial appointments. How many senators should it take to approve a judicial nominee? The Senate majority leader, Bill Frist, is urging the Senate to revisit its filibuster rules to make it easier for a bare majority to install a judge for life. Instead, the Senate should leave those rules in place and add a requirement that 60 votes are needed for life-tenured appointments to the federal courts.

* * *

Congress and the courts, working together, have done a remarkable job creating a substantial, important judicial system. At the top of this hierarchy sit life-tenured judges. Careful deliberation over nominees to these judgeships is crucial. Especially when the Senate is almost evenly divided, a supermajority requirement is one good way for the Senate to fulfill its constitutional duty to give advice and consent on judicial appointments.

* * *

By constitutional design, Congress is periodically reauthorized through elections. It ought to take a supermajority of the Senate to confer power on judges who will exercise it for their rest of their lives.

Resnik has long been a proponent of robust senatorial involvement in the confirmation process. See generally Judith Resnik, Changing Criteria for Judging Judges, 84 Nw. U. L. Rev. 889 (1990). But to my (limited) knowledge, this is the first time that anyone has advocated anything like a universal supermajority requirement for judicial confirmation.

My initial reaction to this proposal is that it amounts to a sleight of hand. Rather than demanding that parties in the minority openly thwart the democratic process and risk the ire of the public that endorsed the present legislative majority, Resnik proposes to strip all sense of obstructionism from the act. All nominees would have their day on the floor. Under Resnik’s scheme, Miguel Estrada and Priscilla Owen would both get an up-or-down vote, but neither would be confirmed and their minority party detractors could smilingly declare that the wheels of government were rolling along apace. Resnik argues that:

[t]his approach is not likely to be popular with the party in power, since supermajority requirements empower minorities. But given the large number of federal judgeships, the minority party will be reluctant to expend political energy or capital too often.

The problem with Resnik’s reasoning is that in a relatively closely divided Senate—the senatorial balance of power that seems to be the status quo of late—it would require no political energy or capital to reject a nominee under a supermajority regime. The minority can simply proceed on autopilot, voting the party line and rejecting the president’s nominees without ever being forced to take the politically risky step of announcing that it has suspended the majoritarian norms that predominate in the American polity.

Indeed, what Resnik is proposing is that a majority norm be replaced with a supermajority one, albeit in a limited context. If the norms were so altered, then there would be no consequence for rejecting judicial nominees that command the support of a simple majority. Such rejection would constitute business as usual under the new rules. Resnik writes that,

. . . when 41 senators say a particular person is ill suited for an appointment to the bench—it is time to pause.

But therein lies the difficulty with her proposal. There would be no pause. A vote would occur and the hapless nominee would be procedurally rejected in the blink of an eye, as a matter of course, notwithstanding majority assent to his or her nomination.

What presently constrains antidemocratic tactics in the Senate are potential political consequences. One can always suspend the majoritarian norms in the upper house of our bicameral legislature via the filibuster, but one cannot do so unnoticed. While countermajoritarian devices undoubtedly have their place in a democratic Republic, one should have to forthrightly acknowledge and accept responsibility for their use. Under the present framework, the interruption of majority rule in the Senate is, with few exceptions, an event. Such interruptions would be transformed into non-events under Resnik’s proposal.

In addition, it is probably deleterious to make prospective members of the federal bench any more dependent on the good will of the legislative branch than it already is. The federal judiciary, as an institution, already stands in Congress’s long shadow. This factor, in part, is what makes Resnik’s suggestion so odd. Or rather, it is odd to see this particular suggestion pour forth from the pen of Professor Resnik, because she has remarked on the institutional frailty of the judiciary before:

As I watch the interactions between Congress and the federal courts, I am struck by how much reliance there is on the good will of both branches. The Constitution provides few structural protections for the judiciary as an entity. In conversations about judicial independence, a common assumption is that Article III is not only the paradigm of independence but also the pinnacle of how such independence can be achieved. Yet, in terms of separation of powers, Article III looks thin. It provides only for life tenure and individual salary protection, and misses the institutional needs of a judiciary, functioning in an administrative state either as a branch of government or as a provider of services to the millions of litigants that seek its attention. As the judiciary transforms itself, in part to meet those needs, it is ever more reliant on Congress—for staff, for surrogate and subsidiary judges, for its very ability to work, let alone to be a player in governance.

Judith Resnik, Judicial Independence and Article III: Too Little and Too Much, 72 S. Cal. L. Rev. 657, 668 (1999).

In a footnote that accompanies the above passage, Resnick further observes:

My point is that the vulnerability of the courts to Congress has grown over the past decades, that the judiciary is not only dependent but increasingly so.

Id. at 668 n.60.

Resnik’s inexplicable proposal would ultimately have the effect of rendering the confirmation process in the Senate less democratic while simultaneously further eroding the institutional independence of the judiciary.

posted by Curmudgeonly Clerk at 1:03 AM

 

The State, Religion, and the Law:

Timothy Sandefur of Freespace notes my earlier discussion of Thomas Jefferson’s views on the separation of church and state and the relationship between religious belief and the law. Sandefur goes on the elaborate on Jefferson’s views and adds some intriguing commentary from a distinctly non-religious perspective as well.

You can find his thoughts on the subject here.

posted by Curmudgeonly Clerk at 12:56 AM

 

Many Thanks!

Technorati actually seems to be working this evening and informs me that Southern Appeal and Professor Solum have added The Curmudgeonly Clerk to their blogrolls.

To my knowledge, the likewise anonymous proprietor of Southern Appeal is the only other law clerk who is blogging on law and politics on a regular basis these days. It's a good website and is the clearing house for all news related to the nomination of Bill Pryor to the Eleventh Circuit Court of Appeals.

Professor Solum runs the Legal Theory Blog. It is very flattering to be added to his site's distinguished listing of blogs. Of the blogs that I read on a regular basis, Solum's is routinely the most thought-provoking.

An Aside:

I also notice that Professor Solum's site occasionally features the equally thoughtful musings of Professor Brian Leiter, which begs the question: Why doesn't Professor Leiter have his own blog yet?

posted by Curmudgeonly Clerk at 12:41 AM

 

Nat Hentoff’s Arguments Do Not Make The Grade:

It is difficult to take someone’s arguments seriously when his delivery leaves you covered in spittle. Take this editorial in The Washington Times by Nat Hentoff disparaging Eleventh Circuit nominee Bill Pryor, for example. (Link via Pryor Nomination Central: Southern Appeal)

Regarding an amicus brief with which Pryor was associated in his present capacity as Alabama’s Attorney General, Hentoff argues that:

. . . Mr. Pryor is capable of such extremism that a unanimous U.S. Supreme Court, in a decision written by Antonin Scalia, rejected Mr. Pryor's definition of federalism, which was included in his amicus brief and claimed municipalities have a "state sovereignty" right to be exempted from federal laws . . . .

Not even the 19th-century secessionists advocated such reckless undermining of federal law. And Justice Scalia, dismissing Mr. Pryor's argument, is hardly one of the court's liberals.

This argument is so specious, one hardly knows where to begin. Let us first take up the issue of the amicus brief’s authorship. The brief is available on Westlaw at 2003 WL 145530. It was jointly signed onto by the states of Alabama, Colorado, Delaware, Georgia, Hawaii, Indiana, Iowa, Kansas, Mississippi, Missouri, New Jersey, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, Utah, and Virginia. Counsel of record for the amici curiae was a lawyer with the Washington D.C. office of the prestigious firm Sidley, Austin, Brown & Wood, LLP. I guess they are all just extremists too. Or were they just naïve rubes, single-handedly duped into joining the brief by the diabolical Messr. Pryor?

The question in the case at issue, Jinks v. Richland County, S.C., 123 S. Ct. 1667 (2003), was relatively boring and uncontroversial. Justice Scalia, writing for the Court characterized the question as follows:

The Supreme Court of South Carolina dismissed petitioner's lawsuit against respondent as time-barred. In doing so it held that 28 U.S.C. § 1367(d), which required the state statute of limitation to be tolled for the period during which petitioner's cause of action had previously been pending in federal court, is unconstitutional as applied to lawsuits brought against a State's political subdivisions. The issue before us is the validity of that constitutional determination.

Jinks, 123 S. Ct. at 1669.

The amici summarized their proposed answer to this question as follows:

In Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002), this Court faced an issue virtually identical to the issue presented here. There, the State defendants argued that, under this Court's Eleventh Amendment cases, 28 U.S.C. § 1367(d) was unconstitutional as applied to arms of non- consenting States. But rather than decide that issue, the Court determined that Section 1367(d) did not need to be construed so broadly. And, because of the constitutional doubt and reallocation of federal-state power such a construction would create, the Court construed that provision as not applying to arms of non-consenting States. Here too, a State-created defendant argues, and the South Carolina Supreme Court held, that under this Court's Tenth Amendment decisions, Section 1367(d) is unconstitutional as applied to political subdivisions of non-consenting States. And here too, although the argument for unconstitutionality is compelling, the Court can and should avoid the constitutional issue by declining to read the provision as extending to claims against the States' political subdivisions.

* * *

Amici thus urge the Court to do here what it did in Raygor: construe Section 1367(d) as excluding claims against this defendant and similarly situated State-created entities, and allow Congress to determine whether it is really necessary to decide the constitutional issues posed by petitioner's interpretation.

Amici’s Brief, 2003 WL 145530, at *4-5.

A unanimous Court rejected this argument. Justice Scalia wrote:

Respondent next maintains that § 1367(d) should not be interpreted to apply to claims brought against a State's political subdivisions. We find this contention also to be without merit.

The South Carolina Tort Claims Act, S.C.Code Ann. § 15-78-10 et seq. (West Supp.2002), confers upon respondent an immunity from tort liability for any claim brought more than two years after the injury was or should have been discovered. In respondent's view, § 1367(d)'s extension of the time period in which a State's political subdivisions may be sued constitutes an impermissible abrogation of "sovereign immunity." That is not so. Although we have held that Congress lacks authority under Article I to override a State's immunity from suit in its own courts, see Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), it may subject a municipality to suit in state court if that is done pursuant to a valid exercise of its enumerated powers, see id., at 756, 119 S.Ct. 2240. Section 1367(d) tolls the limitations period with respect to state-law causes of action brought against municipalities, but we see no reason why that represents a greater intrusion on "state sovereignty" than the undisputed power of Congress to override state-law immunity when subjecting a municipality to suit under a federal cause of action. In either case, a State's authority to set the conditions upon which its political subdivisions are subject to suit in its own courts must yield to the enactments of Congress. This is not an encroachment on "state sovereignty," but merely the consequence of those cases (which respondent does not ask us to overrule) which hold that municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit.

Nor do we see any reason to construe § 1367(d) not to apply to claims brought against a State's political subdivisions absent an "unmistakably clear" statement of the statute's applicability to such claims. Although we held in Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002), that § 1367(d) does not apply to claims filed in federal court against States but subsequently dismissed on sovereign immunity grounds, we did so to avoid interpreting the statute in a manner that would raise "serious constitutional doubt" in light of our decisions protecting a State's sovereign immunity from congressional abrogation, id., at 543, 122 S.Ct. 999. As we have just explained, however, no such constitutional doubt arises from holding that petitioner's claim against respondent—which is not a State, but a political subdivision of a State—falls under the definition of "any claim asserted under subsection (a)." (Emphasis added.) In any event, the idea that an "unmistakably clear" statement is required before an Act of Congress may expose a local government to liability cannot possibly be reconciled with our holding in Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), that municipalities are subject to suit as "persons" under § 1983.

Jinks, 123 S. Ct. at 1672-73.

Now anyone familiar with Justice Scalia’s writing immediately recognizes when he holds an idea in contempt. Although the Court views the amici’s argument as mistaken, one gets no hint that the argument is frivolous. Scalia’s poisonous wit is nowhere to be found.

Setting aside the merits of the amici’s argument, Hentoff fails to recognize the obvious difference between Pryor’s role as advocate in his capacity as a state official and the espousal of personal viewpoints. By Hentoff’s logic, motions to suppress evidence authored and filed by criminal defense attorneys represent not legal advocacy on behalf of a client but personal solicitude for criminals. Pryor did not participate in Jinks in his personal capacity or as a hired gun from an ideological think-tank or legal foundation.

Finally, with regard to the supposed extremism of the amici’s position, does Hentoff really expect readers to take seriously the laughable assertion that the amici’s argument, if accepted, would be more pernicious to the health of the Republic than the ideas of the secessionists? Note to Hentoff: the secessionists proposed to dissolve the Union, eventually by force of arms. Bill Pryor qua Attorney General of Alabama signed a brief that proposed considerably less.

Hentoff continues with the following gem:

As for the separation of church and state, Mr. Pryor, in a speech four years ago to the Christian Coalition, declared unambiguously that "we derive our rights from God and not from government." Why, then, do we have a Constitution in which there is no mention of God, except for the date of the end of the 1787 Constitutional Convention? And what of American citizens who are nonbelievers? If government abuses their rights, have they no recourse but a religious conversion?

It is perplexing that Hentoff construes Pryor's remarks as a commentary on the separation of church and state. I can only attribute such a construction to denseness or disingenuousness. In the Declaration of Independence, Thomas Jefferson wrote:

We hold these truths to be self-evident:

That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

There is nothing inconsonant with the primacy of the Constitution in American government and a belief in God-given natural rights. Thomas Jefferson clearly viewed the raison d’etre of government as the protection of such divinely bequeathed rights. Jefferson’s views in this matter are of great weight being that the separation of church and state was one of his chief concerns. He is the very man who articulated the figurative “wall of separation” between the two institutions. See Letter to the Danbury Baptists (Jan. 1, 1802).

