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

 

Clerking & The "Top 20" Law Schools:

The chart below is compiled from data in The 2003 BCG Attorney Search Guide to Class Ranking Distinctions and Law Review Admission at America's Top 50 Law Schools. (Link via JD2B.)

The Rank column represents U.S. News & World Report's estimation of the law school hierarchy, with asterisked entries reflecting ties. The % Clerks column provides the percentage of the given school's graduating class that clerked for the courts. The Raw # column translates the foregoing percentage into a raw number based on the number of students admitted into the incoming class, with all fractions rounded to the nearest whole number. Obviously, there is some margin or error given that the % Clerks column uses exit numbers, while the Raw # employs exit figures. Nonetheless, the Raw # column likely remains a close approximation.

CLERKING & THE "TOP 20" LAW SCHOOLS

Rank	Law School	% Clerks	Raw #
1	Yale	48.4%	90
2	Stanford	32.7%	59
3	Harvard	24.0%	134
4	Columbia	18.5%	70
5	NYU	15.5%	66
6	Chicago	29.4%	57
7*	Berkeley	13.6%	38
7*	Michigan	18.0%	63
7*	Pennsylvania	17.5%	59
7*	Virginia	16.7%	58
11	Northwestern	9.0%	22
12	Duke	22.1%	44
13	Cornell	22.1%	47
14	Georgetown	10.6%	49
15	Texas	13.3%	72
16	UCLA	7.4%	23
17	Vanderbilt	14.3%	28
18*	Iowa	16.2%	36
18*	Minnesota	26.9%	74
18*	USC	8.7%	18
18*	Washington & Lee	27.0%	37

It is interesting to see the wide variation in the percentage of law students who decide to clerk after graduation among the top tier law schools. The fact that nearly half of Yale's (relatively small) class clerks is nigh astounding! I am also surprised that Northwestern and UCLA have such a small comparative percentage of clerks. One wonders what accounts for such phenomena. Doubtless, there are inumerable variables.

That chart also excludes significant data. For example, the data from the BCG Attorney Search Guide regarding percentages of students who clerk after graduation does not distinguish between federal and state clerkships; nor does it differentiate between trial court and appellate clerkships. Given that federal clerkships are (rightly or wrongly) perceived as more prestigious, one wonders what the percentages woud look like if this data were available. The same could be said regarding federal appellate clerkships, which are generally regarded as more prestigious than clerkships in the district courts. One also wonders what percentage of the total judicial clerkships available in the United States are filled by students from the "Top 20," and where the remainder of judicial clerks come from.

I'm also somewhat amazed that of the raw number that clerked from my alma mater after graduation, I know only a handful by name. I guess that I was even more antisocial than I previously reckoned.

posted by Curmudgeonly Clerk at 10:13 PM

 

Your Wish Is My Command:

A reader has written in via e-mail with a rather unexpected request:

If possible, could you stop making paragraph long text links? The reason has to do with the way the blind listen to web pages.

Our text-to-speech readers speak the entire text of a link when we encounter it. We go through a page with a down arrow key. Your multiple line link/paragraphs result in our hearing the word "link" followed by the entire text of the paragraph each time we down arrow through any line of the paragraph.

The material is excellent and fun to read, but not if you have to put up with this distortion caused by the speech software.

Request granted.

I wonder if corporate or government sites have linking guidelines in order to render content intelligible/readable via text-to-speech readers. Anyone know if there is any ADA-related law on this front? For that matter, is there a disability law blawg?

posted by Curmudgeonly Clerk at 7:43 PM

 

Can Blogging Be Curtailed?

In the context of discussing the ethical boundaries of blogging by judicial (and other federal) employees, I previously noted an observation made by Judge Posner that was brought to my attention by Will Baude. Baude commented that:

. . . When Richard Posner (my former boss, though not in a clerk capacity) spoke on a panel here on the ethics of clerkships, he said he was astonished to learn all the rules they're supposedly required to obey. He asks them not to speak about pending matters and leaves it at that—partially because he's concerned with the spread of ideas, but also because he suspects they won't obey the rules otherwise.

It now appears that those who do not wish to obey the rules (i.e., the Code of Conduct For Judicial Employees) will not lack the means of evading them. Via Invisiblog, those who wish to blog completely anonymously may do so unhindered. The product's website states that:

invisiblog.com lets you publish a weblog using GPG and the Mixmaster anonymous remailer network. You don't ever have to reveal your identity - not even to us. You don't have to trust us, because we'll never know who you are.

(Link via Net.Law.Blog; see also William O'Shea, Sharer of Secrets, The Village Voice, July 16-23, 2003.)

