The Curmudgeonly Clerk

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Wednesday, July 02, 2003
 
Radio Silence:
From now through Saturday, July 12, 2003, the curmudgeonly proprietor of this site will be exercising his constitutional right to summer vacation. Regular posting will resume shortly thereafter.

No, of course, a constitutional right to summer vacation is not in the literal text of the document or in our shared constitutional tradition. But that's the beauty of substantive due process—the Constitution is what you say it is, no less and no more.



 
Thank-you:
Thanks to occasional online partners-in-crime Crescat Sententia, Freespace, and Southern Appeal for the links. We're not quite a conspiracy . . . perhaps, accessories after the fact?

Special thanks to Brett Marston for adding this homely site to his blogroll.

I'm a winner! Winner of Statutory Construction Zone's common law trivia contest, that is. It is probably an unmistakable sign of my geekiness, but I love common law trivia. I'm fairly fond of Statutory Construction Zone as well.

Finally, I'd like to offer a somewhat perplexed acknowledgment of About-Face, who has a non-visible link to this site and many others.



 
Grutter and Justice Thomas:
In the wake of his vivid dissent in Grutter, Justice Thomas has come in for the typical vitriol that is reserved for blacks who dare to leave the intellectual plantation on which tribalists would consign them to toil. See, e.g., Maureen Dowd, Could Thomas Be Right?, NY Times, June 25, 2003. (Link via Dean's World.) Yet another columnist has come for Thomas, tar and feathers in hand: DeWayne Wickham of USA Today. DeWayne maintains that Thomas is intellectually dihonest and racially inauthentic. (Link via How Appealing.) I maintain that DeWayne Wickham's first charge is baseless in a two-part post available here and here. As for the second charge, well, the sheer irony of criticizing Thomas for penning a heterodox opinion in a case that revolves around the supposed benefits of diversity speaks for itself, particularly in light of the fact that the Grutter majority embraced the University of Michigan Law School's contention that a critical mass of minority students helps non-minorities to understand that the former are not uniformly alike in thought and speech.

UPDATE I:

Timothy Sandefur, who knows a great deal more than I do regarding the views of Frederick Douglass, has several posts (Part 1, Part 2, Part 3, and Part 4) on this topic and handily demonstrates that Wickham's criticism of Thomas is way off base. Sandefur also does me a favor by correcting an error that I had made in my original post:

. . . I’m afraid the Clerk is quoting the wrong speech. Douglass reused several of his speeches, so the one that the Clerk quotes is similar to the one that Justice Thomas quoted, but the one Justice Thomas quoted was delivered to the Massachusetts Anti-Slavery Society in 1865, and you can read it online at the Library of Congress’ Frederick Douglass page.

Let the record stand corrected.

UPDATE II:

Southern Appeal has also deconstructed Wickham's piece at length. His analysis may be viewed here.



 
Justice Thomas and Frederick Douglass (Part II):
Douglass’s speech, which is available in its entirety here, focused upon extending the franchise to the black man. The relevant section of the his speech was delivered toward the end:

I ask my friends who are apologizing for not insisting upon this right [to vote], where can the black man look, in this country, for the assertion of his right, if he may not look to the Massachusetts Anti-Slavery Society? Where under the whole heavens can he look for sympathy, in asserting this right, if he may not look to this platform? Have you lifted us up to a certain height to see that we are men, and then are any disposed to leave us there, without seeing that we are put in possession of all our rights? We look naturally to this platform for the assertion of all our rights, and for this one especially. I understand the anti-slavery societies of this country to be based on two principles,—first, the freedom of the blacks of this country; and, second, the elevation of them. Let me not be misunderstood here. I am not asking for sympathy at the hands of abolitionists, sympathy at the hands of any. I think the American people are disposed often to be generous rather than just. I look over this country at the present time, and I see Educational Societies, Sanitary Commissions, Freedmen's Associations, and the like,—all very good: but in regard to the colored people there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. Gen[eral] Banks was distressed with solicitude as to what he should do with the Negro. Everybody has asked the question, and they learned to ask it early of the abolitionists, "What shall we do with the Negro?" I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature's plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! If you see him on his way to school, let him alone, don't disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot-box, let him alone, don't disturb him! If you see him going into a work-shop, just let him alone,—your interference is doing him a positive injury. Gen. Banks' "preparation" is of a piece with this attempt to prop up the Negro. Let him fall if he cannot stand alone! If the Negro cannot live by the line of eternal justice, so beautifully pictured to you in the illustration used by Mr. Phillips, the fault will not be yours, it will be his who made the Negro, and established that line for his government. Let him live or die by that. If you will only untie his hands, and give him a chance, I think he will live. He will work as readily for himself as the white man. A great many delusions have been swept away by this war. One was, that the Negro would not work; he has proved his ability to work. Another was, that the Negro would not fight; that he possessed only the most sheepish attributes of humanity; was a perfect lamb, or an "Uncle Tom;" disposed to take off his coat whenever required, fold his hands, and be whipped by anybody who wanted to whip him. But the war has proved that there is a great deal of human nature in the Negro, and that "he will fight," as Mr. Quincy, our President, said, in earlier days than these, “when there is reasonable probability of his whipping anybody.”

Douglass, supra, Part I (emphasis added).

Although Douglass did (correctly) fear the machinations of unreconstructed Southerners in the aftermath of the Civil War, a clearer articulation of what conservatives frequently denominate benign neglect would be hard to come by. Thus, it is difficult to perceive on what basis Wickham might ground his criticism.

Wickam cites Southern resistance to equal treatment of blacks in the wake of the Civil War, Plessy v. Ferguson (1896), and Cumming v. Bd. of Educ. (1899) as examples of why Thomas’s innovation of Douglass is inappropriate and without context. But it is an odd thing to argue that events that post-date the speaker’s remarks provide the relevant context. Indeed, what Wickham appears to be arguing in very cursory fashion is that the general discrimination suffered by blacks notwithstanding the Civil War constitutes a basis for race-conscious remedies (i.e., Wickham assumes that race-conscious remedies may be used to remedy societal discrimination and the effects of past societal discrimination). However, even the Court disowns this position in Grutter. Wickham’s apparent position, in fact, failed to even command a majority in Bakke. See Grutter (discussing Bakke’s holding and Justice Powell’s opinion therein). Therefore, it is Wickham who misunderstands Douglass. Indeed, Wickham owes the Justice an apology, as he did not accuse Thomas of merely being mistaken, but rather charged that Thomas was “dishonest.” I’ll leave it to the readers to determine for themselves whether Wickham’s commentary is the result of calumny or carelessness.

No doubt, Timothy Sandefur has something to say about this given his likely role in Thomas’s use of the Douglass quotation.



 
Justice Thomas and Frederick Douglass (Part I):
Justice Thomas opens his dissent in Grutter v. Bollinger with a lengthy quote from Frederick Douglass, decrying society’s interference in the affairs of the nation’s black citizens:

“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . [Y]our interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).

USA Today columnist DeWayne Wickham charges Justice Thomas with being “intellectually dishonest,” inasmuch as he considers the Douglass passage to be quoted out of context and inappropriate as a defense of the Thomas’s colorblind Constitution jurisprudence. (Link via How Appealing.) In particular, Wickham complains of words omitted from the excerpt:

So what's missing? The words that were replaced by the second ellipsis that put what Douglass said into proper context. What Douglass said in the closing lines is: ''Let him alone. If you see him on his way to school, let him alone, don't disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot box, let him along, don't disturb him! If you see him going into a work-shop, just let him alone,—your interference is doing him positive injury.''



Tuesday, July 01, 2003
 
Thanks!
Thanks to Joseph, the proprietor of A Layman's Opinion, for adding The Curmudgeonly Clerk to his blogroll. A Layman's Opinion is the blog of an expatriate American who is preparing for law school while teaching English in South Korea—an unexpected combination.