Hentoff next contends that Pryor is unfit to serve on the bench because he has attributed his decision to become a lawyer to a desire “to fight the ACLU.” Reasonable people can disagree as to the merits of any given ACLU position. But it well-known that the legal stands taken by the ACLU are frequently very controversial. Apparently recognizing that defining Pryor as an extremist on the basis of his general view of the ACLU is a non-starter, Hentoff lamely appears to argue that Pryor’s opinion would, at least, require Pryor to recuse himself in any case in which the counsel of record was an ACLU attorney.

To this one can only wonder if Hentoff even knows what the standards for recusal are. See generally 11th Cir. R. 47-6 (IOP 9); 28 U.S.C. Secs. 144, 455; Code of Judicial Conduct for United States Judges Canon 3C (1973). Although impartiality, personal bias, or prejudice concerning a party may form grounds for disqualification thereunder, mere political disagreement, disapproval or predisposition is not likely sufficient. See, e.g., Rosquist v. Soo Line R.R., 692 F.2d 1107, 1112 (7th Cir. 1982) (holding that judge “was not required . . . to recuse himself merely because he holds and had expressed certain views on that general subject” and that judge’s “general tenets are not so case-specific that they would predetermine his position in this particular case, even if . . . arguendo . . . specific views previously expressed outside of court could disqualify a judge”). As a practical matter, if strong political beliefs were enough to merit disqualification, then the federal bench would practically be empty. Moreover, any alleged bias “[o]rdinarily . . . must be against the party, and bias against the party's lawyer will not suffice . . . .” Wright & Miller, Federal Practice & Procedure Sec. 3542 (1984).

And all of this error and fallacious reasoning is crammed into the first seven of fourteen total paragraphs . . .

posted by Curmudgeonly Clerk at 2:19 AM

 

Yet More Thanks:

Thanks to Will Baude of Crescat Sententia for the addition of my humble blog to his blogroll.

Mr. Baude, however, is not going to let it go to my head. He takes me to task for questioning the correlation between libertarian policy preferences and libertarian constitutional theory in a prior post of mine. He makes a valid point, but goes too far in characterizing this sort of argument as ad hominem. Ad hominem generally connotes a personal attack, or a character attack.

I do not question libertarians' character though. As I note in my post, we are all prone to see constitutional theory through our own political lens; the latter colors our view of the former. Although I noted this universal human failing in the particular context of discussing libertarian views of the Commerce Clause, I do not think it reflects on them alone or says anything about the character of libertarians.

As with all constitutional theorems, the views of libertarians ought to be assessed on their merits—a point that I made a couple of paragraphs later in the referenced post:

I am personally indisposed to psychoanalyze those with whom I disagree on any particular issue. I would rather examine the arguments on the merits and let the chips fall where they may. I note the impulse to assume the unconstitutionality of the drug war among libertarians only to point out that when our policy preferences and constitutional thinking intersect we must all be on guard to distinguish the former from the latter. All too often they tend to perfectly coincide—too perfectly.

I intended my remarks more as an admonition to libertarians (and everyone else!) to scrutinize their own motives and police their own predilections rather than as a condemnation or a suggestion that policing others' predilections might be useful.

posted by Curmudgeonly Clerk at 5:52 PM

 

Unpublished Opinions in the Fifth Circuit:
A Preview of Coming Attractions

How Appealing reports that the Fifth Circuit Court of Appeals will shortly make its unpublished opinions available via the court’s website. Currently, there are three ways to obtain the Fifth Circuit’s unpublished opinions: (1) by specific request via the Clerk’s Office (i.e., by requesting a particular case by name and number); (2) by requesting a copy from the Fifth Circuit Library; or (3) via online databases like Westlaw.

The first two ways of obtaining the appellate court’s unpublished opinions require payment of a fee. The Library only has those opinions released since 1974. Westlaw does have a separate database for unpublished Fifth Circuit opinions (“CTA5U”), but it is far from complete. Indeed, much of the CTA5U database appears to consist of (a) opinions that are slated for publication but have yet to be formally published in the Federal Reporter, and (b) table decisions that do not include the text of the actual opinion.

The Fifth Circuit’s decision to make its unpublished opinions more readily available is not necessarily voluntary. The E-Government Act of 2002 (Pub. L. 107-347, 116 Stat. 2899) requires all federal appellate courts to make their unpublished opinions available via their websites in the near future.

In the meantime, the Advisory Committee on Appellate Rules of the Judicial Conference of the United States has drafted a proposal that would allow the unfettered citation of so-called unpublished opinions. The draft rule apparently does nothing to alter the circuits’ various rules that render unpublished opinions non-precedential in character. For some, such half-measures may not be enough. See Williams v. Dallas Area Rapid Transit 256 F.3d 260, 260-63 (5th Cir. 2001) (Smith, J., joined by Jones, J., and DeMoss, J., dissenting from denial of rehearing en banc) (questioning constitutionality of Fifth Circuit’s no-citation rule), cert. denied, 534 U.S. 1042 (2001); Community Visual Communications, Inc. v. City of San Antonio, 148 F. Supp. 2d 764, 773-75 (W.D. Tex. 2000) (Biery, J.), (calling for reconsideration of same rule).

Setting aside the constitutionality and wisdom of rendering court opinions non-precedential, it is not clear what effect the conjunction of free availability and potential citability of unpublished opinions will have in the Fifth Circuit. At first blush, it seems as if the juxtaposition of the E-Government Act and the Advisory Committee’s proposed rule could be quite significant. In 2002, the Fifth Circuit released a total of 4,019 opinions, of which 3,401 (or approximately 85 percent) were unpublished.

On reflection, however, it is primarily the increased availability of unpublished opinions that is potentially consequential. This is because the Fifth Circuit’s present unpublished opinions rule does not really contain a strict no-citation component.

Fifth Circuit Rule 47.5 governs publication and citation of appellate opinions. Rule 47.5 divides unpublished opinions on the basis of the effective date of the rule. Pre-1996 unpublished opinions are, in fact, precedential. 5th Cir. R. 47.5.3. Strangely, however, the rule goes on to indicate that such opinions may not have “precedential value”—otherwise they would have been published—and therefore discourages, albeit does not forbid, citation thereto. See id. (stating that such opinions “should normally be cited only” in limited circumstances, such as to demonstrate res judicata). In contrast, post-1995 opinions are not precedent, except for purposes such as res judicata. 5th Cir. R. 47.5.4. Nonetheless, a post-1995 “unpublished opinion may . . . be persuasive” and “may be cited.” Id. In all submissions to the court of appeals featuring citations of unpublished opinions, copies of said opinions must be included with the filing. 5th Cir. R. 47.5.3-.4.

Thus, the unavailability of Fifth Circuit opinions is the real obstacle to citation at present. The Advisory Committee’s proposal would remove all doubt as to the citability of unpublished opinions in the circuit, but a good lawyer can already make the case that a any particular pre-1996 opinion falls outside the “normally” limitation and that any given post-1995 opinion is persuasive. Restricted access is the key restraint on citation within the Fifth Circuit.

Nonetheless, lawyers would doubtless be happier with a free citation rule of the sort that the Advisory Committee is proposing. On the other hand, if Circuit Judges have been correctly assessing the criteria for publication, see 5th Cir. R. 47.5.1, then this trove of unpublished opinions will not contain much treasure. Thus, in the end, the increased access to unpublished opinions could also potentially have little or no effect on Fifth Circuit practice. It would appear that only time will tell . . .

posted by Curmudgeonly Clerk at 11:27 PM

 

What Is Good For the Goose . . .

Glenn Reynolds and others have been grousing about the Rave Act ever since Sen. Biden (D.-DE) slipped this particularly misguided anti-drug measure into the law.

Well, now the chickens have come home to roost. Walter Olson has noticed this story in the Sacramento Bee that details a rave-related civil suit against the United States government that is premised on the very same sort of vicarious liability that the government would impose in the criminal context via the Rave Act in prosecuting the proprietors of rave venues.

Do take a gander at the stories linked above for yourself.

posted by Curmudgeonly Clerk at 3:28 PM

 

Nguyen v. United States:

How Appealing points to the majority opinion and dissent in Nguyen v. United States, 539 U.S. ___ (2003). The 5-4 decision with an atypical line-up (Stevens, O’Connor, Kennedy, Souter, and Thomas in the majority; Rehnquist, Scalia, Ginsburg, and Breyer dissenting) vacated a Ninth Circuit judgment because the three-judge appellate panel included an Article IV territorial judge.

The obvious constitutional question (i.e., whether a non-Article III judge may sit by designation on an Article III appellate panel) went unaddressed. The majority confined itself to holding that said designation contravenes the statutory jurisdictional provisions established by Congress:

[28 U.S.C.] Section 292(a) does not permit any assignment to service on the courts of appeals of a district judge who does not enjoy the protection set forth in Article III.

The dissenters agree with the majority’s statutory analysis, but would nevertheless affirm. Rehnquist et al. would hold that the defendants below had forfeited all but plain error review. Accordingly, though the improper appellate empanelment constitutes plain error, the dissenters would find it harmless and affirm, because

. . . there is no basis for concluding that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Having dispensed with the statutory claim, the dissenters would also address the constitutional issues. But they provide no view as to their merits. The dissenters would disregard entirely an argument premised on the Appointments Clause (Art. II, Sec. 2, cl. 2) that was neither raised below nor in the petition for certiorari. As with the statutory issue, they would hold that the petitioners had forfeited all but plain error review of the Article III issue as well.

The government offered three arguments as to why the Court should not adopt the position embraced by the majority. First, the United States appears to have argued that the defendants had entirely waived the issue, thereby precluding all possibility of relief in the Supreme Court. Second, the government made the forfeiture/plain error argument that the dissenters found persuasive. Third, the government argued that a quorum of two Article III judges in judgments that were unanimous was sufficient to satisfy any statutory and/or constitutional concerns.

In rejecting the government’s third argument, the majority makes two arguments. The majority acknowledges that a quorum of two is sufficient for appellate court judgments. However, it first cites three cases dating from 1893, 1913, and 1960 respectively for the proposition that the judgments of an improperly constituted court of appeals panel may be vacated notwithstanding a valid quorum. See United States v. Am.-Foreign S.S. Corp., 363 U.S. 685 (1960) (vacating judgment in which senior circuit judge took place in en banc consideration of case); William Cramp & Sons Ship & Engine Bldg. Co. v. Int’l Curtiss Marine Turbine Co., 228 U.S. 645 (1913) (involving statute that precludes district judges from sitting on appellate panels by designation in cases over which they presided at the trial court level); Am. Constr. Co. v. Jacksonville, T. & K. W.R. Co., 148 U.S. 372 (1893) (same). As the dissent correctly points out, these cases are readily distinguishable on multiple grounds (i.e., the first case did not involve a forfeiture of appellate rights, the second and third cases predate the advent of plain error doctrine, and the statutory commands violated in all three cases are substantially clearer than the one at issue in Nguyen).

Even the majority seems to acknowledge the tenuousness of applicability of the three foregoing cases by placing greater emphasis on its second argument. Justice Stevens writes that, notwithstanding the valid quorum, the statute concerning empanelment in appellate proceedings (28 U.S.C. Sec. 46(b)) requires the designation of three proper judges in the first instance. Or rather, Stevens writes:

It is “clear that the statute was not intended to preclude disposition by a panel of two judges in the event that one member of a three-judge panel to which the appeal is assigned becomes unable to participate,” but it is less clear whether the quorum statute offers postjudgment absolution for the participation of a judge who was not otherwise competent to be part of the panel under §292(a). Thus, although the two Article III judges who took part in the decision of petitioners’ appeals would have constituted a quorum if the original panel had been properly created, it is at least highly doubtful whether they had any authority to serve by themselves as a panel. In light of that doubt, it is appropriate to return these cases to the Ninth Circuit for fresh consideration of petitioners’ appeals by a properly constituted panel organized “comformably to the requirements of the statute” (internal citations omitted).

What I find “highly doubtful” is the majority’s dubious reasoning process in the preceding excerpt. Because of “doubt” as to whether the two-judge quorum is statutorily sufficient, the majority vacates two judgments that were unanimous and about which there is no real doubt. But if this particular concern really forms the basis for the Court’s vacatur, is it not obligated to consider and actually resolve the issue of whether a two-judge quorum absolves improper empanelment rather than espousing mere misgivings or conjectural uncertainty? The majority’s argument amounts to positing that there might be a statutory problem and on this basis concludes that the judgments below cannot stand. Q.E.D. this is not. The majority’s reasoning is more like “good enough for government work.”

posted by Curmudgeonly Clerk at 2:48 PM

 

Corporate Law Blog:

One of the things that I have begun to notice about blogging is that it is practically a part-time job. Just keeping track of all the other bloggers is quite a task. The up-side is that someone is blogging about practically everything of interest in the legal world these days.

Speaking of which, the Corp Law Blog, a site devoted to corporate securities, murders and executions has moved to the indicated URL.

And many thanks to the Corp Law Blog for linking to my humble site as well.

posted by Curmudgeonly Clerk at 11:40 AM

 

Many Thanks:

Thanks to SW Virginia Law Blog for the link.