So the judiciary and the federal government can impose blogging bans, but it does not appear that they will be able to enforce them. My own take is that federal employees generally ought to comply with whatever rules the government lays down in this area. But, like Judge Posner, I cannot help but think that others will feel differently, particularly given the fact that almost no one considers this a matter of ethics, notwithstanding the phraseology of the Code.

posted by Curmudgeonly Clerk at 9:50 AM

 

Thanks:

Thanks to all those who have stopped by to take a gander at my musings on ethics and other topics of late. And, as always, many thanks also to the folks who have linked to The Curmudgeonly Clerk. In particular, I’d like to extend my thanks to first-time linker Doug Kenline and to the following sites that have blogrolled me: Life, Law, Libido, The Manifest Border, Sixth Circuit Blog, and The Yin Blog.

posted by Curmudgeonly Clerk at 1:48 AM

 

Campaigning the Old-Fashioned Way:

Sixth Circuit Law links to this story regarding a would-be lawsuit that Nashville-area gadfly John Jay Hooker attempted to file against the city's incumbent mayor. In particular,

Hooker attempted to file the suit last week, charging the mayor had violated state and federal provisions against providing food and drink to prospective voters. Hooker’s suit attempts to address what he says is an election process that “is corrupt at the core and deprives voters of a ‘free and equal’ . . . election.”

Although doling out foodstuffs may be illegal, and doing so in sufficient quantities might even manage to corrupt the electoral process at the margins, I find it hard to get very worked up about such accusations. The Republic has a venerable tradition of such campaigning. To wit:

When [George Washington] ran for the Virginia House of Burgesses from Fairfax County in 1757, he provided his friends with the 'customary means of winning votes'; namely, 28 gallons of rum, 50 gallons of rum punch, 34 gallons of wine, 46 gallons of beer, and 2 gallons of cider royal. Even in those days this was considered a large campaign expenditure, because there were only 391 voters in his district, for an average outlay of more than a quart and half per person.

George Thayer, Who Shakes the Money Tree? American Campaign Financing Practices From 1789 to the Present 25 (Simon & Schuster, 1973).

And despite this incredible largesse, Washington's only regret was that he had not distributed even more aqua vitae! Richard Brookhiser puts Washington's tactics in context:

In those days, in elections in colonial Virginia, the voters expected to be treated to drinks by the candidate. This was technically illegal, but it was universal. Everyone did it; voters expected their drinks on Election Day because it was like a holiday. Everyone would go to the polling place. It was a daylong affair. You would cast your vote in public, and you expected your drink. Washington could not be at the hostings on the day of his election but he had a friend who was, in effect, his campaign manager who was there. We have their correspondence, so we know what drinks Washington bought for the voters in his first election. He bought them twenty-eight gallons of rum, fifty gallons of rum punch, thirty-four gallons of wine, forty-six gallons of beer, two gallons of cider. This adds up to 160 gallons of liquor. There were 397 voters. You do the math. That is a little less than two quarts per voter. Washington won. His only complaint to his campaign manager was that he had not spent enough.

And this practice did not pass with the father of our country:

During the presidential campaign of 1840, William Henry Harrison's campaign spin doctors offered free cider to supporters of the Harrison-Tyler ticket. The "free-cider" strategy proved so successful during campaigning that the tactic was employed again at the polls on election day for all that voted for Harrison. It became known as the "cider campaign" and Harrison won the election by a landslide.

Now I ask you, which is the better system: the present one, in which members of the electorate may purchase seats at $x,xxx.xx per plate dinners for the privilege of hearing candidates mouth pablum and twaddle; or the "corruption" of yesteryear, in which candidates were at least gracious enough to provide we, the people, with a refreshing beverage in recompense for tolerating their prattle? Let me get this straight. It's perfectly ethical, legal, and seemly for candidates to promise voters that, once ensconced in office, they will redistribute as much of my money to their voters as they can get their hands on, but if they dare provide some victuals and a lager on the campaign trail a line has been crossed? Aristotle noted the danger of the first possibility, but no where suggested in his writings that one of the defects of democracy was the potential for vote-buying via beer.

And let's face it, if the current primary season is any indication, we are going to need a lot of beer or beer-like beverages. John Adams apparently preferred cider, writing in his diary that he began each day by drinking a tankard of it to put his stomach at ease and alleviate gas. I concur with the estimable Mr. Adams; candidates may feel free to buy me my favorite cider at will. It'll be our little secret.

UPDATE:

Timothy Sandefur has added a wonderful colonial vignette about James Madison and his unfortunate decision to abandon tradition on the campaign trail.