 
Grutter v. Bollinger: Some Preliminary Observations On The Majority
Unfortunately, time constraints precluded a more timely review of Grutter. My prior analysis of its companion case, Gratz, which I originally discussed without having read Grutter too deeply, is available here. A quick glance at one particular aspect of the Grutter decision, the standard of review, was noted here. Due to the new and unimproved Blogger’s glitches, I have posted the current analysis in multiple parts, which may be accessed here: Part I, Part II, Part III, Part IV, and Part V.

UPDATE:

Peter Kirsanow, a conservative member of the United States Commission on Civil Rights has an article on National Review Online that observes that Justice Scalia's dissent in Grutter almost seems like a roadmap to future educational preference-related litigation—a roadmap for opponents of preferences, that is. It's almost as if Scalia is asking would-be litigants to revisit Grutter (Link via How Appealing.).



 
Grutter v. Bollinger: Some Preliminary Observations (Part V)

Diversity’s Sunset & Ginsburg’s Concurrence
The majority’s odd view of past and future is also noteworthy. O’Connor looks forward into the future, suggesting that a quarter-century hence the diversity rationale will no longer pass constitutional muster. This statement has the feel of dicta. Beyond the suggestion that, at some point, a race-based remedy must come to and end, it is of little value.

But one wonders why diversity and critical mass will be less important than now at any future date. This sunset language reminds me of the Court’s desegregation and busing cases. Of course, in those cases, the temporal limitation was a function of the fact that specific, proven discriminatory conduct was being remedied. Hence, once the situation was ostensibly rectified, the need for the remedy expired. Diversity, does not, logically speaking, appear subject to the same constraints. So is the majority mistaken in deciding that diversity must also expire as a justification for racial discrimination, or is the Court tipping its hand to the true nature of the diversity rationale (i.e., a general remedy for societal discrimination by another name).

Justice Ginsburg’s concurrence, joined by Breyer, which emphasizes the historical conditions that avowedly require consideration of race in admissions, indicates that at least two justices might well view the diversity rationale in terms of remedying generalized historical inequities. Ginsburg also seeks to clarify the majority’s 25-year sunset language, arguing that it is merely aspirational in character. Ginsburg’s reading is, no doubt, correct, but one has little reason to be so optimistic as long as the Court continues to hand down decisions like Grutter.

Ginsburg emphasizes the unhappy racial history of the nation in upholding the Law School’s admissions program, but appears unaware of the Court’s mixed record in fostering racial reconciliation. Grutter effectively holds that the nation’s universities may integrate their student bodies, even if they must racially discriminate to do so. Ginsburg believes that this is necessary, because, among other things, the state of American secondary education:

As to public education, data for the years 2000-2001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. And schools in predominantly minority communities lag far behind others measured by the educational resources available to them.

See Grutter (Ginsburg, J., concurring) (internal citations omitted).

Of course, what Ginsburg does not acknowledge is that the Court’s own busing decisions are more responsible for this fact of modern American life than any other consideration. See generally Lino Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools (Cornell 1976). Ginsburg’s view of the past is as muddy as O’Connor’s view of the future.




 
Grutter v. Bollinger: Some Preliminary Observations (Part IV)

Less Than Strict Scrutiny?
The majority’s actual embrace of Bakke’s perceived central holding (i.e., Powell’s diversity rationale) is singularly unsatisfying. I had expected an interesting discussion of the decisions amongst the lower appellate courts (e.g., Hopwood), but the Court does not deign to distinguish or discard. Instead, the Court principally defers to the views of one of the litigants, either misapplying the strict scrutiny standard or implicitly repudiating strict scrutiny as a standard of review. Any such repudiation would be limited to the educational context, given the attenuated First Amendment (academic freedom) rationale cited in support of the Court’s diversity holding. But the majority insists that it is applying strict scrutiny, appearances notwithstanding.

Whatever the case, the majority’s muddled handling of this particular issue does not reflect well in the intellectual integrity (or honesty) of their opinion. Surely the bright lights in the majority are themselves aware of this peculiarity of the majority opinion. But see Grutter (O’Connor, J., for the majority) (“Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university.”).



