The Curmudgeonly Clerk

2003-09-14T11:03:00.000-05:00

Forwarding Address:

After much trial and error, I have made the transition over to another host and Movable Type. My new site may be viewed at:

http://www.curmudgeonlyclerk.com/weblog/

No new entries will appear here. However, I will leave this site up a while in order to provide notice of my new address. I have imported/exported all of the entries on this site over to my new digs, so all posts can be viewed there as well.

2003-09-05T14:52:00.000-05:00

Academic Freedom at Indiana University:

You may have noticed that the link to Professor Rasmusen's minimalist weblog (see sidebar) has unexpectedly changed locations. Eugene Volokh points to this Indiana Daily Student article and explains that Indiana University is clearly violating the First Amendment. Dean of the Kelley School of Business Dan Dalton, the administrator responsible for this constitutional infraction, may be e-mailed here. Let him know what you think.

UPDATE I:

Professor Rasmusen is back at his university web address. He explains the situation here.

UPDATE II:

Professor Rasmusen has a lengthier post up on the controversy today. Interestingly, he defends Indiana University's conduct and maintains that the whole story was blown way out of proportion from the very beginning. He writes:

Soon the Dean's Office at my business school was getting lots of complaints about my web-log. The Dean asked me to meet him late on a Thursday afternoon to talk about it. We talked, and I offered to move my web-log off the IU computers, and to keep fairly tight-lipped, until the Dean had time to reflect and to check with the University about whether my web-log was in violation of IU policy. He checked, learned that my web-log did not violate IU policy, and called me back the next day to say that I could move my web-log back, which I did.
The student newspaper got hold of the story, and that (I imagine) alerted the local newspaper, the Associated Press, and a local radio talk show. The blogworld also learned about it. The University didn't actually shut me down, so the story isn't as big as it might have been. I haven't heard of any IU faculty members saying publicly I should be shut down (the student newspaper story "Faculty react to Web log decision" doesn't actually quote any faculty, just staff). If I remember correctly (it's hard because of the volume) I haven't gotten any emails from faculty members saying so (except perhaps one person whose signature said "PhD" but not "Professor"). There are many people calling for me to be shut down, but they are students or staff members. The IU Vice President for Student Development and Diversity wrote a student newspaper op-ed, "A teachable moment for us all," that made the good point that controversies like these are important to teach students the value of free discussion and so forth.

The emphasis is mine. It seems to me that the entire incident was, more or less, a non-story that was created by some apparently inaccurate (and irresponsible) student reporting that maintained that Rasmusen's weblog had been removed at the university's request:

Professor Eric Rasmusen, who teaches multiple courses in the Kelley School of Business, was asked to take his opinions off a University Web page by Kelley School of Business Dean Dan Dalton, Thursday.

There are, of course, people on campus who do very much desire to shut Rasmusen down. However, Dalton is apparently not among them, nor is anyone else within the administration of Indiana University. The university's reputation for academic freedom has been unnecessarily and inaccurately tarred and feathered, and I regret having unwittingly assisted in the process by relaying the bogus charges.

2003-09-05T08:54:00.000-05:00

Hit Parade:

Judge Sam Sparks compiles a periodic newsletter for the District Judges within the Fifth Circuit. It is always informative and entertaining. Among other things, he critiques recent decisions by the Fifth Circuit Court of Appeals He generally bestows "awards" on these decisions—awards that you frequently would not want the distinction of winning.

In the most recent issue, Judge Sparks decided to associate each award with a song and headed to the Internet for inspiration. He reports:

. . . [M]y investigation into sources of songs on the internet provided some interesting moments. One of my first searches yielded a list entitled "Worst Country Song Titles." If I had used any of these titles for an award, I would have lost my credibility—that is, you would not have believed such a song existed. I must share some examples with you . . . .

Judge Sparks then produces this list of memorable ditties:

"How Can I Miss You If You Won't Go Away?"
"How Can You Believe Me When I Say I Love You, When You Know I've Been A Liar All My Life?"
"How Come Your Dog Don't Bite Nobody But Me?"
"I Bought The Shoes That Just Walked Out On Me."
"I Want A Beer as Cold as My Ex-Wife's Heart."
"If You Don't Leave Me, I'll Find Someone Who Will."
"Get Your Tongue Out Of My Mouth, Because I'm Kissing You Goodbye."

Rock n' Roll ain't got nothing on that, I suppose.

2003-09-04T21:34:00.000-05:00

The Night Journey:

Glory be to Him who made His servant go by night from the Sacred Temple to the Farther Temple whose surroundings We have blessed, that We might show him some of Our signs. He alone hears all and observes all.
—Al-Isra' (Qur'an 17:1)

In modern times, this passage of the Qur'an is freighted with political import. The Sacred Temple is in Mecca. According to orthodox Islamic teaching the Farther Temple was located in Jerusalem. Muhammad's night journey to that destination figures in Muslim claims regarding the Judeo-Christian holyland, territory presently within Israel.