Professor Solum is aghast. But I am confident that this initial impression is nothing that a cider cannot remedy.

posted by Curmudgeonly Clerk at 4:18 PM

 

Blogging, Clerks, and Ethics: Feedback

Federal law clerks may be placed in something of an ethical quandary should they decide to start up their own weblogs. I originally broached this topic here and here. Since my initial posts, other bloggers and e-mailers have addressed the issue as well. Their observations—interspersed with my commentary—follow below.

[1] A blogger over at The Academy informs the blogosphere that I am mistaken regarding the number of federal law clerk blawgers. Apparently, “Mindse” and one other person at that group blog are finishing up federal clerkships just now.

Mindse makes some very interesting observations. I have made much of the virtue of anonymity for law clerk blawgers. Mindse is less optimistic on this score:

I realized early on that anonymity is a crock, and code names do not work. Smarties will know where you work and who you're talking about right away. This finally dawned on me during one of my law firm interviews. At the end, the interviewer leaned in confidentially and said, "I love your Blog." This stunned me. But, she put two and two together. It's a small legal world, folks.

I have to admit that I find that ever so unsettling.

Mindse also offers the following thought:

. . . I think it's very challenging to be an ethically secure federal judicial law clerk blogger. I think discussing matters that can reflect on your employment is no good. I think discussing the size of my ass, my saucy convertible, and (to a certain degree) Supreme Court cases is okay. To answer the most important question: do I think it's okay for people to know that I think Pat Robertson is an a-hole? As long as he's not a party to a matter on my desk, Yes.

I am not so sure. First, might it be possible to compromise the integrity of the judiciary or sully the reputation of the third branch of government in blogging about purely personal matters? Would this be too much? Second, can clerks indiscriminately blog on political issues? While Canon 4A allows for writing on legal matters, Canon 5A counsels that judicial employees “should not make speeches for or publicly endorse or oppose a partisan political organization or candidate,” for example. Thus, there seems to be some limitation on the political remarks of law clerk bloggers. It’s just a matter of determining the proper scope of that limitation.

[2] Speaking of law clerk blawggers, another informs me via e-mail that he blogs anonymously—completely anonymously. That is, this particular clerk runs a blawg but does not acknowledge his status as a judicial employee at all. This particular clerk retroactively sought his judge’s permission to blawg after Canon 4A came to his attention, and the judge signed off on the idea.

A second clerk informs me that she maintains a personal weblog on an anonymous basis, one that is entirely devoid of legal commentary. This latter blogger also owns/moderates a fan-type bulletin board as well.

[3] Others clerks (and judges) are apparently more risk averse. “CY”, a fellow Texan, at Cyoes reveals that at least one law clerk has been discouraged from setting up a blog due to the potential consequences.

Another clerk wrote in, saying that he once ran an anonymous blog during his clerkship on the assumption that it was perfectly kosher to do so, but later abandoned the project. He does not specify the reason for discontinuing the blog. But he indicates that his judge would have likely not approved such an endeavor:

. . . I generally agree with . . . your assumption that few judges would allow their clerks to have blogs if (a) they were asked and (b) they understood what their clerk was talking about. I expect that the response from my own judge, who is [older], would be lack of comprehension and deep suspicion.

[4] Aside from Mindse, see above, many (including me) have made much of the virtues of anonymity. One non-clerk e-mailer goes so far as to assert that:

Blogging truly anonymously should steer you clear of any rule problems. After all, the clerk is not the one doing the writing or speaking in that instance—the rule simply does not apply.

Howard Bashman has rejected this position, and I agree with this assessment.

As a practical matter, one might generally eliminate any possibility of detection by blogging under a cloak of total anonymity. In addition, one also likely precludes damaging the dignity of the court by refraining from self-identification. However, the Canons appear to apply to the conduct of judicial employees whether or not they disclose their status. By my e-mailer’s reasoning, it would be perfectly acceptable to “public[ly] comment on the merits of a pending or impending action” so long as it was done without attribution, notwithstanding Canon 3D. That can’t be right.

[5] Finally, one e-mailer writes in to contest the notion that there is anything impenetrable or mysterious about the “appearance of impropriety” standard articulated in Canon 2:

The "appearance of impropriety" and the "calling into question the integrity of the judiciary" prohibitions are judged under a reasonable-man standard. Thus, the fact that some unreasonably believe that a lawyer who is unabashedly proud of his Southern ancestors is undignified, is irrelevant.

In obvious cases this may be helpful. But in general, I think it is somewhat question-begging to define the “appearance of impropriety” with reference to reasonableness, particularly with regard to political and legal issues—about which reasonable people sometimes heatedly disagree. Consider matters of race or sexuality and their intersection(s) with the law, for example. Debate concerning these issues is often extremely contentious, and people frequently deny that their opponents are sane let alone reasonable. Indeed, such debates often devolve into assessments of the moral shortcomings of one’s adversaries. So what does a reasonable-man standard of ethics mean when reasonableness itself is often a matter of debate?