Irrelevant Aside:

My only personal experience with Virginia was a summer that I spent in Colonial Heights (near Petersburg) when I was fourteen-ish. I cannot say that it was an altogether pleasant experience, but one can hardly hold an experience in Southeast Virginia against a Southwestern blogger.

posted by Curmudgeonly Clerk at 2:54 PM

 

Double Negatives in Legal Writing:

Howard Bashman points to this editorial in The Washington Post by Dusty Horwitt that chides lawyers for use of the double (and triple and even quadruple) negative in legal writing.

The use of the double negative is not regarded as standard in modern English by language authorities. See, e.g., Diana Hacker, A Pocket Style Manual 116 (1993) (“Standard English allows two negatives only if a positive meaning is intended: The runners were not unhappy with their performance. Double negatives used to emphasize negation are nonstandard: Jack doesn’t have to answer to anybody [not nobody]. Negative words that fall within the compass of this rule are “no, not, none, never, neither, nothing, nowhere, and nobody” and also includes the use of adverbs like “hardly or scarcely in conjunction with negatives.” Richard K. Corbin et al., Guide to Modern English 395-96 (1965).

But adherence to these rules is hardly universal. For example, the double negative enjoys wide usage in colloquial English in indicating negation. See The American Heritage Book of English: A Practical and Authoritative Guide to Contemporary English Double Negative Sec. 23 (1996) (“These famous examples of double negatives that reinforce (rather than nullify) a negative meaning show clearly that this construction is alive and well in spoken English.”). Such usage has a fairly distinguished pedigree, dating back to the Tenth Century; writers such as Chaucer and Shakespeare have put the double negative to good use in reinforcing a negative. Id. The rule against employing double negatives in this sense is of fairly recent historical vintage, developing in the Renaissance. Id.

Thus, I think that the use of the double negative in legal writing is most likely attributable to past usage. Lawyers are a precedent-bound class. We learn by example, and the more venerable the example the better. Or so the thinking goes. Consider, for example, the archaic English phrasing and usage that one often comes across in complaints and affidavits. Indeed, the decreased use of Latin maxims is a relatively recent trend in American legal writing.

Thus, the widespread use of the double negative in legal writing is not inexplicable. And occasionally it is even felicitous. But there is something to Horwitt’s criticism. Improper use or overuse of double negative detracts from clarity and clarity is the sine qua non of good legal writing. Pleadings, motions, or briefs that fail to convey are useless notwithstanding the merit of the claims they advance.

But it is also necessary to be mindful of what the rule regarding double negatives does not forbid. As the American Heritage Book of English notes, “[t]he ban on using double negatives to convey emphasis does not apply when the second negative appears in a separate phrase or clause, as in I will not surrender, not today, not ever or He does not seek money, no more than he seeks fame. Id. One often finds that armchair grammarians are overzealous in the application of the rules. While we are retiring precedents that no longer recommend themselves to legal writers, let’s not purge usages that do not actually fall within the scope of the rule.

posted by Curmudgeonly Clerk at 1:50 PM

 

Burkean Constitutionalism:

A reader writes in with some interesting observations contra my recent assertion that adherence to principles of stare decisis bolsters the legitimacy of the judiciary:

Keep in mind that stare decisis does not come without its own cost to the judiciary's legitimacy, among those who measure it's legitimacy by how closely it's rulings agree with the actual text they claim to be based on. A cost which can only rise as the accumulation of realist rulings causes that gap to become ever more glaring. One can, of course, debate how large a portion of the population falls into this category. I would only point out that Americans cherish their Constitution, (And we don't carry around copies of the court rulings in our breast pocket, we carry copies of the text!) and there must be SOME limit to how large that gap can get without serious consequences. If you don't think we've already got serious consequences . . .

* * *

. . . . I view the accumulation of realist rulings in the judiciary as being an entropic process, akin to aging. . . .

Although this view is not implausible, I think it is mistaken for a couple of reasons.

It seems to me that the “entropic process” criticized above is the very process that the Framers incorporated into our form of government. In insisting on an independent judiciary, see Federalist No. 78, the Framers purposely included the common law system within the framework of the new national government. That is, the “case or controversy” decision-making mechanic is built into the Constitution via Article III’s grant of “[t]he judicial Power.” Case-by-case constitutional adjudication is the essence of the federal judicial function. So the complaint cannot be with the act of interpretation itself, but rather how the Constitution has been interepreted.

I take it that my correspondent sees today’s jurisprudence as being far removed from what was intended by the Framers. I am not so sure. For one thing, discerning the intentions of the Framers is not an easy undertaking. Numerous obstacles exist. First, we must determine whose views are to be consulted. That is, which individuals played a central enough role in the drafting of the Constitution for their views to be relevant and material. Second, do the views of the men who merely ratified the Constitution at the state level count as well? Their acts did render the Constitution binding, after all. But adding this level of complexity to our task is daunting. For this reason, jurisprudes like Justice Scalia are skeptical regarding assertions about congressional intent. Attempting to assign central, dispositive reasons to a plethora of individuals is no easy task. Once we have decided the relevant pool from which to draw, how much weight are we to assign to any particular view or individual? For articulations of these views, see generally Boris I. Bittker, The Bicentennial of the Jurisprudence of Original Intent: The Recent Past, 77 Cal. L. Rev. 235, 250-51 (1089); 1 The Founders’ Constitution xi-xii (Philip B. Kurland & Ralph Lerner eds., 1987)

Bear in mind also that the debates at the Philadelphia Constitutional Convention were closed. Once the records of the convention were finally published in 1819 or thereafter, they were found to be “ambiguous, fragmentary, and contradictory.” Michael L. Wells & Edward J. Larson, Original Intent and Article III, 70 Tul. L. Rev. 75, 99 (1995). Moreover, a great deal of what we know of the Convention comes from an account by James Madison that was not released until 1840 and may have been altered over time to reflect his own changing views of the Constitution. Ronald D. Rotunda, Original Intent, the View of the Framers, and the Role of the Framers, 41 Vand. L. Rev. 507, 510 (1988); Daniel A. Farber, The Originalism Debate: A Guide For the Perplexed, 49 Ohio St. L.J. 1085, 1088 (1989).

In other words, determining what the Constitution originally meant is no small task. Consequently, demonstrating that we have drifted from its original moorings is quite an undertaking as well.

But a more important point needs to be made as well. Citizens can carry around a copy of the Constitution in the breast pocket of their coats because it merely establishes our federal government in outline, leaving the details to be filled in over time. We broke with our English heritage by embodying our Constitution in a written document. But the document is cursory and leaves substantial room for interpretation. I would suggest that, like the English Constitution, the American one is prescriptive in nature: current practice in conjunction with long usage comprises constitutionality so long as said usage does not flatly contradict the minimalist terms of the written document. Our Constitution has certain fixed principles but its details are “made by the peculiar circumstances, occasions, tempers, dispositions, and moral, civil, and social habitudes of the people, which disclose themselves only in a long space of time.” Edmund Burke, Speech Before the House of Commons (May 7, 1782).

The common law method of case-by-case adjudication lends itself to this evolutionary process. The American Constitution functions precisely because it is has evolved over time in response to real conditions and circumstances. Only when this evolution contravenes the express terms laid out in the Constitution can it be said to be unconstitutional. But because of the terseness of the document, the frequent ambiguity of its terms, and the indeterminacy of the Framer’s intentions, it will often be difficult to demonstrate the unconstitutionality of contemporary practices in any meaningful way.

posted by Curmudgeonly Clerk at 1:50 PM

 

Legal Ethics Blawg:

David Giacalone, a retired attorney and mediator, has recently started a much-needed blawg devoted to the topic of legal ethics.

posted by Curmudgeonly Clerk at 1:12 AM

 

Is Senate Rule XXII Utterly Without Merit?

I understand the political motivations of Senate Republicans who want to reform the filibuster. What I don’t understand is Timothy Noah’s concurrence.

Noah argues that Democrats ought to embrace a GOP proposal that would emasculate Senate Rule XXII. The Republican proposal would effectively turn it into a mere extended debate clause.

Noah’s argument strikes me as curious to say the least. He writes:

But in the latest volume of [Robert] Caro’s Johnson biography, Master of the Senate, the filibuster isn’t portrayed as sometimes good and sometimes bad. It is shown (accurately) to be unambiguously bad. He refers to it as the Senate’s “peculiar institution,” which of course is an allusion to slavery. He shows how it was repeatedly used to protect Jim Crow. He crafts a hero narrative around Senate Majority Leader Johnson’s dazzling triumph over various rococo Senate obstructions to pass the first civil rights bill in nearly a century. Surely Caro grasps that the larger lesson isn't the greatness of Lyndon Johnson. It’s that it shouldn't take somebody of unparalleled legislative genius to make the rusty machinery of the Senate do what the country demands.

How or why these incidents pertaining to one issue translate into a conclusion that the filibuster is always and unambiguously bad escapes me. One can certainly make the argument that these particular uses of the filibuster were inappropriate on the merits. That’s an argument that I am happy to concede.

But it is peculiar for someone sensitive to issues of race and civil rights to evince contempt for an antidemocratic institution in absolute terms rather than merely condemning its misuse. After all, what of the federal courts? They consistently thwarted “what the country demand[ed]” in matters of race. Brown v. Bd. of Educ. ring a bell?

It may be possible to cogently argue that this countermajoritarian role is the unique province of the judiciary and that the political branches (the legislature and executive) ought to obey democratic impulses. But Noah does not indicate any such belief. So what is Noah’s argument?

(Washington Post link above via How Appealing.)

UPDATE:

Erasmus over at Civic Dialogues has some pithy observations about the propriety of Rule 22 and the filibuster in the context of the Senate's historic (and formerly constitutional) role as a brake on the passions of the House. His take is well worth reading and can be viewed here.

posted by Curmudgeonly Clerk at 12:41 AM

 

Federalism and the Commerce Clause:

In response to a little exchange between myself and Timothy Sandefur, he goes where no Justice has gone before and declares that he just thinks the “substantially affects interstate commerce” standard adhered to by the majority in Lopez is bunk. See the original posts here and here.

Justice Thomas has indicated a willingness to reconsider the formulation of the standard applied in Commerce Clause cases. See United States v. Lopez, 514 U.S. 549, 602 (1995) (Thomas, J., concurring) (“At an appropriate juncture, I think we must modify our Commerce Clause jurisprudence. Today, it is easy enough to say that the Clause certainly does not empower Congress to ban gun possession within 1,000 feet of a school.”) I think that such reconsideration is ill advised. But this is a proposition about which reasonable people may disagree.

This is probably not a debate that Sandefur and I are capable of resolving in this forum. Blogs have their limits. This sort of complex issue is the stuff of amicus briefs and law review articles.

For the present, I am content with Sandefur’s acknowledgment that he would simply abandon the “substantially affects interstate commerce” standard. Those who believe that the federal drug war is unconstitutional usually just declare it to be contrary to the tenets of federalism without elaboration. Sandefur’s thoughtful posts actually admit that this is an argumentative claim (and go on to make the argument in outline form). Libertarians in particular tend to gloss over the debatable nature of this federalism argument.

Policy Preferences and the Constitution:

Sandefur correctly points out that one need not be a libertarian in order to think that the drug war runs afoul of our constitutionally ordained state-federal bifurcation of authority. However, it seems to me that it is more than a mere coincidence that there is a substantial union between those who oppose the drug war as a matter of policy and those who believe that the drug war is unconstitutional. We human beings are particularly susceptible to thinking that our policy preferences are constitutionally mandated. Consider, for example, the supporters of abortion rights, who are convinced that abortion is enshrined in the Constitution notwithstanding the Supreme Court’s inability to precisely locate that supposed right in any of its opinions upholding the procedure’s constitutional status.

Prigg may not establish libertarian outcomes in general, but the particular application to which Sandefur would put Prigg certainly produces a result that libertarians would applaud. It is presumably not sheer accident that leads Sandefur to cite to Roger Pilon of the libertarian Cato Institute a mere sentence after observing that Prigg is not necessarily libertarian in nature.

None of this invalidates Sandefur’s arguments. I am personally indisposed to psychoanalyze those with whom I disagree on any particular issue. I would rather examine the arguments on the merits and let the chips fall where they may. I note the impulse to assume the unconstitutionality of the drug war among libertarians only to point out that when our policy preferences and constitutional thinking intersect we must all be on guard to distinguish the former from the latter. All too often they tend to perfectly coincide—too perfectly.

The Seamless Web . . .

A reader who does not share my views of federalism and the drug war e-mailed me with the following reaction:

So, today’s “expansive” reading of the Commerce Clause has been precedent for 60 years; back in the 1930’s, how long had the opposite reading been precedent? And IT got overturned!

Honestly, I can't think of any other profession that's so fond of its “mistakes” that it elevates not fixing them to its highest good.

Interestingly enough, this observation coincides with a discussion of stare decisis begun yesterday and continued today over at the Legal Theory Blog, which I initially commented on here. I can understand my reader’s frustration with the application of stare decisis to precedents that were wrongly decided or that are perceived to have been wrongly decided. But stare decisis should not be mistaken for unthinking adherence to prior decisions.