Tim Cavanaugh at Reason's Hit & Run points to this very interesting article translated by The Middle East Media Research Institute. In it, a member of the Egyptian Ministry of Culture maintains that the Farther Temple was in Medina rather than Jerusalem. The author, Ahmad Muhammad 'Arafa offers both textual and historical arguments in support of this conclusion. Interestingly, 'Arafa equates the Night Journey with the Hijra, or Flight from Mecca to Medina.

The historical record certainly supports the claim that the Farther Temple was not in Jerusalem. Indeed, it highlights the fact that the Farther Temple, or Al-Aqsa Mosque, was from the very beginning a quasi-political enterprise. Erected approximately sixty years after the death of the Prophet (circa 691-92 A.D.),

The Dome of the Rock, along with its adjoining Aqsa Mosque, constituted the first great religious building complex in the history of Islam. It marked the beginning of a new era. The time for borrowing, for adaptation, for improvisation had passed. The Umayyad caliphate was no longer a successor state of Rome and Persia, but a new universal polity. Islam was no mere successor religion of Christianity, but a new universal dispensation. The place, style, and above all the ornamentation of the Dome of the Rock reveal its purpose. The style and scale were surely intended to rival and outshine the Church of the Holy Sepulchre, with the subtle changes needed for Muslim, not Christian, piety. The place was Jerusalem, the most sacred city on earth to both the predecessor religions, Judaism and Christianity.
The choice is significant. Jerusalem is never mentioned in the Qur'an. Even the name 'Jerusalem' does not figure in early Muslim writings. When the city is mentioned at all—as for example on [Umayyad Caliph] 'Abd al-Malik's milestones—it is called Aelia, the name imposed by the Romans to desacralize the city and to obliterate its Jewish and also Christian associations. The choice of a site in Jerusalem for the first great Islamic shrine is the more remarkable. The site was the Temple Mount, the scene of major events in both Jewish and Christian sacred history. The actual spot was the rock on which, according to rabbinic tradition, Abraham had prepared to sacrifice his son, and on which in later times the Ark of the Temple had rested. This 'Abd al-Malik seemed to be saying, was the shrine of the final dispensation—the new Temple, dedicated to the religion of Abraham, replacing the Temple of Solomon, continuing the revelations vouchsafed to the Jews and Christians and correcting the errors into which they had fallen.
The polemical purpose of the shrine is reinforced by the choice of Qur'anic verses and other inscriptions that decorate the interior. One verse occurs again and again: 'God is one, without partner, without companion.' The rejection of the Christian doctrine of the Trinity is clear, and is made explicit in other inscriptions:
Praise be to God, who begets no son, and has no partner in [his] dominion: nor [needs] he any to protect him from humiliation: yes, magnify him for his greatness and glory!
Another repeated inscription is the famous Sura 112 in its entirety: 'He is God, one, eternal. He does not beget, nor is he begotten, and he has no peer.' Another quotation addresses an explicit warning to the recipients of the previous revelations (Qur'an 4:171):
O people of the book! Commit no excesses in your religion: and say nothing of God but the truth. Jesus Christ, the son of Mary, was indeed an apostle of God . . . Therefore believe in God and his apostles, and do not say 'Three.' Desist, and it will be better for you, for indeed God is one God, exalted above having a son . . .
Yet another inscription emphasizes the warning to the Jews and Christians of the error of their ways (Qur'an 3:18-19):
God bears witness that there is no God but he, and so too the angels, those who possess knowledge, and stand firm in justice. There is no God but he, the omnipotent, the omniscient. God's religion is Islam . . . Let whoever disbelieves in the signs of God beware, for God is swift in reckoning.
The meaning of all this is at once political and religious. Only religion can justify empire. Only empire can sustain religion. Through his apostle Muhammad and his vicegerent the caliph, God has given a new dispensation and a new order to the world. In this first great religious structure dedicated to the new faith, its worldly head, the caliph 'Abd al-Malik asserted Islam's connection with the precursor religions, and at the same time made clear that the new dispensation had come to correct their errors and to supersede them.
* * *
. . . A Qur'anic verse (17:1) tells how God took the Prophet on a journey by night from the sacred mosque (in Mecca) to the farthest mosque (in Arabic, al-Masjid al-Aqsa). One early exegetical tradition places 'the farthest mosque' in heaven; another places it in Jerusalem. The latter of these interpretations came to be universally accepted by Muslims. This verse is not included among the inscriptions in the Dome fo the Rock. A conrtasting tradition, equally early, denied the sanctity of Jerusalem in Islam. According to this tradition, only Mecca and Medina are holy cities, and the veneration of the Temple Mount is a Judaizing error. The argument continued for centuries, and was only settled in comparatively modern times.