UPDATE I:

One of the great advantages of electronic communication is its sheer speed, the ability to span great distances in almost no time and at little cost. Notwithstanding these virtues, sometimes e-mail just increases the speed at which we miscommunicate. My correspondent who wrote in regarding the "appearance of impropriety" and other vague ethical standards has written in once again to let me know that just such a misunderstanding is afoot:

My previous e-mail must have been ambigious because I was not "contest[ing] the notion that there is anything impenetrable or mysterious about the “appearance of impropriety” standard articulated in Canon 2. I was merely pointing out that the standard applied by Committee is a reasonable-man standard and thus the fact that some believe that blawging creates an appearance of impropriety is not controlling.

But I do agree that reference to reasonableness doesn't really help much, for the reasons you noted. However, that IS the standard, so in response to your question: "So what does a reasonable-man standard of ethics mean when reasonableness itself is often a matter of debate?" It means whatever the Committee "feels" it means if you seek an advisory opinion, although that opinion can be disregarded by a judge, and then it means whatever a clerk or judge believes it means. And reasonable men may disagree with either assessment, as the numerous exchanges you highlight demonstrate. So in the final analysis, other than the outright prohibitions established by the Code (maintaining confidentiality, prohibittng comments on pending cases), the Code leaves it is up to the individual blawger (in consultation with his judge) to determine whether he believes his conduct is unreasonable.

Well, that sounds like a reasonable reading to me.

UPDATE II:

Will Baude relates some very interesting comments made by Judge Posner:

I don't have much to add to the analysis, except to note that different standards satisfy different folks. When Richard Posner (my former boss, though not in a clerk capacity) spoke on a panel here on the ethics of clerkships, he said he was astonished to learn all the rules they're supposedly required to obey. He asks them not to speak about pending matters and leaves it at that—partially because he's concerned with the spread of ideas, but also because he suspects they won't obey the rules otherwise.

I'm not sure whether that reflects poorly on clerks, or the rules, or both. Having recently re-read the Canons, I am not sure what to make of them. I understand the concerns that underlie them. But I am unconvinced that the strictures of Canon 4A are necessary. It seems that Judge Posner is likewise unconvinced. One wonders how many members of the federal judiciary have even read the Code of Conduct For Judicial Employees, and what their opinions would be if they did so. At present, it appears that much more depends upon the individual hiring judge than the provisions of the Code.

posted by Curmudgeonly Clerk at 1:17 AM

 

Merci Beaucoup:

Sitemeter informs me that I have been garnering an unusually large amount of traffic (for me) over the past few days. It's always very flattering to know that you have written something that others find worth reading, especially when the "others" are fellow members of the legal community who typically have little time for trifles.

And it goes without saying that the increased traffic is partly (and, perhaps, largely) attributable to postive word-of-mouth from distinguished bloggers. Many thanks to the folks who have been linking to me lately: Blawg.Org, Corante On Blogging, How Appealing, Legal Theory Blog, Marstonalia, Memeufacture, and Southern Appeal.

And a special thanks to Mellow-Drama for linking and blogrolling The Curmudgeonly Clerk with the observation that my site is “a good read even despite the fact that he's from Texas.” Yes, it's a backhanded compliment, but I'll take 'em any way I can get 'em. (But what's wrong with the Lone Star State?)

posted by Curmudgeonly Clerk at 10:47 PM

 

Many Thanks:

Technorati has been unreliable of late to say the least. As near as I can tell, the following folks have recently been kind enough to link to this site: All Deliberate Speed, Bag and Baggage, Crescat Sententia, How Appealing, Net.Law.Blog, Southern Appeal, Stick Bug Blog, and Tech Law Advisor. Many, many thanks folks.

I would also like to thank Publius Minor for privileging my site with a permalink on its blogroll.

posted by Curmudgeonly Clerk at 2:01 AM

 

The Ethics of Blogging for Law Clerks:

Introduction
The recent curtailment of blogging by federal employees has created some buzz. The type of folks that populate the blogosphere are naturally rather solicitous of the ability to freely blog. My initial post on the matter may be viewed here, along with several updates and links to the thoughts of other bloggers.

In addition to addressing the issue in general terms, I focused on the propriety of blogging by federal law clerks. Given feedback that I have received via e-mail and through responses on other sites, I thought the issue was worth returning to with some additional commentary.