The fact that a different understanding of the Commerce Clause may have prevailed longer than the present expansive reading does not gainsay the fact that at least six to seven decades have elapsed since the advent of the latter. One can make the argument that much of what has occurred since the New Deal is unconstitutional. See, e.g., Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994). However, were the Supreme Court to actually declare the administrative state unconstitutional or condemn the present Commerce Clause jurisprudence, our national government would simply cease to exist not only in its present incarnation but in any recognizable form. We’re not talking about a reinvention of government, we are talking about a constitutional revolution. When such consequences loom, the Supreme Court should refrain from reconsidering precedent, even mistaken precedent.

It should also be kept in mind that the balance of power established in the Constitution, both among the national government and the states and amongst the three branches of the federal government, was unexplored territory at the Founding and is crafted in outline only. As Justice Frankfurter noted in a different context:

The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by [Sec.] 1 of Art. II.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring).

The same can be said of Congress and its commerce power enumerated in Art. I, Sec. 8, Cl. 3. It is for this reason that, “[w]ithin the American legal system, arguments that deeply entrenched practices violate the Constitution seldom succeed.” Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 582 (2001). If the multiple intervening decades in which the Commerce Clause has enjoyed greater status do not constitute entrenchment sufficient to guarantee its general constitutionality, then one wonders what period of time might suffice.

Now one could argue that Frankfurter and Fallon are mistaken. But as a purely descriptive matter, our political and constitutional history seem to bear their contentions out. This reduces one to arguing that it should not be so. Perhaps, but such counterfactual premises seem more like wishful thinking than argument. The acceptance of traditional practices is deeply ingrained in human psychology. See John Chipman Gray, Judicial Precedents—A Short Study in Comparative Jurisprudence, 9 Harv. L. Rev. 27, 27 (1895) (“The weight attached to precedent in every department of life is closely connected with the force of habit, and has its root deep in human nature . . . .”).

Of course, some would go even further with reference to asserting the constitutionality of modern congressional enactments made pursuant to the Commerce Clause. See, e.g., William J. Brennan, Jr., Speech at Georgetown University (Oct. 12, 1985), in The Great Debate: Interpreting Our Written Constitution 17 (The Federalist Society 1986); William O. Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 737 (1949). But one does not need to endorse the theory of a Living Constitution in order to subscribe to an expansive reading of the Constitution. See Antonin Scalia, Common Law Courts in a Civil Law System, in A Matter of Interpretation 37-47 (1997).

Setting aside the constitutional issue, there are persuasive prudential reasons for adhering to long-standing precedents, even if one might regard them as wrongly decided. See Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 652-53 (1999) (enumerating “the policies of economy, stability, and legitimacy” as the prudential reasons for adherence to precedent that are recognized by the Court).

Stability in particular is a paramount value served by adherence to precedent. Imagine first a more personal example. Let us say that you have built your home in accordance with various local ordinances regarding zoning, appearance, etc. Assume that shortly after completion of the construction, the rules are radically changed. Now your house is badly out of compliance. All of the rules that you reasonably relied upon are no more. What now?

Judicial precedent works in a similar fashion. Society knows the rules and plans accordingly. Changing legal horses midstream has consequences. One can plan around a bad legal rule (i.e., a wrongly decided case). But one cannot plan at all in a system in which precedents are particularly vulnerable to the proclivities of the rotating cast that makes up the High Court. So unless there is a good reason, courts in general uphold precedents—even arguably wrongly decided ones. Although the case for adhering to precedents may be less compelling with regard to constitutional cases than in cases involving property rights, for example, a serious truncation of Congress’s commerce power would have significant consequences on political and, perhaps, economic stability.

The legitimacy of the third branch of government is also a paramount concern. The members of the Supreme Court are already regarded as self-anointed Platonic guardians and the Court itself as a super-legislature by all too many. It is not difficult to envision how overruling precedents whenever individual Justices thought them ill-considered would further contribute to these views. Therefore, the Court must be circumspect about relegating precedents to the dustbin of history. A return to the jurisprudence of the early, agrarian Republic has undeniable political overtones. A complete volte-face regarding Congress’s commerce power, or any similarly well established constitutional practice, would delegitimize the judiciary. As the courts lack both the power of the purse and the sword, their public esteem is critical to the fulfillment of their constitutional role. Judicial integrity should not be lightly jeopardized.

posted by Curmudgeonly Clerk at 10:26 PM

 

Federalism, Libertarianism, and the Drug War Revisited:

Timothy Sandefur cheers this decision in a federal case against a medical marihuana grower. As someone who sees federal drug sentencings on a routine basis, I would be very interested in perusing the relevant documents and/or any hearing transcripts. Whatever the supposed equity of the sentence, it sounds highly atypical. One wonders if the government will appeal.

As is his wont, Sandefur peppers his discussion with interesting historical details and early Supreme Court precedent. I genuinely admire his erudition and the wealth of knowledge that apparently lies at his fingertips. Nonetheless, I also think that Sandefur very much overstates his case on this occasion.

I have previously evinced some good-natured skepticism regarding libertarian claims about federalism and the drug war. See Federalism Is Not Libertarianism; Federalism and the Federal Drug War. I am equally cautious about Sandefur’s present arguments.

Relying on Justice Story’s opinion in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842), Sandefur writes:

So were California to pass a law prohibiting the arrest of pot-smokers, the application of Prigg would have to uphold such a law, because there is no constitutional authority to regulate drug use or possession.

Well, this is all well and fine—if one is comfortable returning to 1842 in terms of constitutional doctrine. Justice Thomas intimated such a possibility in his concurrence in United States v. Lopez, 514 U.S. 549 (1995), but ultimately rejected such a return to the jurisprudence of yesteryear. Although recognizing that the Court’s “case law has drifted far from the original understanding of the Commerce Clause,” id. at 584 (Thomas, J., concurring), Thomas went on to observe:

Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.

Lopez, 514 U.S. at 601 n.8 (Thomas, J., concurring).

To my knowledge, no other sitting Justice has indicated a desire to undertake such a breathtaking reconsideration. All this is to say that, as an historical matter Sandefur may be entirely correct; nonetheless, he must make do with today’s Commerce Clause. Prigg is now a mere historical curiosity, a precedent from another time and another constitutional order. To set forth other examples, it may be that early Supreme Court cases regarding the federal income tax or state sovereign immunity under the Eleventh Amendment were wrongly decided, but too much water has passed under the bridge at this juncture. Federal income tax dodgers go to jail, and so do folks who violate the federal drug laws.

I think that Sandefur also understates the reach of the pre-New Deal commerce power of the federal government when he states that:

Before the unreasonable construction of the commerce clause took over, the government actually had to amend the Constitution in order to prohibit alcohol.

I have previously discussed why there is some reason to regard Sandefur’s Eighteenth Amendment argument with some caution here. For starters, it appears that Congress effectively thwarted state regulation of interstate alcohol transport via what has become known as the Dormant Commerce Clause prior to the enactment of the Eighteenth Amendment. See, e.g., Rhodes v. Iowa, 170 U.S. 412 (1898); Vance v. W.A. Vandercook Co., 170 U.S. 438 (1898); Am. Express v. Iowa, 196 U.S. 133 (1905). Moreover, via the Webb-Kenyon Act of 1913, Congress disallowed interstate shipment of alcohol into “bone-dry” regions (i.e., areas that did not permit alcohol even for mere personal use). So Congress clearly exercised its ability to regulate alcohol via the Commerce Clause well before the enactment and ratification of the Eighteenth Amendment. What the Eighteenth Amendment was apparently designed to accomplish was to allow the federal government to regulate alcohol even in the absence of an interstate nexus. See generally W.J. Rorabaugh, Reexamining the Prohibition Amendment, 8 Yale J.L. & Human. 285 (1996) (reviewing Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920 (Univ. of N.C. Press 1995)).

Now my grasp of the history involved is meager, so I would not swear to the foregoing analysis. But what little I know counsels skepticism regarding libertarian invocations of federalism and the Eighteenth Amendment in the context of the federal drug war. Perhaps, one might successfully mount a defense to the federal drug laws on the grounds that a genuine nexus with interstate commerce is lacking, that the Controlled Substances Act, 21 U.S.C. Sec. 841 et seq., exceeds the compass of Congress’s Commerce Clause authority. I take it that this is the very direction in which Sandefur's argument is headed.

This apparently remains an open question as per the unanimous opinion of Justice Thomas in United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001). Thus far, however, there is nothing to indicate that the Act violates the federal government’s legitimate commerce power. Moreover, it would seem that Congress's foray into this field would have to satisfy no more than the "substantially affects" test. Lopez, 514 U.S. at 559. That's hardly a challenging standard.

posted by Curmudgeonly Clerk at 1:39 AM

 

Abortion and Moral Disquiet in Six Feet Under:

After Abortion links to this review in The Boston Globe of Six Feet Under’s season finale, which was broadcast this past Sunday. The review, penned by Matthew Gilbert, included this snippet:

Claire’s journey to heaven with her father was particularly awkward. It offered a poignant moment, as she sees her troubled former boyfriend, Gabe, finally at peace, but it also raised a gnawing question. Claire encounters her baby in heaven, supposedly the child she gave up a few weeks back in an abortion-clinic sequence that had horrific cattle-call overtones. By presenting Claire’s “choice” as a baby, was Ball trying to make a big statement about fetuses and the morality of abortion? Or was he showing Claire resolve her own guilt, as the ghost of Lisa agreed to care for the ghost of Claire’s boy? It was a distracting issue.

Ah yes, those darn distractions.

I am a regular viewer of Six Feet Under. The show is primarily successful for the same reason that traffic slows down in the vicinity of an accident even when the road is not obstructed: the morbid desire to gaze upon a horrible wreck. No one in his right mind identifies with characters like Brenda (or her even loopier brother, Billy); we gawk at them.

But not all of the show’s characters are as hopeless or reprobate. Nor is the series completely without art or substance. Its portrayal of abortion has been nuanced and thoughtful, which is why the “distracting” comment by Gilbert is so jarring.

Gilbert writes that the subplot is “distracting,” but his intendment seems to be more along the lines of “discomfiting.” And it is. Six Feet Under pulls no punches regarding abortion. There is an utter absence of religious preaching or overt politics. It simply portrays the procedure and its immediate aftermath with an understated clinical grimness. As Amy Welborn notes, the subplot, which stretches over the final two episodes of the third season, leaves viewers with an overall impression of “subtle, indifferent horror.”

Planned Parenthood has apparently bestowed an award on either the show or one its writers, which leads me to wonder whether anyone at Planned Parenthood is actually watching. Even the show’s writers were incredulous in this regard. One, Nancy Oliver, related that, “[w]hen we heard that we'd been given this award by Planned Parenthood, we thought it was a mistake.”

These last two episodes of the season are not the first ones to explore abortion either. Previously, there was an episode in which Nate Fisher was haunted by specters of several children that he had fathered by various girlfriends who never carried them to term, opting to abort instead. The scene was relentless and without mercy, as they serially placed the responsibility for their demise on his shoulders. If memory serves me correctly, I recall one pretty little girl stating that she would have been seven (or so) if he had not had her murdered.

The effect was flabbergasting. I was alternately electrified and dazed. It was startling to see abortion portrayed in such a fashion. In the entertainment industry, depictions of abortion are seldom this raw and disquieting. In this vignette, Six Feet Under offered no comfort and paid no lip-service to the rhetoric of choice. Instead it presented the consequences of choices made—without flinching and without qualification.

Later in the episode, Nate reconciles his present self with his disturbing past in a flippant manner that robs the prior scene of much of its force. But for a brief moment, the stark reality of abortion and the guilt and regret that follow in its wake were presented in an honest and compelling fashion. The last two episodes return to this troubling theme with Claire.

It is no wonder that Gilbert finds this return to the subject of abortion to be “distracting.” Recourse to Roe v. Wade is unavailing. The law cannot answer the questions that Six Feet Under is raising.

posted by Curmudgeonly Clerk at 12:00 AM

 

Strong Horizontal Stare Decisis:

Professor Solum has a characteristically thoughtful discussion of precedent in which he argues in favor of strong horizontal stare decisis in courts of last resort. That is, Solum argues that, ceteris paribus, supreme courts ought to abide by the decisions of their own institutional forebears. As Solum acknowledges, his argument is much more controversial than the proposition that lower courts ought to be constrained by the decisions of their respective courts of last resort (i.e., vertical stare decisis).

Even the most ardent proponents of precedent do not generally advocate so binding a rule of precedent as the one proposed by Solum. (Now Senior) Circuit Judge Arnold has written, in a different context, that:

Finally, lest we be misunderstood, we stress that we are not here creating some rigid doctrine of eternal adherence to precedents. Cases can be overruled. Sometimes they should be. On our Court, this function can be performed by the en banc Court, but not by a single panel. If the reasoning of a case is exposed as faulty, or if other exigent circumstances justify it, precedents can be changed. When this occurs, however, there is a burden of justification. The precedent from which we are departing should be stated, and our reasons for rejecting it should be made convincingly clear. In this way, the law grows and changes, but it does so incrementally, in response to the dictates of reason, and not because judges have simply changed their minds.

Anastasoff v. United States, 223 F.3d 898, 904-05 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000).

However, Judge Arnold’s articulation is not incompatible with Professor Solum’s thesis. Even the good professor disowns any “rigid adherence to precedent.” Solum does, however, add that he believes such overruling ought to be rare—much rarer than it is today (i.e., that the federal and state supreme courts ought to adhere to their own precedents a great deal more than they presently do).

At the level of theory, Professor Solum’s argument is not without appeal. But in application it promises to be very difficult.