Bernard Lewis, The Middle East: A Brief History of the Last 2,000 Years 68-71 (1995).

2003-09-04T20:38:00.000-05:00

Milestone or Meaningless Gesture?

The President signed the Prison Rape Elimination Act into law today. The organization Stop Prison Rape is duly optimistic. (Link via Glenn Reynolds.) I am considerably more pessimistic. But time will tell.

UPDATE:

Grim Amusements provides some additional reason for pessimism. (Link via Ted Barlow at Crooked Timber.)

2003-09-04T17:21:00.000-05:00

Boobs:

Tainted Law drew my attention to this Orlando Sentinel story, first noted by Howard Bashman, which involves an attempt by a bunch of boobs to use the Due Process Clause and Equal Protestion Clause of the Fourteenth Amendment to force the state to allow women to go bare-breasted in public. The Sentinel reports that:

[Jan] Frandsen, 46, her daughter [who is 14] and eight friends, one in her 70s, are suing Brevard County to overturn its antinudity ordinance, as well as two state statutes that ban displaying the female breast in public.
They're not strippers or nudists or thrill seekers. They're just convinced the laws violate their FourteenthAmendment guarantees of due process and equal protection.
"Because of having to cover their breasts in places and at times when men do not cover their breasts," the suit states, "plaintiffs and all other women and girls are afflicted with a badge of second-class citizenship."

Well, they may not be "strippers or nudists or thrill seekers," but they are odd to say the least. The Sentinel also reports that:

The county ordinance was passed, in part, in response to nude sunbathing at Playalinda Beach in the Canaveral National Seashore. That's where Frandsen's husband, Marvin Frandsen, was arrested during a 1995 nude protest of the ordinance.
* * *
Asked whether she expects to win the suit, she said, "If I didn't believe that, I wouldn't be trying. A change has to start somewhere, and this is a very good place to start. Most of us will never give up until the day we die."

People get worked up about the strangest things. Or, rather, strange people get worked up about the strangest things.

Nonetheless, Tainted Law concludes that "they are probably right." I think that he's all wet. And so do the federal courts of appeals. See Ways v. City of Lincoln, 331 F.3d 596, 600 (8th Cir. 2003); Buzzetti v. City of New York, 140 F.3d 134, 141-44 (2d Cir. 1998); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256-57 (5th Cir. 1995); United States v. Biocic, 928 F.2d 112, 114-16 (4th Cir. 1991).

2003-09-04T14:43:00.000-05:00

Formalism as a Solution to the Judicial Logjam:

Professor Solum has a detailed discussion that explores the possible implications of Miguel Estrada's decision to withdraw his name from consideration. He helpfully tailors his exploration around his prior writings on the judicial confirmation wars and includes links to those posts for those who missed them the first time around.

In discussing the apparent transition to active and open consideration of a nominee's political ideology, Solum makes this notable observation:

But here is the thing about ideological selection of judges. If judicial selection is all about political ideology, there is a cost to be paid. Ideological judges are legal realists. They vote on the basis of their political preferences and not on the basis of the law. Ideological judges can be highly skilled in the craft of judging, but this is unlikely. If you see the law as a mere instrument of power, you are unlikely to care enough about the law to spend the long hours required to achieve true mastery of intricate and interconnected web of legal doctrine. Moreover, ideological judges are not likely to possess what I call the judicial virtues. And in particular, ideological judges lack the virtue of justice—the dispositon to decide according to law and to avoid the temptation of using judicial power to remake the law as one wishes it to be.
* * *
Both sides now seem committed to a judicial selection process that concieves of the federal judiciary as the third political branch. Not the least dangersous branch, but the most dangerous branch. The branch that carries out a political agenda with the security of life tenure and the power of final decision about Constitutional questions.

The difficulty, of course, is that in practice the parties fervently believe that the excerpted quotation describes only their opponents and not themselves. Democrats argue that Bill Pryor's nomination, for example, is ideologically motivated and therefore must be blocked; Republicans argue that the Democratic refusal to confirm Pryor is ideologically motivated. In Solum's view, both sides are apparently right.

Having diagnosed the problem thusly, Solum proposes a solution: legal formalism. He argues that:

There is an alternative to the selection of ideological judges whose political orientation reflects the balance of power in and between the Presidency and the Senate. That alternative is to select judges who are legal formalists, who decide the cases before them on the basis of the rules laid down. If political conditions are right, then both parties have good reasons to support the selection of formalist judges. Of course formalist decisions have political implications, but the political tilt of formalist judges is simply a reflection of the political history that leaves its traces on the Constitution, statutes, and precedents that a formalist judge respects and attempts to follow in good faith. And formalist judging produces a very great benefit—the rule of law.