The Rules As a Descriptive Matter
Remarks elsewhere indicate that others have interpreted a post authored by Howard Bashman to be in conflict with my observations. However, having conferred with Mr. Bashman, I believe that he and I are actually in almost total agreement. I think that the confusion arose as a result of my not being as clear as I had hoped in my initial post.

Assuming that the Canon’s grant of permission to “write” extends to virtual writing (i.e., blogging), my reading of Canon 4A of the Code of Conduct For Judicial Employees leads me to believe that blogging by federal law clerks is “ethical” (i.e., permissible) so long as it does not:

(1) “detract from the dignity of the court”;

(2) “interfere with the performance of official duties”;

(3) “adversely reflect on the operation and dignity of the court”; or

(4) violate any of the other provisions of the Code, with likely provisions being Canon 1 (requiring clerks to safeguard “the integrity and independence of the Judiciary”), Canon 2 (admonishing clerks to avoid the appearance of impropriety, lending “the prestige of the office to advance . . . private interests,” and employing “public office for private gain”), Canon 3D (forbidding public comment on pending and impending actions and disclosure of confidential information obtained via one’s official duties), and Canon 5A (regarding “partisan political activity”).

In addition, if one’s blogging “concern[s] the law, the legal system, or the administration of justice, the judicial employee should first consult with the appointing authority to determine whether the proposed activities are consistent with the foregoing standards and other provisions of this code.” In other words, if clerks blog about the law, they must first consult their employer (i.e., the judge for which they work) and obtain permission.

The Rules in Practice
Howard Bashman thinks that the aforesaid preapproval requirement amounts to a prohibition of law clerk blogging as a practical matter inasmuch as most judges are unlikely to grant their clerks carte blanche to hold forth online. That may well be true. Sitemeter informs me that many of the folks viewing my page in the last day or so were doing so via uscourts.gov internet addresses. I would be interested in hearing from any clerks and/or judges as to whether this is true in their particular case. I can be e-mailed here. Your anonymity is assured.

Of course, even if Bashman is mistaken, there are other potential obstacles to blogging. For starters, my assumption that the “write” language of Canon 4A is equally applicable to online writing is possibly mistaken. Denise Howell apparently shares my view that there is no principled basis for distinguishing between traditional and internet mediums. However, at least one e-mailer seems to think that there is at least a colorable basis for distinguishing the two, and suggests that the matter be broached by requesting an advisory opinion from the Committee on Codes of Conduct.

Finally, there is the matter of the other admonitions in Canon 4A and the additional prohibitions in the other Canons. Some, like the guidance to avoid even the appearance of impropriety, are so nebulous as to be mere Rorschach blots. They are akin to Caesar’s desire that his wife not “‘be so much as suspected.’” 2 PLUTARCH’S LIVES 1368 (Thomas North trans. 1941). How does one interpret them, let alone enforce them? Is Southern Appeal’s unabashed admiration for the Old South, as some see it, an affront to the dignity of the court for which that blogger works? Some would undoubtedly regard it as such.

Denise Howell suggests that such provisions be ignored. Howard Bashman advocates that the rules are the rules, and that clerks of all people ought to abide by them. I agree with both sentiments. To the extent that we know what the rules are, I am generally for obeying them. But, in part, I have no idea what the rules are, and neither does anyone else. Almost no case law touches upon the Code of Conduct for Judicial Employees. It is my sense that equivalent provisions regarding impropriety in lawyer codes are invoked either in easy cases (i.e., when the circumstances are obviously egregious) or as a supplement to more specific code violations.

I also highly doubt that the Committee on Codes of Conduct could do much to clarify such vague prohibitions. However, a fellow law clerk blogger points out a prior bit of potentially helpful general guidance offered by the Committee:

I would like to point out this odd selection from the Compendium of Selected Opinions of the Judicial Conference Committee on Codes of Conduct (Part Four of the Compendium contains selections relevant to law clerks culled from the first three parts of the Compendium, which in turn summarize principles derived from the Committee's Advisory Opinions; the selections were excerpted by the Hon. David M. Ebel, a Tenth Circuit judge and member of the committee). Section 4.3(h) (sorry, link unavailable) reads:

(h) A law clerk may establish an online discussion forum on legal issues, for compensation and outside of working hours, but should not be identified as a law clerk and should not provide information about cases pending or likely to arise before the court[.]

Is a blog an "online discussion forum"? Does the rule have any applicability if the clerk is not compensated? Is there some value in anonymity after all? Oddly, I can't find the actual published advisory opinion from which this principle is derived (maybe it's an unpublished opinion?), which would shed at least a little more light on this subject. Any thoughts?

