The Curmudgeonly Clerk

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Saturday, June 28, 2003
So Who’s in Charge of American Foreign Policy Anyway?
Daveed Gartenstein-Ross, who was formerly a curmudgeonly clerk in another federal court, has posted a Note to SSRN that originally appeared in the New York University Journal of International Law & Politics. See Garenstein-Ross, A Critique of the Terrorism Exception to the Foreign Sovereign Immunities Act, 34 N.Y.U. Int’l J. L. & Pol’y 887 (2002). The note has a compelling thesis, one with which I am inclined to agree:

My argument is simple: Because terrorism is a foreign policy problem, it is best dealt with by the political branches of government rather than by a wide array of courts and judges engaging in their own foreign policy experiments. Since the United States may have to reach out to countries that are currently designated as state sponsors of terrorism in order to combat this threat effectively, the exception—which vests considerable power in politically unaccountable actors with no foreign policy expertise—is at cross-purposes with the goal of uprooting terrorism.

Id. at 888-89.

The terrorism exception to the FSIA, enacted in 1996 in response to legal difficulties in the case surrounding the bombing of Pan Am 103, among other things, was well-intentioned, but ill-conceived. It should be jettisoned by the Congress. Gartenstein-Ross does a good job of explaining why.

Of course, I may be biased. I think that litigation-oriented approaches to combatting terrorism are flawed in general. Although law’s empire is a vast dominion, sometimes the sword is mightier than the pen, or the gavel.


The United States Court of Appeals for the District of Columbia Circuit has affirmed a district court's dismissal of a case brought that discusses the FSIA and touches upon the terrorism exception and its wisdom. See Roeder v. Islamic Republic of Iran, No. 02-5145 (D.C. Cir. July 1, 2003). (Link via How Appealing.)

Friday, June 27, 2003
Russian Roulette:
That’s the game that peer-to-peer file swappers and the record industry are playing these days. For those not in the know, the RIAA and others have now indicated that they intend to sue individual file pirates for exchanging copyrighted materials over the Internet. As detailed by Reuters:

“Next time you or your kids 'share' music on the Internet, you may also want to download a list of attorneys,” a bold print headline said in the advertisement in the New York Times, signed by 13 different music trade groups and associations.

(Link via Tech Law Advisor.)

Needless to say, critics of the RIAA have been quick to register their disapproval. And it is not as if the record companies did not have their fair share of criticism even before the latest threats. (Link via Instapundit.)

From a public relations perspective, this seems like a self-inflicted gunshot wound. One gets the distinct impression that if the RIAA et al. spent half as many resources developing a viable for-pay online distribution system, they could furlough some of their own lawyers. The potential amount of time and money that such a litigation strategy is bound to consume is staggering. Internet Service Providers are likely to bear some of the brunt of this maneuver as well. And you can guess to whom these expenses will be passed. (Hint: If you are reading this blog, the answer is you.)

Regular readers of this blog—both of them—know that I am ill-disposed to peer-to-peer theft. And theft is what it is, pure and simple. If one feels that local gas stations are charging exorbitant prices, one cannot respond by filling up and then driving away without paying—even if one correctly thinks that the prices themselves are the result of a host of iniquities. Whatever the RIAA et al.’s sins, one cannot simply decide to misappropriate their property.

So has the RIAA successfully alienated me, the law-abiding Internet user? Yes, it most definitely has. But I still cannot help but feel that the RIAA’s targets are ultimately to blame for this nonsense. The moving force behind this, after all, is their disregard for property rights.


Further musings on this topic can be accessed here. (Link via Tech Law Advisor.)

Thursday, June 26, 2003

Blogging may be light to non-existent today. The folks at Blogger have improved things, which, of course, means that I am encountering tremendous difficulties in posting anything. Things are so unproductive that I feel inclined to coin a new word usage:

Bog vb [var. of blog] 1: attempting to blog, but failing due to the morass that is the Blogger interface — usu. used with expletives (Son of a . . . the Blogger interface is bogging again!)


Apparently, I am not the only one to notice the push-button non-publication aspect of the new and improved Blogger.


And the empirical evidence continues to mount.

Wednesday, June 25, 2003
Legally Insane?
I have my doubts that this proposed test for legal insanity will catch on in the courts . . .

The History of Executive Orders:
Recent comments by presidential aspirant Dick Gephardt (D.-MO) on his planned use of executive orders should he become the head of the executive branch has aroused the ire of many in the blogosphere. Given the ubiquity of the criticism, I will dispense with most links. But in the process of commenting on the affair, Nashville journalist Bill Hobbs has pointed to a pithy research paper by Todd Gaziano on the use of presidential directives from the presidency of Washington onward. Hobbs has also pointed to the Federal Register's Executive Orders Disposition Tables, via which information regarding executive orders issued from 1937 through the present may be accessed.

(I was originally sent in Hobb's direction by Instapundit.)


Stuart Buck has collected a fair sampling of the criticism leveled at Gephardt and, in the capacity of devil's advocate, has articulated a nice historical counter-argument to said criticism. You can find his thoughts on the topic here.


Professor Marston has also taken an interest in this topic and takes Gephardt's critics on here, here, and here. Marston also provides copious links to the criticism that he is rebutting. Although I disagree with Gephardt's politics, I think that Marston's spirited defense rings true.


Professor Wagner, who definitely does not share Gephardt's political leanings, also comes to the latter's defense. And, to add fuel to the fire, he does so in the context of excoriating Lawrence v. Texas.

Thanks so much to Steve at Begging to Differ and Stuart Buck for adding this homely site to their blogrolls.

Likewise, many thanks to Professor Marston, JB of "Riting On The Wall", and JudicialSelection.Org of the Free Congress Foundation for the links (here, here, and here).

A special thank-you goes to Timothy Sandefur who has begun devoting a smidgen of his personal time to ensuring that I do not begin taking myself too seriously.

By the Way:

I have noticed that Technorati does not always identify every link that is made to this site. If you link me and the link goes unnoticed, feel free to e-mail. I am always grateful for the links and I am happy to acknowledge them. Of course, with my gratefulness and acknowledgment and fifty cents, you are still about fifteen cents short of a soda pop in most major metropolitan areas.

Tuesday, June 24, 2003
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.


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"?


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."


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?


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.


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


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.

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?


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.


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.

Monday, June 23, 2003
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.

Friday, June 20, 2003
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.


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.

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.

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.

Thursday, June 19, 2003
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.


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."


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.


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.)


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.


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.

Wednesday, June 18, 2003
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?


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.


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.


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.

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.

Tuesday, June 17, 2003
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:



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.



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.