How are courts of last resort to regard prior precedents that are themselves inconsistent with other of the court’s own precedents? For example, when confronted with a past that includes both Nat’l League of Cities v. Usery, 426 U.S. 833 (1976) and Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528 (1985), how does the Court decide whether it ought to overrule the latter? A simple last in time rule? That is, how does one implement Solum’s “strong precedent” in the face of an institutional past that does not feature such a concept?

Do supreme court judges have a duty to acquiesce in constitutional cases in which their considered legal opinion is that a prior court got it wrong? One might read the unconventional opinion authored by Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey, 505 U.S. 833 (1992) as a practical application of Solum’s “strong precedent.” However, one wonders why Justice Souter refuses to abandon his scholarly dissents in the state sovereign immunity cases if Casey stands for such a proposition. Solum cannot be faulted for various judges’ failures in applying his admittedly “radical” conception of precedent. But I think that Casey, does highlight a real problem with Solum’s theory in application. There is a real demarcation problem inherent to the notion of “strong precedent.”

As previously noted, even Professor Solum does not advocate rigid, eternal adherence to precedent. Nor could he. Such a claim would place him in the position of arguing that courts of last resort confronted with the equivalent of Plessy v. Ferguson, 163 U.S. 537 (1896), should summarily affirm Plessy rather than penning Brown v. Bd. of Educ., 347 U.S. 483 (1954). The result would be a judicial system in which significant constitutional change would be available solely via Article V’s amendment process. Constitutional change has, on occasion, proceeded in this manner. For example, Dred Scott v. Sandford, 60 U.S. 393 (1856) was overruled by adoption of the Thirteenth and Fourteenth Amendments. But Dred Scott hardly commends Article V as a mode of constitutional change, given what was necessary to achieve the aforesaid amendments.

So conceding that it is quite necessary for courts of last resort to be able to inter their most pernicious precedents, how does one decide which ones are pernicious enough to defeat considerations of “strong stare decisis”? What is the threshold, or line of demarcation? Some would, no doubt, view Roe v. Wade, 410 U.S. 113 (1973), as worthy of overruling—even if they generally bought into notions of “strong precedent.” Others might so view Bowers v. Hardwick, 478 U.S. 186 (1986). It seems that even if we all agree on a notion of “strong precedent,” it fails to resolve the legitimacy of contentious constitutional precedents. It may change the terminology of the debate, but Solum’s “strong precedent” does not seem capable of ending legal debate regarding Roe and Bowers.

But more importantly, it does not seem that Solum’s theory even defines a means of identifying the purported Roes of the legal universe and distinguishing them from cases that, however distasteful, do not warrant revisitation. Is Garcia sufficiently terrible? Chief Justice Rehnquist thinks so; or so he wrote in dissent. Does Professor Solum think so? How does he suggest that we arrive at an answer without having the same basic debate about the merits of Garcia that we are already having?

Professor Solum intends to follow up his argument tomorrow and has indicated that he will address some of the foregoing concerns. I am sure that it will be well worth reading too.

posted by Curmudgeonly Clerk at 2:48 PM

 

The Law of Linking:

An article in Monday's edition of the New York Times discusses a lawsuit steming from the posting of the allegedly sordid details of a romantic relationship on the Internet. (Link via Blogcritics.) Tucker Max apparently had nothing nice to say about Miss Vermont, which is not surprising given a brief perusal of the former's site. Among the provisions of an order entered by Judge Diana Lewis (Circuit Court of West Palm Beach) is what amounts to an injunction forbidding Max from linking to Miss Vermont's site. The Times quotes Professor Susan P. Crawford of the Cardozo School of Law at Yeshiva University as charcterizing the linking ban as "kooky":

"To block the ability to link," Professor Crawford said, "is in effect to say her site is her own private property."

Judge Lewis is not alone in her kookiness, however. Businesses like KPMG have effectively made such assertions in the past. And KPMG is not alone either.

Suits seeking to enjoin internet linking have succeeded in other contexts. See, e.g., Zyvex Corp. v. Starkewolfe, No. CIV.A. 302CV0190G, 2002 WL 1359719 (N.D. Tex. June 18, 2002) (unpublished opinion) (granting preliminary injunction that required defendant "to immediately remove all links of the Domain Names to any web site"); but cf. Futuredontics, Inc. v. Applied Anagramics, Inc., 152 F.3d 925 (9th Cir. 1998) (unpublished opinion) (affirming "denial of a preliminary injunction restraining Applied Anagramics, Inc.'s ('AAI') use of a framed link to Futuredontics' internet web site"); DVD Copy Control Ass'n v. Bunner, 113 Cal. Rptr. 2d 338, (Cal. Ct. App. 2001) (discussing trial court's refusal "to enjoin the defendants from linking to other web sites that contained protected information, because the links were indispensable to Internet access and a web-site owner could not be held responsible for the content of other web sites" in trade secret case), superceded, 41 P.3d 2 (Cal. 2002). However, given the First Amendment context of the Tucker Max case, the legal basis for Judge Lewis’s order is dubious at best. Any written decision that she might have issued does not seem to be available over the Internet. (Sounds like a job for The Smoking Gun.)

For the sake of the First Amendment, Judge Lewis’s order ought to be reconsidered. Nonetheless, Max is not a very sympathetic character. And there is no telling whether his now unavailable accounts of his relationship with the beauty queen are even remotely accurate. Max is no stranger to allegations of speech-related misconduct. See Barbara Goffman, Joke Was On Joker: DBA Bars Max From Election,The Duke Law Reporter, Mar. 8, 1999, at 2.

UPDATE:

Tech Law Advisor helpfully points out that, notwithstanding Judge Lewis's order, the story about Miss Vermont that began this sordid mess is still avaliable via Google's cache.

posted by Curmudgeonly Clerk at 10:24 AM

 

Proposed Constitutional Amendment:

In Mars Attacks!, the President of the United States (Jack Nicholson) goes before the American public shortly after extraterrestrial invaders wipe out Congress with the following message of hope: “I want the people to know that they still have two out of three branches of the government working for them, and that ain't bad.”

The blue-ribbon Continuity of Government Commission convened by the American Enterprise Institute and the Brookings Institution in the wake of the September 11th terrorist attacks begs to differ. According to this report by Albert Eisele in The Hill, the Commission is proposing an amendment to the Constitution in order to ensure that the House of Representatives may carry on in the event of a calamity that deprives the House of a substantial portion of its membership:

“Our current constitutional framework does not allow the House of Representatives to be reconstituted quickly after a large number of deaths,” the report by the Continuity of Government Commission concluded. . . . .

“In addition, neither the Senate nor the House is prepared for the possibility of large numbers of their members to be alive, but severely incapacitated and unable to perform their duties. Either of these scenarios could result in no Congress in the months after an attack, or one that is unrepresentative and of questionable legitimacy.”

* * *

The commission said a constitutional amendment is necessary because the Constitution provides only one method, a special election, for filling House vacancies and does not provide an effective way for filling temporary vacancies in the House and Senate that occur when members are incapacitated.

* * *

With most of Congress annihilated, Congress could not function in the absence of a quorum in either the House or Senate, as required by the Constitution.

* * *

The report also noted “the continuity of the Congress and the presidency are intertwined because the President Succession Act includes the Speaker of the House and the [Senate] President Pro Tempore directly after the president and vice president in the line of succession.”

The proposed solution is to authorize state governors to appoint temporary replacements a la the method for appointing interim senators under the Seventeenth Amendment.

The Commission also plans to issue similar reports regarding the executive and judicial branches.

posted by Curmudgeonly Clerk at 2:00 AM

 

Federalism, the Environment, and the Enactment of Treaties:

Professor Jon Reisman of the University of Maine at Machias notes a very interesting federalism problem over at Tech Central Station today. (Link via Instapundit.) The federalism issue that Reisman highlights is atypical in that it features several states trampling on the prerogatives of the federal government. To wit:

. . . . In August 2001 six New England governors signed an agreement with five eastern Canadian premiers to implement their own updated version of the Kyoto Protocol. . . .

The New England Governors/Eastern Canadian Premiers Climate Change Agreement (CCA) is clearly based on the Kyoto Protocol, with carbon dioxide reduction goals of 1990 levels by 2010, 10 percent below that by 2020, and eventually 80 to 90 percent reductions or more. The initial 2010 target requires a 17 percent reduction from current emissions levels.

The constitutional problem with this state-led environmental endeavor is fairly straightforward:

(1) Art. I, Sec. 10, Cl. 1 provides that “[n]o State shall enter into any Treaty, Alliance, or Confederation.”

(2) Art. I, Sec. 10, Cl. 3 further provides that “[n]o State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power.”

(3) Art. II, Sec. 2, Cl. 2 vests the power “to make Treaties” in the executive “by and with the Advice and Consent of the Senate.”

Even if Articles I and II were not so clear, one might infer from Art. VI that states are forbidden from such activities. Article VI provides that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” When juxtaposed with the multiplicity of state sovereignties that exist under the Union, this language might be construed as containing a Dormant Compact Clause as a necessary corollary—in much the same fashion that Art. I, Sec. 8, Cl. 3’s grant of the power “[t]o regulate Commerce with foreign Nations, and among the several States” forbids, by implication, the states from intruding in matters of interstate and international commerce even when there is no particular pertinent federal legislation.

Professor Reisman notes that neither the President nor the Congress have addressed the CCA. But both President Bush and the Senate are on record as being against the Kyoto Protocol, so there is little doubt as to how they would regard the CCA if stirred to action.

Apparently, political considerations have resulted in inaction thus far. It is understandable why the President might be inclined to duck this issue given the mixed public reaction to his decision to repudiate the Kyoto Protocol and the contentiousness of the President’s position on other environmental issues (e.g., ANWR). But the President also takes an oath to “preserve, protect, and defend the Constitution.” Art. II, Sec. 1, Cl. 8. Failure to quash these state-initiated treaties is an abdication of this responsibility.

For the time being, it appears that others will have to raise the issue in the courts.

Further Reading: Professor Reisman has written on this topic on other occasions. His other articles may be found here, here, here, and here.

posted by Curmudgeonly Clerk at 11:14 PM

 

Flirting with Fascism?

In my journeys across the blogosphere, I stumbled across this post at Nolo Consentire that gently mocks a strand of political thought that identifies itself as "National Greatness Conservatism." Italian fascism made rhetorical and ideological use of the phrase "national greatness" as well.

To the best of my knowledge, the phrase (and, perhaps, the idea of) "National Greatness Conservatism" originated with William Kristol of The Weekly Standard.

This coincidence of language is infelicitous, as it offers yet another opportunity for some to indulge their predilection to equate those right of the aisle with World War II's villains. But unless one can demonstrate that the tenets of “National Greatness Conservatism” actually coincide with those of fascism there is little to talk about here. I take it that William Kristol et al. are not preaching the supremacy of the state over the individual or advocating a centralized authoritarian state and state-controlled economy.

Nolo Consentire does not appear to be insinuating any such connection. Rather Nolo simply seems to be delighting in the unintended irony of the usage and, perhaps, the ignorance of those who denominate their brand of conservatism as consisting of a program of "National Greatness."

I am not certain that even this milder criticism is in order, however. The word "fascism" is derivative of the Latin word for "fasces": a bundle of wooden rods with an axe in the center, the blade of which projects out from the bundle. The fasces was originally a symbol of state authority in ancient Rome that was revived by Mussolini. In particular, the fasces was prominently displayed on Italy's flag during the Mussolini era. Notwithstanding this affiliation, during the Mussolini period the United States government continued to mint the Mercury Dime, which prominently featured a fasces on the reverse side. Production of the Mercury Dime continued unabated through the end of World War II. Likewise, the Seal of the United States Senate prominently features two fasces.

One might argue that these usages reference a symbol of ancient Rome rather than fascist Italy. And I think this rejoinder is not entirely without merit. But this response is problematic for two reasons. First, it is almost as odd that a democratic republic would choose to associate itself with the Roman Republic (or Empire) as with fascist Italy. Anyone familiar with the Roman Republic realizes that its contribution to modern democratic governance is hagiographical at best. See, e.g., H.H. Scullard, From the Gracchi to Nero: A History of Rome 133 B.C. to A.D. 68 5-9 (5th ed. 1982). Second, the same (mis)appropriation could be noted with reference to the swastika, which did not originate with the Third Reich. Yet the swastika has not been rehabilitated in any measure and is certainly not used by the federal government. The fact that the fasces is not as discredited as the swastika is doubtless attributable to the fact that the Nazis were far more pernicious than their Italian ideological cousins. But that is not saying much (i.e., being less pernicious than Nazi Germany is not much of an accomplishment). One might think that there would be some reluctance to employ a symbol that has enjoyed its most prominent modern usage in the service of an ally of Hitler’s Germany. Yet there is not.

posted by Curmudgeonly Clerk at 3:26 AM

 

Muchos Gracias:

Timothy Sandefur and the proprietor of "Crim Law" have added my humble site to their blogrolls. Many thanks to both for the link.

posted by Curmudgeonly Clerk at 11:17 PM

 

Proper Grammar and Usage:

Stanford linguist Geoffrey Nunberg, also of National Public Radio fame, has an interesting article on grammar and politics in today’s New York Times. (Link via How Appealing.) Although I am not sure that I agree with the politics of the article, there are many grammatical points made that ring true. For example:

. . . . Along the way, though, grammatical correctness itself is becoming a strangely arbitrary notion.