The non-profit nature of the ruling no doubt stems from Canon 2. Elimination of any monetary profit in conjunction with anonymity, which ensures no possibility of personal gain, appears to resolve the concern that Judge Ebel sought to address. Absent these concerns, the advisory opinion seems to indicate little concern regarding online activities.

Carolyn Elefant seems to counsel non-compliance with even obvious provisions of the Code. At a minimum, she advises that government employees who wish to continue blogging ought to take measures to alter whatever rules are ostensibly prohibitive. The upshot of her post seems to be that she considers any prohibition to be ridiculous. Will Baude’s preliminary assessment of a potential conflict between the Canons and the Free Speech rights of government employees lends some credence to the notion that the rules might be successfully resisted.

Nonetheless, I have my doubts about the wisdom of such resistance—even if the rights are there to be claimed, at least as far as law clerks are concerned. Were the Judicial Conference of the United States to decide that law clerks should under no circumstances blog—even with preapproval from the judge who hired them—I would readily comply. I would not do so out of intellectual agreement, but out of desire to spare my individual employer any public embarrassment. I blog on a quasi-anonymous basis out of prudence, so as to shield my employer from any association with this site. It would hardly do to embroil the court in a controversy regarding the ethical conduct of its clerks.

Personal Blogging Versus Blawging
To my knowledge there are only three law clerks who blog on legal issues at present: Stick Bug Blog, Southern Appeal, and myself. However, there are other law clerks who maintain sites of a more personal nature; Bag and Baggage lists some such "vanity" blogs. See, e.g., Lane McFadden. In addition, a potential third category is occupied by clerks whose sites are not strictly personal, yet also seem to avoid discussions of legal (but not necessarily political) topics. See, e.g., Trivial Pursuits. Different rules appear to apply to each type of blog. Although Canon 4a's other prohibitions (e.g., appearance of impropriety) apply to even sites of a personal nature, the preapproval mandate (i.e., the requirement that clerks obtain their employer's permission) extends solely to those who blog about legal matters. Strangely enough, Will Baude observes that First Amendment law indicates the exact opposite (i.e., the personal sites of government employees are subject to greater regulation than those devoted to matters of public interest like the law). Yet again the rules seem awfully unclear, if not just plain awful. What is one to make of the situation?

Conclusion
Thus far, it seems to me that both blogging and blawging are permissible activities for law clerks. However, both are subject to certain limitations, some of which are indeterminate, perhaps indecipherable. This matter is actually far more complex than I first imagined when I embarked on this venture. Greater clarity would be a boon to all, but I must admit that I lack confidence in the rulemakers. Like many in the blogosphere, I find that many often have no understanding of new technologies. Neither do I for that matter, but at least I recognize my limitations. Further, in-depth consideration is necessary.

posted by Curmudgeonly Clerk at 12:04 AM

 

Nevada's Folly:

Timothy Sandefur has a great piece today at National Review Online regarding Guinn v. Legislature. Sandefur writes that the Supreme Court of Nevada "declared that 'when a procedural requirement that is general in nature prevents funding for a basic, substantive right,' such as public education, 'the procedure must yield.'" On this specious basis, the court invalidated a constitutional supermajority requirement for raising taxes.

Sandefur cuts to the heart of the matter when he observes that the Court has effectively opened the way to judicial dictatorship:

Most shocking is the Court's dismissal of the 2/3 requirement as "mere procedure." Constitutions are written to create procedural rules: requiring search warrants, or "due process of law" are procedural requirements. Such procedures are important because they protect our rights. Sometimes they are inconvenient or frustrating, but they ensure that government follows clear, predictable rules. If courts can erase procedural rules, then why can't it erase the "simple majority" rule as well? Suppose only 49 percent of the legislators vote for a tax increase. Can the Court order the few holdouts to vote for it, because their votes are "in effect denying the public its expectation" of some taxpayer-funded service?

Sandefur also ably notes the cure for this ridiculous decision: the Nevada Constitution's recall election provision pertaining to state supreme court justices.

ADDENDA:

[1] Professor Volokh, who has characterized Guinn as "one of the most appalling judicial decisions I've ever seen," previously blogged this issue at length here. Timothy Sandefur also previously blogged this issue as well.

[2] Professor Solum has a useful round-up of links pertaining to the Guinn case here.

[3] Professor Volokh notes in multiple posts (here, here, here, and here) that the Guinn case is being challenged in federal court.

[4] Professor Marston has articulated a contrary viewpoint. See here and here.

posted by Curmudgeonly Clerk at 9:45 AM

 

Willkommen und Vielen Dank!

Apropos of my previous post . . . now there are three—three federal law clerk bloggers who blog legal and political issues, that is. Stick Bug Blog, Southern Appeal, and Myself are—much to my surprise—the sole denizens of the this particular niche of the Internet. (Link via Bag and Baggage.)