I am not unsympathetic to Solum's case. But I must confess that I wonder about formalism's limits. What happens in those cases in which Solum's neoformalist principles fail to acheive a determinate outcome? It is hard to imagine that they alone might muster anything more than persuasive arguments about the meaning of the phrase "other rights" in Ninth Amendment, for example. Might the content of this provision be inherently political to one degree or another? What then?

2003-09-04T11:23:00.000-05:00

Sanctions Are In Order:

Tainted Law compiles yet more evidence that sanctions are in order in the case involving FOXNews and Al Franken.

UPDATE:

It appears that we are not the only ones to think that FOXNews's conduct warranted sanctions. Tainted Law points to these posts by Roger Ailes, Sterling Silver, and Surreality Check, among others. Silver points out the fact that FOXNews's abandonment of the suit nixes any chance of sanctions under Rule 11. See Fed. R. Civ. P. 11(c). One wonders why Franken's lawyers did not beat FOX to the punch.

2003-09-04T00:27:00.000-05:00

MEChA: In Its Own Words

I previously noted the apparent unwillingness of the left half of the blogosphere to take MEChA seriously. In particular, I noted the Left's seeming failure to examine MEChA's own words. In this post, I propose to let MEChA largely speak for itself via its own official public documents. What follows primarily consists of a series of quotations from the core documents of MEChA, which is interspersed with minimal commentary.

I have drawn my information from two particular MEChA chapters: MEChA de Brown and MEChA de Yale. I have relied on these sites because, unlike many other MEChA-related locations on the web, these two appear to be fairly up-to-date. I have viewed numerous such websites, however, and I have found the content on the two aforementioned sites to be representative of those MEChA chapters affiliated with the national organization.

[Note: MEChA de Brown posts the documents referenced below on its own site. Mecha de Yale does the same, with the exception of the National Constitution, to which it simply links.]

I. Introduction
MEChA is an acronym for “Movimiento Estudiantil Chicano de Aztlan,” which the MEChA de Brown website translates as “Chicano Student Movement of Aztlan.” “Aztlan,” according to a document entitled “Purpose of MEChA” on the same site, corresponds to “the legendary birthplace of the Aztecs, which reputedly is today’s [American] Southwest.” The preamble of MEChA’s National Constitution succinctly sets forth the organization’s mission:

Chicano and Chicana students of Aztlán must take upon themselves the responsibilities to promote Chicanismo within the community, politicizing our Raza with an emphasis on indigenous consciousness to continue the struggle for the self-determination of the Chicano people for the purpose of liberating Aztlán.

II. MEChA’s Documented Ideology
There are at least three documents that are critical to an understanding of how MEChA views itself as an organization: (1) the National Constitution; (2) El Plan de Santa Barbara; and (3) El Plan Espiritual de Aztlan. The National Constitution is central to an understanding of MEChA for obvious reasons: as with our national and state equivalents, it establishes the framework within which its various regional and local political units function; it is the governing organizational document.

We know that the two “Plans” referenced are also primary documents because the National Constitution tells us as much. See Nat’l Const. art. III, § 24A (requiring all MEChA chapters to “[o]rient all members by discussing and reading historical documents of our Movimiento including: El Plan de Santa Barbara, El Plan Espiritual de Aztlan, and the MEChA Position Papers of Philosophy, Constitutions, Relationship to Outside Organizations, and Goals & Objectives” in order to be recognized by the governing regional MEChA entity).

El Plan de Santa Barbara dates from the founding of MEChA sometime around 1969. It is clear, however, that its tenets remain bedrock principles of the modern MEChA, as the National Constitution that provides for its study was first adopted in 1995 (and amended in 1996 and 1997). I have not found a date certain for the promulgation of El Plan Espiritual de Aztlan.

A. El Plan de Santa Barbara
The Plan de Santa Barbara is a fairly long document. It is highly rhetorical and does not lend itself to critical analysis due to a lack of substantial content. Taken as a whole, it advocates a noxious strain of identity politics.

It is clear enough that race and/or ethnicity is the basis of MEChA’s politics, but membership is not a genetic birthright. Being Hispanic or Latino would appear to be a necessary but not a sufficient condition of membership. Consider the following:

Commitment to the struggle for Chicano liberation is the operative definition of the ideology used here. Chicanismo involves a crucial distinction in political consciousness between a Mexican American (or Hispanic) and a Chicano mentality. The Mexican American or Hispanic is a person who lacks self-respect and pride in one's ethnic and cultural background. Thus, the Chicano acts with confidence and with a range of alternatives in the political world. He is capable of developing and effective ideology through action. Mexican Americans (or Hispanics) must be viewed as potential Chicanos. Chicanismo is flexible enough to relate to the varying levels of consciousness within La Raza. Regional variations must always be kept in mind as well as the different levels of development, composition, maturity, achievement, and experience in political action.