Take the rule about pronouns and possessives that Mr. Keegan cited in his challenge to the testing service. Unlike the hoary shibboleths about the split infinitive or beginning sentences with "but," this one is a relative newcomer, which seems to have surfaced in grammar books only in the 1960's. Wilson Follett endorsed it in his 1966 Modern American Usage, and it was then picked up by a number of other usage writers, including Jacques Barzun and John Simon.

The assumption behind the rule is that a pronoun has to be of the same part of speech as its antecedent. Since possessives are adjectives, the reasoning goes, they can't be followed by pronouns, even if the resulting sentence is perfectly clear.

If you accept that logic, you'll eschew sentences like "Napoleon's fame preceded him" (rewrite as "His fame preceded Napoleon"). In fact you'll have to take a red pencil to just about all of the great works of English literature, starting with Shakespeare and the King James Bible ("And Joseph's master took him, and put him into the prison"). The construction shows up in Dickens and Thackeray, not to mention H. W. Fowler's "Modern English Usage" and Strunk and White's "Elements of Style." ("The writer's colleagues . . . have greatly helped him in the preparation of his manuscript.") . . . .

The whole article is well worth reading. But it does have some weaknesses.

First, Because Nunberg discusses the subject in the context of politics, his discussion may inadvertently (and falsely) convey the impression that all attempts to enforce grammatical standards are political in nature. But this is surely not the case. While there may be some controversy as to what the applicable rules are, there are rules. There’s nothing political about insisting on subject/verb agreement for clarity’s sake, for example. Insisting on the exercise of proper grammar is not inevitably a matter of academic fastidiousness or an attempt to impose a particular political program. Anyone interested in effectively conveying ideas has to have some grasp of the rules of grammar and usage. In short, the problem isn’t rules enforcement, it is the attempt to authoritatively apply pseudo-rules that is problematic.

Second, Nunberg glosses over the debate between advocates of usage as opposed to authority (i.e., the question of whether the rules of English usage and grammar are pronounced by authorities or established by usage). Much of his article seems to presume that usage is the proper arbiter of correctness. I am not sure whether this view is right or wrong, but I am sure that it is debatable. Typically, when we want expert advice, we consult experts. In the fields of grammar and proper usage, the relevant experts would seem to be linguists and grammarians. (Indeed, I daresay that it was Nunberg’s credentials that earned him—rather than Joe Sixpack—space in The New York Times.) That is, when we want answers regarding grammar and proper usage, we do not consult plumbers or electricians. But proponents of the usage theory seem to posit that if enough plumbers and electricians (and others) employ the language in a fashion contrary to the rules elaborated by the experts, then the declared rules are not, in fact, the rules.

Taken to its logical extreme, this democratization of English grammar and usage threatens to render the language inchoate. If usage alone determines validity, then on what basis do we correct common grammatical mistakes? Indeed, under the usage theory is not the very conception of “common grammatical mistakes” an oxymoron? The usage theory also raises the question of what exactly we mean by denominating a word or expression as slang. Slang usages frequently enjoy common currency. But if usage determines propriety, then on what basis do we legitimately distinguish between slang and proper English? On the other hand, language is permeated by colloquialisms that defy the rules; nonetheless, such usage is frequently not only considered proper but quintessential. What is more English than the phrase “Say it ain’t so”? This is presumably why students of a second language learn not only the proper grammar of a language but its everyday use as well.

posted by Curmudgeonly Clerk at 2:15 PM

 

Don’t Know Much About History . . .

I made the mistake of allowing Jane Galt to sucker me into meandering over to Salon. I really cannot blame Ms. Galt though. I know better. Salon is and always has been an intellectual wasteland. But sometimes morbid curiosity compels me do the unthinkable . . . yet again.

Anne Lamott offers up this gem of geopolitical and religious history:

. . . . The White House actually seems to believe that it is fighting a Holy War. By the same token, so did Pope Urban II. He thought the first crusade would be a breeze, that his forces were noble and heroic and of God, and that they would rescue everyone. He did not think about the aftermath, what effect the ripples from his rock would have on the pond. For 90 years people thought he’d won, and then we got a thousand years of rage between Christians and Muslims, endless death and brutality in the name of sanctimony and obsession.

Lamott’s conclusions are all wrong, but it is little wonder. Her historical postulates are so breathtakingly ignorant that Lamott could only stumble upon an accurate conclusion by sheer accident.

Christians and Muslims did not come into conflict for the first time in the late Eleventh Century. The lands that the crusaders sought to wrest from the forces of Islam had originally been conquered by the Muslims: “[b]y the early eighth century the Christians had lost North Africa, Palestine and Syria and most of Spain to the Muslims.” Jonathan Riley-Smith, The Crusades: A Short History 1 (Yale Univ. Press 1987). Christian and Muslim fortunes along the frontier between Muslim-held lands and the Byzantine Empire in the Near East fluctuated somewhat over the intervening centuries, but by the time of Urban II Byzantium was in need of military assistance:

In the first week of March 1095 Pope Urban II presided over a church council at Piacenza in northern Italy. There was present an embassy sent by the Byzantine emperor Alexius to ask for help against the Turks, whose advance across Asia Minor had brought them within striking distance of Constantinople (Istanbul). This appeal set off the chain of events that led to the First Crusade . . . .

Id.; but cf. John Julius Norwich, Byzantium: The Decline and Fall 30-32 (Knopf 1995).

Riley-Smith’s history is concise and lively. He does write that Urban II’s decision to pursue the crusade was hardly spontaneous, that it was almost certainly premeditated and driven by a church reform movement led by the Pope, among other things. Riley-Smith, supra, at 2-6. But whatever the goals and motivations of Urban II’s crusade, it occurred within the context of a conflict that had already been underway for centuries. It was a point along a continuum, not an originating event like the Big Bang. Lamott’s theory of causation is all wrong. The truth is that Christianity and Islam were already at odds before the First Crusade and, if Alexius Comnenus’s request for assistance is any indication, would have remained in conflict even without Urban II’s military intervention.

Indeed, the origins of the conflict appear intertwined with the genesis of Islam itself:

Very soon after Muhammad’s death it had become clear that the new religion was possessed of an enormous political energy. Borne up by the idea of the jihad, the holy war, the Arabs forced their way east and west in a breathtaking expansion of power. (Whereas the Christian holy war was, in theory if not always in practice, a defensive undertaking, the jihad was right from the beginning a war of aggression.

Hans Eberhard Mayer, The Crusades 3 (2d ed., Oxford Univ. Press 1988).

The Muslim victories in North Africa, the Near East, and Spain in the 700s (mentioned above) were the culmination of this aggressive program of conquest. Id. Lamott attributes the concept of holy war exclusively to Urban II and his crusaders but neglects to take any notice of the Muslim tendency to holy war that predated the Christian crusades. Interestingly, there was not even a Latin word for “crusade” until the middle of the Thirteenth Century, “and even then it was seldom used.” Id. at 14; see also The First Crusade: The Chronicle of Fulcher of Chartres and Other Source Materials xvii (Edward Peters ed., Univ. of Penn. Press 1971). The corresponding English and German words were not coined until the Eighteenth Century—by historians. Mayer, supra, at 14. Even the Muslims themselves did not view the European incursions as being religiously motivated in the same sense that Muslims' conceived of their own military efforts:

Medieval Arabic, like medieval Latin, developed no word for “crusade.” The crusaders they called simply Franks (the First Crusade being predominantly French in character), and the crusader states were the Frankish territories in the Holy Land. That a religious war could serve any purpose other than that of spreading one’s own religion was incomprehensible to the Muslims, whose own idea of a holy war, Jihad, was entirely based on this conception. To the Seldjuks the crusade must have looked rather like another Byzantine military expedition, the kind of thing to which they were thoroughly accustomed.

Id. at 49; cf. Arab Historians of the Crusades 3-35 (Francesco Gabrielli & E.J. Costello trans., Univ. of Calif. Press 1969)

This, of course, does not negate the religious nature of the Christian expeditions into Muslim occupied lands, but it does highlight the vastly differing views of religious conflict held by Christians and Muslims. Rightly or not, Christians viewed the incursions of the First Crusade as falling within the just war doctrine elaborated by Saint Augustine: the justification being the recovery of the very lands lost to the Muslims during the Muslim period of rapid expansion in the previous centuries. See Mayer, supra, at 14-15.

Perhaps, one could draw some meaningful parallels between the Christian-Muslim conflicts of the Middle Ages and present circumstances. But first one would have to know something about the crusades. Lamott does not and it shows. Generally speaking, allusions to the crusades are like allusions to the Third Reich: they are an overheated rhetorical device devoid of actual content.

posted by Curmudgeonly Clerk at 1:52 AM

 

Are you kid.[ding]us?

Tech Law Advisor links to a story in the Washington Post that discusses the technological difficulties associated with the creation of a child-friendly internet domain (kids.us) that would ostensibly spare the little tykes from adult content. This is a serious problem for underage cybersurfers and their minders. One can often perform the most innocuous of internet searches and still come back with some jaw-dropping results. I recall that a friend of mine once performed a search for “bears” in order to help a young relative with a school report. The search produced some rather, ahem, hairy results.

Thus far, it is not clear that the kids.us domain has any hope of working though. One developer quoted in the Post story asserts that, even with the best technology available, “[t]here is no automated way to differentiate between a glazed doughnut and a suntanned breast.”

Of course, if recent lawsuits are any indication, some folks would probably just ban the doughnuts too.

posted by Curmudgeonly Clerk at 1:25 AM

 

Many Thanks:

I would like to extend my belated thanks to Bag and Baggage, How Appealing, and Tech Law Advisor for adding me to their blawgrolls. As a small remora navigating a very big sea, I appreciate the ride-along.

Thanks also to Inter Alia for the mention.

posted by Curmudgeonly Clerk at 11:53 PM

 

Bedeviled by Conscience:

Continuing a discussion on the role of conscience in judging that was sparked by a series of dissents issued by Judge Pregerson of the Ninth Circuit Court of Appeals, Timothy Sandefur assumes the role of Devil’s Advocate in defense of the notion that a judge might exercise his conscience in lieu of abiding by binding precedent from a higher appellate court. See the original posts here, here, here, and here; see also this post by Howard Bashman.

Although I think that there is broad agreement between Sandefur and myself on many of the relevant issues, he has rejected both of my attempts at reasoning by analogy. Instead, Sandefur wants to cut right to the heart of the matter:

But should we follow [The Curmudgeonly] Clerk beyond the statement “The three-strikes law eliminates any discretion; a certain result is mandated. The Supreme Court has upheld this legislative mandate”? That seems to beg the question; if “the judicial power of the United States,” as exercised by a federal judge, includes the application of “conscience,” then mandatory sentences would also be unconstitutional, since the legislature would have no legitimate authority to restrict the judicial power, for separation of powers reasons, so we’d have to say that the Court’s upholding of such mandates is unjustified. Indeed, the “judicial power of the United States,” of course, is vested separately from those “legislative powers herein granted.” So it is arguable that the legislature has no authority to deprive the courts of judicial power—although they may, of course, regulate the jurisdiction. (We’ll leave aside Article I vs. Article III differences for now.) So if the judicial power of the United States includes the exercise of discretion, then the legislature has no power to deprive courts of that discretion, and the cases upholding the mandatory sentencing guidelines were wrongly decided, so judges ought to refuse to follow those decisions, too.

In an impressive argument that deserves to be read in its entirety, Sandefur then bolsters the foregoing with extensive discussion of Federalist No. 78. Previously, I had argued that it would be perverse to maintain that federal judges qua federal judges may be guided by their consciences rather than binding precedent on the very basis of the unique status that they enjoy under Article III. But Sandefur cleverly clarifies that this is the issue under consideration: the constitutional status of conscience. Although my analogies may be salient regarding the requisites of hierarchical institutions, they fail to directly confront the constitutional issue raised by Sandefur.

At bottom Sandefur’s argument comes down to the nature and meaning of “[t]he judicial Power,” which the Constitution vests in the federal courts. U.S. Const. art. III, sec. 1. Sandefur, in his capacity as Devil’s Advocate, argues that “conscience” is constitutionally ensconced in this provision.

I find this argument to be highly problematic. For starters, I am reluctant to freight these three nondescript words of Article III with so much constitutional meaning. But I must acknowledge that the phrase “[t]he judicial Power” is not mere surplusage. The Supreme Court has determined otherwise:

I agree with the Court that Article III courts, as an independent and coequal Branch of Government, derive from the Constitution itself, once they have been created and their jurisdiction established, the authority to do what courts have traditionally done in order to accomplish their assigned tasks. Some elements of that inherent authority are so essential to "[t]he judicial Power," U.S. Const., Art. III, § 1, that they are indefeasible, among which is a court's ability to enter orders protecting the integrity of its proceedings.

“Certain implied powers must necessarily result to our Courts of justice from the nature of their institution . . . . To fine for contempt—imprison for contumacy—inforce the observance of order, & c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute . . . .” United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812).

Chambers v. NASCO, Inc., 501 U.S. 32, 58 (1991) (Scalia, J., dissenting).

But conceding that the phrase “[t]he judicial Power” imbues the judiciary with certain inherent powers without which they could not function merely raises the question of whether “conscience” as Judge Pregerson conceives of it is essential to the functioning of the judiciary.