Also, many thanks to Net.Law.Blog and Balasubramania's Mania for blogrolling this site. Both sites are quite excellent.

posted by Curmudgeonly Clerk at 2:32 AM

 

Omnibus Bill: December 7, 2002—July 11, 2003 R.I.P.

The federal government is apparently in the process of curtailing the bloggers in its ranks. The Blue Blanket Blog is already a shell of its former self thanks to new guidance regarding blogging from the Department of Justice. In anticipation of the Internet crackdown’s spread to other government employers, Omnibus Bill of Crimen Falsi is calling it quits altogether.

I’m sad to see this development. Apart from my personal enjoyment of Bill’s site—see permalink in sidebar—I for one see little harm in blogging by federal employees. Federal employees are like everyone else. They have opinions that frequently diverge from the official views of their employers. Yet almost no one is likely to mistake the two when the former publicly speak on any given matter. Many bloggers, like myself, actually include an express disclaimer to avoid any confusion in this regard. Moreover, the curtailment of blogging by those affiliated with the government is more likely to assure that the views of those familiar with and sympathetic to the government are absent than to achieve any other aim.

I am largely ignorant of First Amendment law in this particular area, so I will leave constitutional commentary to better informed sources. (Care to assist, Professor Volokh?) But my gut instinct and minimal knowledge tells me that the government is almost certainly acting well within its rights here, though its power in this area is probably not absolute. See generally Gerald Gunther & Kathleen M. Sullivan, Constitutional Law 1302 et seq. (13th ed. 1997). And the prudential reasons that government and private employers might wish to prohibit blogging by their employees are not entirely lost on me.

Nonetheless, as a particular type of federal employee, I am sensitive to attempts to squelch blogging. As near as I can tell, blogging generally remains perfectly kosher for federal law clerks. Canon 4 of the Code of Conduct For Judicial Employees seems to be the relevant provision:

Canon 4: IN ENGAGING IN OUTSIDE ACTIVITIES, A JUDICIAL EMPLOYEE SHOULD AVOID THE RISK OF CONFLICT WITH OFFICIAL DUTIES, SHOULD AVOID THE APPEARANCE OF IMPROPRIETY, AND SHOULD COMPLY WITH DISCLOSURE REQUIREMENTS

A. Outside Activities. A judicial employee’s activities outside of official duties should not detract from the dignity of the court, interfere with the performance of official duties, or adversely reflect on the operation and dignity of the court or office the judicial employee serves. Subject to the foregoing standards and the other provisions of this code, a judicial employee may engage in such activities as civic, charitable, religious, professional, educational, cultural, avocational, social, fraternal, and recreational activities, and may speak, write, lecture, and teach. If such outside activities concern the law, the legal system, or the administration of justice, the judicial employee should first consult with the appointing authority to determine whether the proposed activities are consistent with the foregoing standards and other provisions of this code.

As blogging is merely a form of self-publication, it would seem to fall under the “write” rubric of Canon 4A. Other Canons that might be relevant in any given situation via Canon 4A’s incorporation language are Canon 1 (“A Judicial Employee Should Uphold the Integrity and Independence of the Judiciary and of the Judicial Employee’s Office”), Canon 2 (“A Judicial Employee Should Avoid Impropriety and the Appearance of Impropriety in All Activities”), Canon 3D (forbidding public comment on pending and impending actions and disclosure of confidential information obtained via one’s official duties), and Canon 5A (“Partisan Political Activity”). But there does not appear to be any general prohibition of blogging. Indeed, the “write” rubric appears to generally permit blogging by judicial employees. At any rate, the last sentence of Canon 4A indicates that any decision to allow or forbid blogging by judicial employees lies with the individual hiring judges.

In general, I have adopted two general protocols for blogging. First, I do not discuss matters related to proceedings in my employer’s court. Secondly, I also adhere to the additional cautionary measure of blogging on a quasi-anonymous basis. Although I have identified the general court with which I am affiliated, I have kept the details quiet so as to insulate my individual employer from any association whatever with this entirely private enterprise. Hopefully, the Judicial Conference of the United States will consider present measures to be sufficient and decline to follow in the steps of the DOJ.

UPDATE I:

Bag and Baggage has also noted this trend and cursorily weighs in by declaring it "officially Not Good." Meanwhile, Tech Law Advisor points to some very interesting commentary by Jerry Lawson. Lawson offers a nuanced perspective, but I think really makes a compelling case for general openness regarding blogging by those affiliated with the government. Those interested in this topic should read his piece first-hand.