The now-familiar brand of racialism evidenced in the foregoing passage is also apparent in a passage discussing potentially sympathetic university administrators of Hispanic or Latino ancestry:

This a delicate area since administrators are most interested in not jeopardizing their positions and often will try to act as buffers or liaison between the administration and the student group. In the case of Chicano administrators, it should not [a] priori be assumed, he/she must be given the chance to prove his/her allegiance to La Causa. As such, he/she should be the Chicano's person in the power structure instead of the administration's Mexican-American.

A passage devoted to minority hiring echoes this notion of racial authenticity:

The jobs created by these projects must be filled by competent Chicanos, not only the Chicano who has the traditional credentials required for the position, but one who has the credentials of the Raza. To often in the past the dedicated pushed for a program only to have a vendido sharp-talker come in and take over and start working for his Anglo administrator.

The word vendido appears to be related to the Spanish verb vendedor, which may mean “to sell” or “to betray.” When used reflexively, the verb vendedor connotes “selling out to the enemy.” In other words, the foregoing passage effectively identifies Hispanics and Latinos who fail to adopt the proper politics as “race traitors.”

MEChA does allow for temporary “political coalitions and alliances with non-Chicano groups” when advantageous. However, there can be no association with the aforementioned vendidos. Given MEChA’s underlying “struggle for liberation in [a] society where justice is but a word”:

. . . [I]t becomes essential that each member pull his load and that no one be allowed to be dead weight. Carga floja is dangerous, and if not brought up to par, it must be cut loose.

But even its allowance for alliances of convenience notwithstanding, MEChA is essentially separatist in nature, decrying:

. . . this melting pot society, which seeks to dilute varied cultures into a gray upon gray pseudo-culture of technology and materialism.

The reference to “materialism” is not accidental either. El Plan de Santa Barbara is also explicitly communist in orientation and links capitalism with Anglos. It states:

The ethic of profit and competition, of greed and intolerance, which the Anglo society offers must be replaced by our ancestral communalism and love for beauty and justice.

B. El Plan Espiritual de Aztlan
The Plan Espiritual appears to translate the foregoing principles into a militant plan of action. The Plan offers an ahistorical counterrevolutionary version of Manifest Destiny for Chicanos:

In the spirit of a new people that is conscious not only of its proud historical heritage but also of the brutal "gringo" invasion of our territories, we, the Chicano, Mexican, Latino, Indigenous inhabitants and civilizers of the northern land of Aztlan from whence came our forefathers reclaiming the land of their birth and consecrating the determination of our people of the sun, declare that the call of our sangre [blood] is our power, our responsibility, and our inevitable destiny.

It explicitly states that Aztlan does not belong “to the foreign Europeans” and declares MEChA’s refusal to “recognize capricious frontiers on the Bronze continent.” And then, following these remarks, the Plan goes further still, uttering those infamous words:

. . . . [W]e declare the independence of our mestizo nation. We are a bronze people with a bronze culture. Before the world, before all of North America, before all our brothers in the bronze continent, we are a nation, we are a union of free pueblos, we are Aztlan. Por La Raza todo. Fuera de La Raza nada.

Given this context, it is rather difficult to accept the translations of “Por La Raza todo. Fuera de La Raza nada” proffered by Joanne Jacobs or Mark Kleiman (who, in turn, relies on Mickey Kaus). In Jacobs’s case, if “people” were intended the writers would have likely used gente rather than raza in just about any context. But in this context it is unmistakably clear that the “people” the writers had in mind were members of the Chicano "raza" (i.e., generally right-thinking Hispanics or Latinos in the MEChA worldview). The would-be Kaus-Kleiman translations (“By means of the Race, everything. Outside the Race, nothing.” or “On behalf of the Race, everything. Outside the Race, nothing.”) are equally misplaced when the words are viewed in context. Frankly, these weirdly non-textual variants of the obvious contextual translation (“For the Race: everything. Outside of the Race: nothing.”) leads one to wonder if any of the three aforementioned persons bothered to research or read the text before opining on its meaning.

The Plan follows this rhetoric up with an ambiguous call for political independence:

Once we are committed to the idea and philosophy of El Plan de Aztlan, we can only conclude that social, economic, cultural, and political independence is the only road to total liberation from oppression, exploitation, and racism. Our struggle then must be for the control of our barrios, campos, pueblos, lands, our economy, our culture, and our political life.