First, for the reasons that I have previously articulated, it seems to me that the exercise of Pregerson’s conscience would in fact deprive the judiciary of its ability to fulfill its assigned tasks. As Sandefur notes, “[t]he judicial Power” is “vested in one supreme Court” and in whatever “inferior Courts” that Congress might establish. Presumably, the words “supreme” and “inferior” also have some significance. Indeed, the meaning of these terms, unlike “[t]he judicial Power,” is rather straightforward. Article III and the statutes enacted in furtherance thereof contemplate a hierarchical judiciary. Judge Pregerson’s precedent-defying “conscience” would turn this structure on its head. It stands to reason then that such “conscience” is not entailed by “[t]he judicial Power.”

Second, this is not the only time in recent memory that someone has argued that “[t]he judicial Power” is pregnant with significance. In Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc), Judge Richard S. Arnold declared his Circuit’s unpublished opinions rule unconstitutional on the basis that it conferred upon the Court of Appeals a power that goes beyond “[t]he judicial Power” vested in the judiciary by Article III. Whatever one thinks of the unpublished opinions debate in general, Judge Arnold’s analysis has been subjected to substantial, well-reasoned criticism. See, e.g., Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001); Christian F. Southwick, Note, Unprecedented: The Eighth Circuit Repaves Antiquas Vias with a New Constitutional Doctrine, 21 Rev. Litig. 191 (2002).

For present purposes, a couple of brief observations will suffice. It is not a minor undertaking to demonstrate that an attribute is so essential to the exercise of judicial power that the Founders must have grafted it into Article III. We are talking about engaging in an historical inquiry of great magnitude regarding a portion of the Constitution for which the historical record is incomplete. This is no small point. As with Judge Arnold, it is all too easy to succumb to the temptation of believing that one’s particular conception of the judiciary must be constitutionally required by Article III. Serious research is the only effective safeguard against such projection.

Sandefur cannot be faulted for failing to engage in such research. He advanced his intriguing argument by way of thumbnail sketch, not via a law review article. But those who would do more than play Devil’s Advocate on behalf of Judge Pregerson have their work cut out for them. The contention that “[t]he judicial Power” is imbued with an attribute that empowers inferior courts to disobey the “one supreme Court” is counterintuitive to say the least.

posted by Curmudgeonly Clerk at 11:04 PM

 

Conscience Versus Discretion:

Ironically enough, Timothy Sandefur dissents, in part, from my analysis of Judge Pregerson’s recent dissents. Mr. Sandefur writes:

I am not willing to entirely endorse the view that “[a] judge’s conscience does not enjoy constitutional status.” Judges are chosen for their conscience as well as for their other qualities, and a judge’s conscience has as much constitutional status as his knowledge of the law, or his research skills. Also, I find the clerk analogy weak, since a clerk is not supposed to exercise judgment; his is a ministerial task, as it were, so it really begs the question, since what we’re asking is whether the role of judgment in the constitutional scheme includes the judge’s application of conscience. But I do agree that in every case that I can think of, the better, as well as more effective, solution to the problem is for the judge to explain why he thinks that the precedent is wrong, but follow it nevertheless. It helps to solve the problem, rather than just pouting.

First, I am not certain that I understand what Sandefur intends when he argues that a judge may properly exercise his conscience, but my surmise is that he is not using “conscience” in the same sense that Judge Pregerson would. I would be interested to see an example, but in the absence of one, what I think Sandefur has in mind is the exercise of discretion, which is entirely proper in many circumstances. The actual legal standard of review of a district judge’s decision is often what is termed “abuse of discretion” (i.e., so long as the district judge exercised his or her discretion and was not capricious or arbitrary, the judge’s ruling will be affirmed). Rulings regarding venue-related motions to transfer are generally within the sound discretion of the district court, for example.

Discretion also plays a role in sentencing as well. Under the United States Sentencing Guidelines, that discretion has been greatly restrained, but it still exists. For example, federal district judges must often choose a point along a defined sentencing continuum; such decisions are discretionary in nature. Likewise, federal judges must often weigh the propriety of requests to upwardly or downwardly depart from a fixed sentencing range. Judges might be characterized as exercising their conscience under such circumstances. But such a characterization is colloquial. What is actually going on here is the exercise of discretion. In the foregoing examples, judges do not exercise their conscience in the same manner that Judge Pregerson advocates.

Indeed, in the cases in which Judge Pregerson exercised his conscience, he did so because the law allowed him no discretion in sentencing. The three-strikes law eliminates any discretion; a certain result is mandated. The Supreme Court has upheld this legislative mandate. Pregerson disagrees both with Congress and the Court, insisting that he ought to be able to exercise discretion even where the law disallows it. This is, I think the distinction between Pregerson’s conscience and the legally valid exercise of judicial discretion. The former is entirely extra-legal and extra-constitutional in nature (i.e., outside of the existing legal and constitutional order).

Second, I understand Sandefur’s reticence to embrace the clerk analogy. It may be perceived as overly self-important inasmuch as it might equate the constitutional duties of law clerks and their employers. This is not my intent. The former research and recommend while the latter announce and order. Judges are vastly more experienced and knowledgeable than their hired subordinates and the judges alone possess the discretion discussed above. At most, clerks merely assist their judges in the sound exercise of that discretion.

Nonetheless, I do not believe that the foregoing renders the clerk analogy as weak as Sandefur suggests. Both clerks and judges swear oaths to uphold the Constitution. It would be highly odd to suggest that the very fact of a federal judge's unique Article III status permits him to disregard Article III's requirments whenever his conscience intercedes. Moreover, the administration of an oath for purely ministerial acts strikes me as being somewhat curious. However, short in the tooth the average law clerk may be, clerks are selected in part for their judgment as well. They are not mere secretaries who apply self-evident precedents. Indeed, some have argued that the influence of clerks is to be distrusted and feared. See, e.g., William H. Rehnquist, Who Writes Decisions of the Supreme Court?, U.S. News & World Report, Dec. 13, 1957, at 74-75.

Whatever the merits of the clerk analogy, however, it is not hard to imagine others. Take for example the chain of command established in the Commander in Chief Clause. U.S. Consti. art. II, sec. 2, cl. 1. All military leaders are thereby subordinated to civilian leadership. As the President does, so military officers also take an oath to support and defend the Constitution. But officers’ conscience’s are constrained by the lawful orders of the President and officers may not follow their own inclinations when their consciences lead them to contrary constitutional conclusions. Nonetheless, the consciences of military officers have occasionally induced insubordination (e.g., Gen. George Patton, Gen. Douglas MacArthur). When officers are insubordinate, they are cashiered.

This comparison is not precisely analogous. Analogies are seldom exact. The Commander in Chief comparison does, however, capture important aspects of the constitutional crisis that Judge Pregerson’s insubordination presages if allowed to proceed unchecked. Both feature constitutionally imposed horizontal structures (i.e., civilian leaders over military ones, superior courts over inferior ones), and both would cease to function as contemplated if subordinates failed to heed the lawful decisions of their superiors.

Although the President may accord military leaders a great deal of discretion in a particular operation (e.g., the recent war in Iraq, in which the President is said to have vested operational decision-making authority in his military commanders), they are not free to disregard the direct orders of the President when their consciences cry out. Nor can military leaders simply choose to not participate in campaigns that do not offend their sensibilities. They must prosecute World War II and Vietnam alike, a defensive struggle against Japan and a preemptive attack on Iraq. If they cannot bring themselves to do so, then they must resign. That is the order that our Constitution ordains. If they will not resign, then they must be cashiered; they must give way rather than the Constitution. So it is with judges as well.

posted by Curmudgeonly Clerk at 11:40 PM

 

Federalism and the Federal Drug War:

I have evinced skepticism about so-called federalist critiques of the federal government’s conduct in the drug war. My doubts notwithstanding, this is clearly an idea that is widely held among libertarian thinkers. Consider, for example, this excerpt from an article by Radley Balko:

The problem with Attorney General Ashcroft—and the reason I write about him today—is that his record as Attorney General thus far has shown him to be a man completely unsympathetic to the tenets of federalism when they happen conflict with his own, personal values.

* * *

Ashcroft’s questionable allegiance to federalism has become glaring when it comes to the drug war. Despite the clear intent of voters in several states to allow the use of marijuana for medicinal purposes, the Attorney General has asserted the transcendence of federal law time and again, going so far as to send federal agents into convalescent centers with assault weapons and, in some cases, handcuff terminally ill patients to their beds.

In another particularly galling example, Ashcroft’s Justice Department convicted marijuana activist Ed Rosenthal in federal court for growing large stashes of marijuana. Problem is, Rosenthal wasn’t just growing the plants for medicinal use (legal under California state law), he was growing them for the city of Oakland. DOJ prosecutors persisted, and not only was Rosenthal convicted under federal law, the jury that convicted him was never told that he was actually working for the city. When told after the trial, the jurors who convicted Rosenthal called a press conference to express their outrage at having been misled.

Ashcroft’s supporters counter that as Attorney General, his job is to uphold and enforce the federal code—whether or not he agrees with a particular law isn’t important. But that’s a bit naïve. Like any other cabinet head, the Attorney General works with a budget, with limited resources. He hasn’t nearly enough capital or prosecutors to go after every infraction of the federal criminal code (which, thanks in no small part to allegedly federalist-minded Republicans, is expanding exponentially). Consequently, Attorney General Ashcroft actually makes policy when he chooses which federal laws he’s going to actively enforce, and to what extent.

(Link via Instapundit.)

Once again though, the article simply assumes that federal refusal to allow states to contravene federal drug laws violates the tenets of federalism. It is as if any federal resistance to state-made policies is considered beyond the pale not just on account of the supposed wrongheadedness of the federal government’s position but also because it somehow violates the proper division of authority amongst the states and the national government.

It is difficult to take issue with such unstated assumptions precisely because they remain unarticulated. Does Balko employ the term “federalism” in a purely political sense? Or does he intend his invocation of “federalism” as a serious constitutional argument?

I assume that, like Professor Jonathan H. Adler, Balko must intend the latter usage. If so, I would like to see proponents of this position make the constitutional argument in detail. Until proponents do so, the so-called federalist case against the federal drug war seems more like libertarian disappointment with the drug war on the merits.

Perhaps, this federalist argument has been made and I am simply ignorant of its existence. If so, I heartily encourage readers to e-mail me.

In this vein, a reader has written to suggest that the very existence of the Eighteenth Amendment is evidence that federalism concerns are implicated by the federal drug war. This is an intriguing line of argument. The Eighteenth Amendment (1919), of course, ushered in Prohibition.

At the outset, I must confess that, like most things I discuss on this site, I am far from being an expert on this subject. I suspect that this now-defunct amendment probably has few experts. What little I do know indicates that the Eighteenth Amendment cannot support the so-called federalist case.

The only thing that I have read on this topic is a single, rather brief book review. See W.J. Rorabaugh, Reexamining the Prohibition Amendment, 8 Yale J.L. & Human. 285 (1996) (reviewing Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920 (Univ. of N.C. Press 1995)). Rorabaugh’s review makes it clear that federalism acted as a break on the ambitions of the teetotalers. Indeed, the Amendment’s dispensation of concurrent enforcement power to both the states and the federal government seems to have been designed to allay federalist concerns.

But the review also notes that the Commerce Clause began to come into its own during the Progressive Era that led up to Prohibition. Likewise, even in the absence of the concurrent enforcement power provision, it is not clear that the Amendment represented a federal takeover, as eighteen states already had stricter “bone-dry” prohibition laws prior to the enactment of the Eighteenth Amendment. Moreover, in the period before Prohibition, the federal government had effectively thwarted enforcement of state prohibition laws in order to facilitate federal taxation of alcohol. So it is not clear that the national government had an interest in exerting power over the states in this matter, so much as national politicians succumbed to a populist campaign that favored Prohibition.

In the run up to the enactment and ratification of the Eighteenth Amendment, Supreme Court decisions were issued that denied the states the right to regulate or forbid alcohol in interstate commerce, presumably on the basis of the so-called Dormant Commerce Clause. See, e.g., Rhodes v. Iowa, 170 U.S. 412 (1898); Vance v. W.A. Vandercook Co., 170 U.S. 438 (1898); Am. Express v. Iowa, 196 U.S. 133 (1905). Conversely, the passage of the Webb-Kenyon Act in 1913, which disallowed interstate shipment of alcohol into dry areas that forbade even personal use of alcohol (i..e., “bone-dry” areas), clearly evinced Congress’s judgment that it had the power to regulate alcohol sales via the Commerce Clause in the absence of a constitutional amendment.

Thus the Eighteenth Amendment was apparently not considered necessary in order for the federal government to regulate alcohol sales. Proponents of prohibition presumably sought a constitutional amendment in order to achieve what the federal government could not via the Commerce Clause: a blanket prohibition of “the manufacture, sale, or transportation of intoxicating liquors within . . . the United States” even in the absence of a nexus with interstate commerce. Accordingly, it does not seem, on an admittedly brief analysis, that the Eighteenth Amendment’s existence evidences a federalism issue in the current federal drug war.

What then is the basis for this claim that the federal drug war runs counter to the tenets of federalism?

posted by Curmudgeonly Clerk at 9:06 PM

 

Disagreeable Precedents & The Rule of Law:

There has been some interesting discussion by Timothy Sandefur and Howard Bashman about some recent decisions handed down by the Ninth Circuit Court of Appeals. See the original posts here, here, here, and here.