UPDATE II:

Before the virtual ink was even dry on my original post, Balasubramania's Mania had already responded with his thoughts on the matter.

UPDATE III:

I also note that Orin Kerr is taking a leave of absence from The Volokh Conspiracy while clerking for Justice Kennedy over the next year. So does Kerr read the Canons differently? Or does Justice Kennedy personally frown upon blogging during clerkships? Or will Kerr just be too darn busy to blog?

As an update within an update . . . Professor Volokh has clarified that it is customary for Supreme Court clerks to refrain from media involvment during the period of their clerkship. He also views this policy as "quite sensible."

UPDATE IV:

Howard Bashman has also indicated some level of unhappiness with this trend, but has also refrained from opining on the merits.

UPDATE V:

Will Baude has posted some helpful commentary on this topic. In particular, he notes that the First Amendment law in this area is subject to a murky balancing test. He also intimates that the truculent proprietor of this site would be an interesting potential litigant in a test case. I don't necessarly disagree, but if I have my druthers . . . .

UPDATE VI:

Howard Bashman has considered the issue of federal law clerks blogging. Bashman lays heavy emphasis on the last sentence of Canon 4A of the Code of Conduct for Judicial Employees, see supra, which admonishes judicial employees to consult with the appointing authority prior to engaging in the activities countenanced by the Canon when they pertain to "the law, the legal system, or the administration of justice." Therefore, law clerks must obtain approval in order engage in activities that their individual employers are expressly authorized to do via Canon 4A of the Code of Conduct For United States Judges. This seems like a straightforward reading of the Canon regarding judicial employees. But I think that it amounts to a preapproval requirement rather than a general disability; Bashman appears to read it as being more akin to the latter. I agree with Mr. Bashman that merely blogging anonymously is not enough to satisfy the Canon.

Setting aside the terms of the rules, which seem rather clear, I think that the policy question is something of a muddle. I can see both sides, but as a general proposition I tend to favor more rather than less speech. Will Baude, see supra Update V, futher muddies the issue by suggesting that the potential constitutional issue is less than straightforward. Of course, what are the chances that federal courts would invalidate provisions of the Code of Coduct for Judicial Employees that would directly curtail the power of judges to supervise their own staffs?

UPDATE VII:

Donald of All Deliberate Speed, who will be beginning a clerkship soon, plans to cease and desist blogging for the duration. He apparently plans to do so on the basis of my remarks regarding anonymity in my original post. To the extent that he is basing this decision on my remarks, I am afraid that I have been unclear. As noted in Update VI, I do not consider blogging anonymously to be suffcient to satisfy Canon 4A's requirements. Contrariwise, I also do not consider anonymity to be required by Canon 4A. My decision to do so is merely an additional prudential measure to ensure that my judge is in no way associated with this website, which is not in any manner indicative of my employer's personal or professional opinions.

posted by Curmudgeonly Clerk at 1:51 AM

 

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.

posted by Curmudgeonly Clerk at 11:41 PM

 

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.

posted by Curmudgeonly Clerk at 11:05 PM

 

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.

posted by Curmudgeonly Clerk at 1:02 AM

 

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.

posted by Curmudgeonly Clerk at 12:38 AM

 

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.''

posted by Curmudgeonly Clerk at 12:37 AM

 

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.

posted by Curmudgeonly Clerk at 2:49 AM

 

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.).

posted by Curmudgeonly Clerk at 2:38 AM

 

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.

posted by Curmudgeonly Clerk at 2:22 AM

 

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.”).

posted by Curmudgeonly Clerk at 2:20 AM

 

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”).

posted by Curmudgeonly Clerk at 2:20 AM

 

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.

posted by Curmudgeonly Clerk at 2:17 AM

 

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.”)

posted by Curmudgeonly Clerk at 2:10 AM

 

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.)
posted by Curmudgeonly Clerk at 12:45 AM

 

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.)

posted by Curmudgeonly Clerk at 1:20 AM

 

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.

posted by Curmudgeonly Clerk at 9:20 AM

 

Legally Insane?

I have my doubts that this proposed test for legal insanity will catch on in the courts . . .

posted by Curmudgeonly Clerk at 10:11 AM

 

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.

posted by Curmudgeonly Clerk at 9:44 AM

 

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.

posted by Curmudgeonly Clerk at 12:06 AM

 

Grutter v. Bollinger:

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

UPDATE I:

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

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

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

UPDATE II:

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

UPDATE III:

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

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

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

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

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

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

UPDATE IV:

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

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

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

Balkin attempts to lure Buck with the following siren song:

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

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

UPDATE V:

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

UPDATE VI:

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

posted by Curmudgeonly Clerk at 3:44 AM