Although this language need not be read as irredentist in nature, even this concession is hardly reassuring given the racially identified and racially exclusive nature of the MEChA’s politics. Moreover, it is not clear that El Plan Espiritual is not overtly separatist. As previously noted, the document states that the land does not belong to the “foreign Europeans.” Similarly, in a portion devoted to the “economy,” which also echoes El Plan de Santa Barbara’s communism, the Plan states that:

[E]conomic control of our lives and our communities can only come about by driving the exploiter out of our communities, our pueblos, and our lands and by controlling and developing our own talents, sweat, and resources. Cultural background and values which ignore materialism and embrace humanism will contribute to the act of cooperative buying and the distribution of resources and production to sustain an economic base for healthy growth and development. Lands rightfully ours will be fought for and defended. Land and realty ownership will be acquired by the community for the people's welfare. Economic ties of responsibility must be secured by nationalism and the Chicano defense units.

The plan of action announced in the Plan Espiritual also expressly purports to be revolutionary in character. For example, if admonishes Chicanos to:

“. . . insure that our writers, poets, musicians, and artists produce literature and art that is appealing to our people and relates to our revolutionary culture. Our cultural values of life, family, and home will serve as a powerful weapon to defeat the gringo dollar value system and encourage the process of love and brotherhood.

It also includes this revolutionary gem:

For the very young there will no longer be acts of juvenile delinquency, but revolutionary acts.

C. Philosophy of MEChA
MEChA de Brown’s website also contains a less common (but not uncommon) document entitled “Philosophy of MEChA.” This document is of unstated origin and vintage, but may be the MEChA position paper on philosophy that is referenced in Article III, § 24A of the National Constitution. It is ostensibly less threatening than either El Plan Espiritual de Aztlan or El Plan de Santa Barbara, however it appears to reflect the core tenets announced in the two plans.

Interestingly, it purports that MEChA is an inclusive movement:

We recognize that no one is born politically Chicana or Chicano. Chicanismo results from a decision based on a political consciousness for our Raza, to dedicate oneself to building a Chicana/Chicano Nation. Chicanismo is a concept that integrates self-awareness with cultural identity, a necessary step in developing political consciousness. Therefore the term Chicano is grounded in a philosophy, not a nationality. Chicanismo does not exclude anyone, rather it includes those who acknowledge and work toward the betterment of La Raza. Chicanismo involves a personal decision to reject assimilation and work towards the preservation of our cultural heritage.
Recognizing that all people are potential Chicanas and Chicanos, we encourage those interested in developing a total commitment to our movement for self-determination for the people of Aztlán to join Movimiento Estudiantil Chicano de Aztlán. . . .

It is difficult, however, to reconcile this purported inclusiveness with the tenets announced in MEChA’s other documents. One wonders how MEChAistas would reconcile the apparent conflicts. One also wonders whether anyone outside of a distinct subset of the Hispanic or Latino population would be inclined to take advantage of the advertised inclusiveness. (As an aside, the group photos from various university chapters that I have viewed online are uniformly “Hispanic” or “Latino,” as those terms are commonly understood.)

III. Conclusion
The foregoing is a mere thumbnail sketch of the organization MEChA. Its ideology seems relatively clear in outline. Whatever failure of clarity there is in the details is attributable to the organizational documents’ propensity for rhetoric over substance. No doubt the actual conduct of the various chapters is relevant as well. In some sense, actions do speak louder than words, as the cliché goes. But it seems strange to excuse grown adults from the moral burdens that attend associations voluntarily undertaken. It seems stranger still that a aspirant for the highest office in one of the states cannot bring himself to unequivocally dissociate himself from both this organization and its ideology.

2003-09-03T16:40:00.000-05:00

Taking MEChA Seriously:

One of the things that I have noticed about the debate centering over Cruz Bustamante's past association with MEChA and his present refusal to dissociate himself therefrom is the seeming inability of some to take MEChA seriously, to take MEChA's own representations about the content of its beliefs to heart.

Ted Barlow's bizarrely reasoned post is a prime example, for all of the reasons set forth by Juan Non-Volokh and Pejman Yousefzadeh. But even stranger is Barlow's apparent endorsement of this argument culled from the comments to one of Kevin Drum's posts:

Why won’t Bustamante make a statement against separatism or fascism or racism? First of all, it hasn’t been exactly established that this is a MEChA stance. I read the Juan Non-Volokh piece, and in his fisking of Barlow, he also made one mistake that I noticed immediately. He linked to the Berkeley MEChA website, which links to that Aztlan plan that everyone is quoting. However, and there probably is no way Non-Volokh could have known this, Berkeley MEChA is actually not the official MEChA of Berkeley—they split off from the regular MEChA. The regular MEChA branch, however, doesn’t have a website. The Berkeley MEChA is decidedly more radical. You can check out the Office of Student Life listing of student groups and see that there are two MEChA’s listed (this website is for last semester, neither MEChA has registered for the Fall yet). What this says to me is that each MEChA branch is likely to have its own statement of purpose, so someone needs to investigate the branch that Bustamante actually belonged to before they demand that he renounce anything.