Rico v. Terhune, No. 01-56692, 2003 WL 21186323 (9th Cir. May 19, 2003) (unpublished opinion) is typical of the opinions under discussion. The complete text of the Rico opinion reads as follows:

MEMORANDUM[FN*]

FN* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

California state prisoner Jeffrey Rico appeals the district court's order denying his 28 U.S.C. § 2254 habeas corpus petition challenging his sentence under California's three-strikes law for petty theft with a prior in violation of California Penal Code § 666. Rico's contention that his 25- years-to-life sentence is grossly disproportionate in violation of the Eighth Amendment is foreclosed by Lockyer v. Andrade, 123 S.Ct. 1166, 1172-75 (2003) (holding that state court's affirmance of two consecutive 25-years-to- life sentences for petty theft was not contrary to or an unreasonable application of federal law), and Ewing v. California, 123 S.Ct. 1179, 1185- 90 (2003) (holding that 25-years-to-life sentence under the California three- strikes law did not violate the Eighth Amendment's prohibition on cruel and unusual punishment). The district court therefore properly denied Rico's petition. Andrade, 123 S.Ct. at 1175.
AFFIRMED.

REINHARDT, Circuit Judge, specially concurring.

REINHARDT, Circuit Judge.
I concur only under compulsion of the Supreme Court decision in Andrade. I believe the sentence is both unconscionable and unconstitutional.

PREGERSON, Circuit Judge, writing separately, dissenting in part.

PREGERSON, Circuit Judge.
In good conscience, I can't vote to go along with the sentence imposed in this case.

See also Wallace v. Castro, No. 00-16993, 2003 WL 21186336 (9th Cir. May 19, 2003) (unpublished opinion); Turner v. Candelaria, No. 00-15606, 2003 WL 21186338 (9th Cir. May 19, 2003) (unpublished opinion). Note: Bashman advises that many other memorandum decisions of this nature have been issued by the same panel.

The panel in each case was made up of Judges Pregerson, Reinhardt, and Graber. The first two were appointed by President Carter and the last was appointed by President Clinton.

It is clear that Judge Reinhardt is following precedent, albeit stating his discontent with the state of the precedent in question. It is not clear exactly what Judge Pregerson is doing. Pregerson purports to be dissenting in part, but as Sandefur observes, “[i]t’s unclear . . . which part he isn’t dissenting in.” Hence, it would seem that Pregerson is simply dissenting altogether, notwithstanding his dissents’ “in part” qualifier.

Such an interpretation is certainly in keeping with Pregerson’s biography. Sandefur provides the following background:

. . . . When President Carter appointed Judge Pregerson to the bench, [he] was asked whether he would follow his conscience or the law, if the two came into conflict. He replied, “I would follow my conscience.” (See John Johnson, Judge Harry Pregerson, Choosing between Law And His Conscience, Los Angeles Times, May 3, 1992 at B5.) Sure enough, in 1992, when California tried to execute Robert Alton Harris, Pregerson issued a stay of execution—the fourth such stay entered that night. The Supreme Court finally had enough of Pregerson, and specifically ordered that “no further stays of Robert Alton Harris’ execution shall be entered by the federal courts except upon order of this Court.” Vasquez v. Harris, 503 U.S. 1000 (1992). This was quite unprecedented. (See further Charles Fried, Impudence, 1992 Sup. Ct. Rev. 155, 188-92).

This raises the question of whether a judge on an inferior court can ever decide a case on the basis of his conscience in direct variance with precedent from a higher court. Sandefur seems conflicted regarding the propriety of Judge Pregerson’s refusing to apply binding precedent on the basis of one’s conscience. Bashman raised the issue but has refrained from announcing an opinion on the matter.

As a preliminary matter, it is interesting that this act of insubordination is being conveyed in opinions that are non-precedential and non-citable in general. It is almost as if the panel is saying that it will not uphold the frowned-upon precedent on the record. The panel is generally depriving future litigants and future panels from recognizing the judicial act that Judge Reinhardt finds unconstitutional and that Judge Pregerson finds unconscionable. Of course, this may be reading too much into the matter, as the determination to render these decisions via “unpublished” opinions was unanimous in each of the cases. Rico, Wallace, and Turner are routine applications of precedent, and any future panel that considers the issue is duty bound to reach the same result—unless it follows in Judge Pregerson’s footsteps. Nonetheless, these cases do not feature the application of precedent in a routine fashion, and there is something discomfiting about such decisions being rendered “unpublished.” (And I am a proponent of the unpublished opinion regime overall.)

Setting the foregoing issue aside, I do not believe that there is any ambiguity about what is required of judges when their conscience counsels other than adherence to obviously binding precedent: they must disregard their personal preferences or contrary interpretations and hew to precedent. If we are a nation of laws and not of men, then inferior tribunals must obey superior ones. Contrary practices are foreign to the rule of law. This is not to say that judges must do so with a glad heart. Judge Reinhardt’s special concurrences are hardly unique. Many judges have enforced precedent all the while noting that they might decide otherwise if writing on a blank slate. Indeed, there are opinions by lower courts that openly call upon superior ones to overrule precedent but abiding by the precedent in question nonetheless. In such ways, inferior courts may call upon higher ones to abrogate unjust and ill-conceived decisions.

But Judge Pregerson’s dissents are beyond the bounds of acceptable judicial conduct. A judge’s conscience does not enjoy constitutional status. Instead, judges take an oath to uphold the Constitution of the United States. This oath entails adherence to the decisions of our Supreme Court. A judiciary in which individual judges are free to do otherwise is not an organized, multi-tiered institution so much as a conglomerate of co-equal jurists who may do as they please whenever they are of a mind to do so. Taken to its logical end, horizontal precedent would cease to have meaning.

I also take it as a given that the exercise of judicial conscience would always conveniently coincide with one’s own policy preferences. That is, I doubt very much that a judge who was not personally opposed to the precedent that Judge Pregerson refuses to adhere to would find it unconscionable to do so. If there is a test that can be devised that distinguishes the exercise of judicial conscience, as Judge Pregerson conceives of it, from the naked refusal to apply precedents at odds with one’s preferred policies, then I do not readily grasp it.

Moreover, I do not believe that selective recusal is an option for the judge of “conscience,” because the unwillingness to enforce and uphold disagreeable precedents is indicative of a temperament unfit to hold judicial office. That is, if a judge cannot be trusted to apply any one precedent dispassionately, then how can that same judge be relied upon to do so in other cases, or to even recognize when his own predilections are subverting his willingness to abide by binding precedent?

Hypothetical: A Clerk of Conscience
Consider the following example of what I have in mind. As a federal law clerk, I was required at the beginning of my term of service to take an oath to uphold the Constitution of the United States. (I was also specifically asked during one or more of my interviews with federal judges what course I would advise in the face of a binding precedent that I personally found repugnant.)

Now let us say that I am assigned to research issues in a complex case for the District Court. Assume also that the case could theoretically go any number of ways, and that the parties’ submissions to the Court fail to resolve the issue. Further suppose that after a great deal of research I correctly determine that the case has but one resolution based on binding precedent, the application of which is indisputable on reflection yet less than obvious without a great deal of analysis and research. However, said resolution turns out to be at odds with what I consider to be right on a personal level. That is, my conscience bridles at the result that binding precedent requires. Faced with this situation, what may I do? What are my options?

I believe that there is only one option. Whatever one’s personal inclinations, is there any doubt that a clerk in this situation must honestly advise the judge of the law and analysis that is contrary to the former’s desires? Moreover, would any judge hire a clerk who was incapable of doing so, who had to beg off of any case that promises to involve personally disagreeable precedents? I take it as a given that no inferior federal court judge expects or wants a clerk who will routinely advise the latter to disregard binding precedent as well. A clerk who cannot honestly confront disagreeable precedents is acting as an advocate rather than a researcher and advisor. There may be many roles for which such a person is suited, but law clerk is not among them. The hypothetical “clerk of conscience” simply lacks the temperament to be a law clerk.

The same is true of judges. The only real distinction between the hypothetical clerk above and a federal judge is that the latter has undergone nomination and confirmation. But it would be perverse to argue that a judge's Article III status imparted the discretion to disregard constitutional decisions that others must obey. The hypothetical clerk and the federal judge swear an oath to uphold the very same Constitution.

We, the people, have a right to expect our judges to enforce obviously binding precedent. Judges who cannot do so—even when they have the option of publicly disagreeing with the very decisions that they enforce—do not belong on the bench. Presidents should not nominate them. The Senate should not confirm them. If this particular dispositional malady develops after nomination and confirmation, the judge in question should resign. Barring resignation, such judges should be impeached.

posted by Curmudgeonly Clerk at 1:39 AM

 

“Ya” Is Not A Backward “R”:

The History Channel is running a show entitled Russia: Land of the Tsars. Despite using the spelling “tsar” in lieu of “czar,” which might suggest a certain knowledge of the original Russian spelling and pronunciation, The History Channel insists on using the Russian letter “Ya” as an English “r.” Although the letter "ya" in Cyrillic resembles a backward capital English "R," the Russian equivalent of “r” actually looks like the English letter "p." It is disappointing to see The History Channel make this kind of amateurish mistake.

Note: I would add the relevant Cyrillic characters and the Russian spelling of "tsar," but I cannot seem to convey non-Latin alphabet script via Blogger.

posted by Curmudgeonly Clerk at 9:51 PM

 

Federalism Is Not Libertarianism:

Jonathan H. Adler, a professor at Case Western Reserve University School of Law who contributes to NRO’s The Corner on a regular basis, posted a brief note on Maryland’s efforts to reduce the criminal penalties for medicinal use of marihuana. As reported in The Washington Post, the new Maryland law, “does not legalize the drug but provides that seriously ill people caught using marijuana for medical purposes cannot be jailed or be fined more than $100.”

The measure in question was signed into law by Republican Governor Robert Ehrlich. Interestingly, Professor Adler comments that, “[p]erhaps now that Republican office holders are supporting such policies the Justice Department will reconsider its ill-fated (and anti-federalist) crusade against state decriminalization efforts” (emphasis added).

As Professor Adler’s brief comment is devoid of context, it is not obvious what he means by “anti-federalist.” But elsewhere he has written that:

Federalism is not about state sovereignty, as such, nor is federalist jurisprudence inherently hostile to the national government. Rather, the Constitution creates a system of "dual sovereignty." The Constitution explicitly enumerates those powers which may be exercised by Congress, such as coining money, declaring war, raising armies, issuing patents, and regulating commerce "among the several States." In each of these areas, the federal government's power is supreme. In virtually all others, however, state authority is plenary, limited only by an obligation to observe constitutionally guaranteed rights. As the Tenth Amendment reminds us, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." There is nothing wrong with a vigorous federal government so long as its efforts are confined to the proper sphere.

Thus, Professor Adler must mean that he believes that the Justice Department’s “crusade” is unconstitutional inasmuch as it exceeds the authority delegated to the federal government under the Constitution.

Regarding the federal government’s “crusade,” Adler no doubt has the fact patterns detailed in cases like United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001) and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) in mind.

In Oakland Cannabis, the Supreme Court held, in an 8-0 decision written by Justice Thomas, that the Controlled Substances Act, 21 U.S.C. 841 et seq., does not have a medical necessity exception and that, notwithstanding a California law decriminalizing medicinal use and distribution of marihuana, said activities remain federal criminal offenses. (For those keeping score, this Supreme Court decision was a unanimous reversal of a Ninth Circuit Court of Appeals opinion. See United States v. Oakland Cannabis Buyers’ Co-op., 190 F.3d 1109 (9th Cir. 1999 (per curiam).) However, the Court did not resolve the federalism question that Professor Adler raises. In fact, the Court explicitly reserved this issue for a future case:

Finally, the Cooperative contends that we should construe the Controlled Substances Act to include a medical necessity defense in order to avoid what it considers to be difficult constitutional questions. In particular, the Cooperative asserts that, shorn of a medical necessity defense, the statute exceeds Congress' Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments. As the Cooperative acknowledges, however, the canon of constitutional avoidance has no application in the absence of statutory ambiguity. Because we have no doubt that the Controlled Substances Act cannot bear a medical necessity defense to distributions of marijuana, we do not find guidance in this avoidance principle. Nor do we consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so in the first instance.

It does not appear that these issues have yet reached the federal appellate courts. Perhaps, when they do, the courts will vindicate Professor’s Adler’s view. (Or rather what I understand Adler’s view to be based on his cursory and cryptic “anti-federalist” comment.). Shooting from the hip, it seems highly unlikely, however, that the Supreme Court would hold that federal drug laws exceed the national government’s powers under the Constitution. The Constitution does not enact libertarian drug policy anymore than it enacts Herbert Spencer’s Social Statics. The federal government’s refusal to abide by state decisions to decriminalize certain uses of marihuana strikes me as a clear cut case of the Supremacy Clause in action. U.S. Const. art. VI.

However, I am intrigued enough to want to hear more from Professor Adler.

posted by Curmudgeonly Clerk at 7:01 PM

 

!@#$%! Blogspot:

As noted by virtually the entire blogosphere, bloggers and blogphiles alike, Blogspot is on the fritz in a major way and has been for over a week now. One assumes that this is why The Volokh Conspiracy has relocated. I would update my blawgroll accordingly (not that the Volokhs et al. depend on traffic from little ol' me), except that I have been unable to alter my template in any fashion for days now.

In the past, I have tended not to complain about Blogspot. Being on the free-version, I am getting what I am paying for after all. But the folks at Blogspot are giving me precious little incentive to upgrade to the pay versions. Indeed, I may well be looking for alternative hosting in the near future.

posted by Curmudgeonly Clerk at 2:07 PM