 
Grutter v. Bollinger: Some Preliminary Observations (Part III)

The Basis For and Benefits of Diversity
The purported benefits of diversity asserted by the Law School are also problematic. Professor Richard Lempert justified the race-conscious admissions program on the basis that underrepresented minorities “may bring to the Law School a perspective different from that of members of groups which have not been the victims of such discrimination.” The exclusion of those of Asian ancestry and Jews from the preferred entrants was justified on that basis that those minority groups are already sufficiently represented.

This rationale is problematic for a couple of reasons. Setting aside the majority’s deference and the Law School’s self-serving representation, it is not clear that the Law School engages in any individuated examination of a minority applicant’s background to ensure that even the admitted underrepresented minority students possess this supposedly salutary background and viewpoint. That is, the Law School uses, and the majority condones, the employment of race as a proxy for worldview. This strikes me as an empirical claim that is subject to proof or disproof. Unfortunately, the majority is so deferential in the application of its strict scrutiny as to obviate any such analysis. Indeed, the majority is so deferential to the Law School’s judgment that the Court seems not to have even pursued the Law School’s proffered reasons to their logical ends.

It is also not clear why the Law School’s proposed demographic subgroupings are themselves logical. For example, why does it make any kind of sense to consider “Asians” together as a unified group? This category might encompass peoples ranging from the Turks to the Japanese (and everywhere in between). Are blacks descended from former slaves forcibly brought to the New World and more recent West African immigrants to be treated alike solely on the basis of their skin color and the perceived values that coincide with their melanin content? The majority opinion evinces no awareness of such concerns or the crudity of race and ethnicity as a proxy for viewpoint.

Perhaps, sensing the inadequacy of Lempert’s views as a justification, the Court instead emphasized the viewpoint of another of the Law School’s experts. Compare Kent Syverud’s explanation with Lempert’s. Syverud argued that, “when a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.” It is difficult to square this contention with Lempert’s proffered rationale supra. On the one hand the presence of minorities is asserted to be an educational boon due to their unique perspective; on the other, we are told that the virtue of a critical mass of minority students is the realization that not all members of minorities march in lockstep.

Frankly, it is difficult not to be offended by the obtuseness and pretense of Syverud’s would-be justification. By the time that students reach law school, they are generally at least 22 years of age. Is it really Syverud’s contention that at that age, having already been subjected to four years of diversity-related cheerleading at the undergraduate level, that matriculating law students remain unaware of differences between and among minority groups? Isn’t Syverud’s baseline assumption really that non-minorities (i.e., whites) are ignorant and/or racist? And, if so, does his proposed rational run afoul of the more general constitutional prohibition against racially remedies that seek to address societal discrimination and prejudice?

Even assuming arguendo that Syverud’s students are as benighted as he suggests, might it not occur to them on their own, at some point during their three years of legal education, that all blacks must not think alike simply on the basis of their exposure to the widely divergent views of Justices Marshall and Thomas? The majority thinks not. See Grutter (O’Connor, J., writing for the majority) concluding that the Law School cannot properly fulfill its mission “with only token numbers of minority students”).




 
Grutter v. Bollinger: Some Preliminary Observations (Part II)

The Numbers Game
Justice O’Connor, writing for the majority, okays the Law School’s “critical mass” rationale for factoring race into the admissions process. Race was taken into account “to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body” (emphasis added). “‘Critical mass’” signifies “‘meaningful numbers’ or ‘meaningful representation’” such that the number of minority admittees “encourages underrepresented minority students to participate in the classroom and not feel isolated.”

How this generalized sense does not amount to a de facto quota is left unanswered. Chief Justice Rehnquist’s dissent indicates that this concern may be unanswerable in any intellectually honest fashion. The majority’s apparent rejoinder on this point is that, because the Law School sought to achieve a “critical mass” not for the sake of numbers but for the educational benefits alleged to flow from these numbers, that the undeniable numerical nature of minority admissions is constitutional.

Race is averred to be among one of many “‘soft variables’” considered on an individuated basis. The majority apparently accepts this argument. But the Law School’s own expert, Dr. Stephen Raudenbush, contradicts any such contention.