The problem with this argument is that, whatever the case may be at Berkeley, some minimal Internet research establishes that El Plan Espiritual de Aztlan and other fairly radical documents can be found on the webpages of many MEChA chapters across the United States: for example: Brown, Georgetown, Stanford, University of Chicago, University of Texas at Austin, and the University of Wisconsin at Madison. All of these pages appear to be somewhat dated, however, four of them (Brown, Chicago, Georgetown, and Wisconsin) include the text of the MEChA national constitution and therefore constituted the "mainstream" chapter of their organization on campus at one point in time.

In short, El Plan Espiritual de Aztlan is not merely associated with radical splinter cells or groups that are on the fringe of the MEChA. It is prominently advertised by chapters of the national organization. Given this fact, aren't honest people required to read this (and other) document(s) and let them speak for themselves rather than denying their relevance?

UPDATE I:

On closer inspection, Brown's MEChA website actually appears to be fairly up-to-date.

UPDATE II:

I have followed up the observation above with a far more detailed examination of MEChA's beliefs here.

2003-09-02T19:25:00.000-05:00

Rape As A Capital Crime:

Ken Lammers brought this very interesting story to my attention. The Associated Press, by way of CourtTV reports that:

A man convicted of raping his 8-year-old stepdaughter received the death penalty Tuesday in what could be the state's first death sentence for a crime other than murder.
The man, whose identity was being withheld to protect the victim, was convicted of aggravated rape Monday and jurors sentenced him to death after nearly two hours of deliberations.
Under a 1995 Louisiana law, the death penalty can be sought for aggravated rape if the victim is under the age of 12. The other penalty is a mandatory sentence of life in prison without parole.
In 1977, the U.S. Supreme Court ruled it was unconstitutional to sentence someone to death who had not committed a murder. Since then, no one in the state has been sentenced to death for a crime other than murder, said Nick Trenticosta, a New Orleans attorney who has handled numerous death row appeals.

The 1977 Supreme Court case referenced is Coker v. Georgia, 433 U.S. 584 (1977), in which the Court ruled in a 7-2 decision that imposition of the death penalty for the crime of rape constitutes a violation of the Eighth Amendment.

Lammers offers no view of the merits of the Louisiana law. I consider it to be an overly modest step in the right direction. The Supreme Court should revisit Coker and overrule it.

One might reasonably conclude that we ought not to have a death penalty whatsoever. But I am hard-pressed to comprehend the position that (a) we ought to have a death penalty, but (b) rape is not a sufficiently terrible crime to merit its imposition. Statistically, rape outside of the prison environment is doubtless predominately a male-on-female crime. And the decision in Coker reflects little more than insufficient sensitivity to the plight of this terrible crime's female victims.

Consider the Coker Court's recitation of the facts, for example:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from the Ware Correctional Institution near Waycross, Ga., on September 2, 1974. At approximately 11 o'clock that night, petitioner entered the house of Allen and Elnita Carver through an unlocked kitchen door. Threatening the couple with a 'board,' he tied up Mr. Carver in the bathroom, obtained a knife from the kitchen, and took Mr. Carver's money and the keys to the family car. Brandishing the knife and saying 'you know what's going to happen to you if you try anything, don't you,' Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.

Coker, 433 U.S. at 587 (emphasis added).

Having summarily concluded that Mrs. Carver was little or no worse for the wear, the Court then proceeded to hold that:

We have concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.

Id. at 592.

Regarding the severity of the offense, the Court does offer this bland acknowledgment:

We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the 'ultimate violation of self.' It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well.

Id. at 537-38.

But then the Court discards these observations and concludes in the very next paragraph that:

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability,' Gregg v. Georgia, 428 U.S. at 187, 96 S.Ct. at 2931, is an excessive penalty for the rapist who, as such, does not take human life.

Id. at 598 (emphasis added).

What the Court gives with one hand, it takes away with the other. And it did not give much to begin with. The Court's clinical ode to the "personal integrity and autonomy" of victims and their "privilege of choosing with whom intimate relationships are to be established" is, in a word, ridiculous. As if one's right to be free from forcible sexual contact is a mere privilege. See Black's Law Dictionary 1215 (7th ed. 1999) (defining "privilege" as "[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty").