In Dr. Raudenbush’s view, a race-blind admissions system would have a “‘very dramatic,’” negative effect on underrepresented minority admissions. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Under this scenario, underrepresented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent.

Grutter (internal citations omitted)

Absent the majority’s extreme deference, it is difficult to conceive how this fact, in conjunction with the Law School’s avowed desire to achieve a “critical mass” of minority students could fail to send up the jurisprudential equivalent of red flares. It is pretty obvious that a numbers game is being played here. As a result, O’Connor’s concurrence in Gratz embraces a rather rigid and indefensible formalism.

The majority attempts to avoid the appearance of a numbers game by distinguishing between goals and quotas. To the extent that this distinction is tenable at all—a proposition that I very much doubt (viz. isn’t any goal that per force suppresses the enrollment of non-favored demographics a quota by the majority’s own definition?)—the factual record documented in the majority opinion and in Rehnquist’s dissent does not lend itself to such parsing. The alleged non-quota nature and individual consideration of applicants is sufficient to render the Law School’s scheme constitutional in the eyes of the majority.

The majority also wishes to assure readers that all minority students “admitted by the Law School have been deemed qualified.” Of course, this sort of self-serving testimony is of little value in the absence of an objective comparison of the applicants’ respective qualifications. Recall the testimony, discussed supra of the Law School’s own expert, Dr. Raudenbush. The majority’s statement in this regard is also something of a non-sequitur. Qualification in the abstract is not the issue. Relative qualifications are. The relevant comparison is between minority candidates and non-minority candidates. Having decided that discriminating between the two in admissions is permissible, surely the majority does not blanch from examining the reality of such discrimination.




 
Grutter v. Bollinger: Some Preliminary Observations (Part I)
The Line Up
As has been noted, the Court’s decision was handed down by a narrow margin (i.e., 5-4), with Justices O’Connor, Stevens, Souter, Ginsburg, and Breyer voting to uphold the University of Michigan Law School’s minority preference admissions program. There are two interesting things to note about this line up, however.

First, Justice Stevens wrote an opinion concurring in part and dissenting in part in Regents of Univ. of Calif. V. Bakke, 438 U.S. 265 (1978). Although Stevens wrote that the general use of race in admissions was unripe as an issue in Bakke and declined to address the practice’s constitutionality, id. at 411-12, Stevens et al. regarded The University of California’s admissions plan as violative of the terms of Title VI of the Civil Rights Act of 1964. Id. at 414-20. Interestingly, Stevens does not write separately in Grutter to explain why it differs from Bakke or how his views have changed since the latter case. (You’ll recall that Stevens wrote solely with reference to standing in Gratz.) Justice O’Connor’s majority opinion notes that the Petitioner raised the Title VI argument in Grutter.

Second, Justice Kennedy’s dissent in Grutter hints that this decision might have been 6-3 had the majority rigorously applied strict scrutiny and found the Law School’s admissions program passed muster. That is, Kennedy would uphold Powell’s diversity rationale. See Grutter (Kennedy, J., dissenting) (“The opinion by Justice Powell, in my view, states the correct rule for resolving this case.”)



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.

UPDATE:

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.

UPDATE:

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



Thursday, June 26, 2003
 
NOTE TO READERS:

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!)

UPDATE I:

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

UPDATE II:

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.)

UPDATE I:

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.

UPDATE II:

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.

UPDATE III:

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.



 
Thank-you:
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.

UPDATE I:

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

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

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

UPDATE II:

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

UPDATE III:

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

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

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

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

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

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

UPDATE IV:

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

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

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

Balkin attempts to lure Buck with the following siren song:

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

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

UPDATE V:

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

UPDATE VI:

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE I:

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

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

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

UPDATE II:

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

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

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

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

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

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

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



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.

UPDATE:

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

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



 
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.

UPDATE I:

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

UPDATE II:

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

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

UPDATE III:

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

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

UPDATE IV:

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

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

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

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

UPDATE V:

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