The opinion's actual text is contemptible. But its apparent implications are even worse. A critical, but not entirely unfair, paraphrase might consist of: "C'mon honey, absent a real beating, you're not even hurt. So quit pouting, wipe that semen off your leg, and get on with your slightly less happy existence." The only way the Court's opinion could be more demeaning is if it contained a lengthy description of Elnita Carver's "alluring attire."

Then Chief Justice Burger (joined by then Associate Justice Rehnquist) was quick to point out these shortcomings in dissent. Burger begins by setting out a more satisfactory recitation of the facts:

On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively rather than concurrently. Approximately 1 1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm. It is this crime for which the sentence now under review was imposed.

Id. at 605 (Burger, C.J., dissenting).

Accordingly, the dissenters would have addressed a far narrower question than the Court chose to reach, namely:

Does the Eighth Amendment's ban against cruel and unusual punishment prohibit the State of Georgia from executing a person who has, within the space of three years, raped three separate women, killing one and attempting to kill another, who is serving prison terms exceeding his probable lifetime and who has not hesitated to escape confinement at the first available opportunity?

Id. at 607 (Burger, C.J., dissenting); cf. id. at 601 ("The plurality, however, does not limit its holding to the case before us or to similar cases. Rather, in an opinion that ranges well beyond what is necessary, it holds that capital punishment always regardless of the circumstances is a disproportionate penalty for the crime of rape.") (Powell, J., concurring in the judgment in part and dissenting in part).

The dissenters also made plain that their factual recitation was not rendered so as to prejudice the reader or as a clarion call to retribution:

Surely recidivism, especially the repeated commission of heinous crimes, is a factor which may properly be weighed as an aggravating circumstance, permitting the imposition of a punishment more severe than for one isolated offense. For example, as a matter of national policy, Congress has expressed its will that a person who has committed two felonies will suffer enhanced punishment for a third one . . . . As a factual matter, the plurality opinion is correct in stating that Coker's 'prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life'; however, it cannot be disputed that the existence of these prior convictions makes Coker a substantially more serious menace to society than a first-time offender:
'There is a widely held view that those who present the strongest case for severe measures of incapacitation are not murderers as a group (their offenses often are situational) but rather those who have repeatedly engaged in violent, combative behavior. A well-demonstrated propensity for life-endangering behavior is thought to provide a more solid basis for infliction of the most severe measures of incapacitation than does the fortuity of a single homicidal incident.' Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1080 (1964).
In my view, the Eighth Amendment does not prevent the State from taking an individual's 'well-demonstrated propensity for life-endangering behavior' into account in devising punitive measures which will prevent inflicting further harm upon innocent victims.

Id. at 608-10 (Burger, C.J., dissenting) (some internal citation omitted).

However, faced with the Court's very broad holding, the dissent proceeds to address its chief premise head-on, albeit in a kinder fashion than the Court's holding deserves:

The plurality acknowledges the gross nature of the crime of rape. A rapist not only violates a victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. The longrange effect upon the victim's life and health is likely to be irreparable; it is impossible to measure the harm which results. Volumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims. Rape is not a mere physical attack it is destructive of the human personality. The remainder of the victim's life may be gravely affected, and this in turn may have a serious detrimental effect upon her husband and any children she may have. I therefore wholly agree with Mr. Justice WHITE's conclusion as far as it goes that '(s)hort of homicide, (rape) is the 'ultimate violation of self." Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are 'unharmed,' or to classify the human outrage of rape, as does Mr. Justice POWELL, in terms of 'excessively brutal,' versus 'moderately brutal,' takes too little account of the profound suffering the crime imposes upon the victims and their loved ones. Despite its strong condemnation of rape, the Court reaches the inexplicable conclusion that 'the death penalty . . . is an excessive penalty' for the perpetrator of this heinous offense. This, the Court holds, is true even though in Georgia the death penalty may be imposed only where the rape is coupled with one or more aggravating circumstances.

Id. at 612-13 (Burger, C.J., dissenting) (internal citations omitted).

The Chief Justice also accurately notes that the Court's distinction between rape and murder rests upon a sort of twisted neo-Hammurabian logic that conceptualizes capital punishment solely in terms of societal vengeance:

The subjective judgment that the death penalty is simply disproportionate to the crime of rape is even more disturbing than the 'objective' analysis discussed supra. The plurality's conclusion on this point is based upon the bare fact that murder necessarily results in the physical death of the victim, while rape does not. However, no Member of the Court explains why this distinction has relevance, much less constitutional significance. It is, after all, not irrational nor constitutionally impermissible for a legislature to make the penalty more severe than the criminal act it punishes in the hope it would deter wrongdoing: 'We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.' It begs the question to state, as does the plurality opinion: 'Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair.' Until now, the issue under the Eighth Amendment has not been the state of any particular victim after the crime, but rather whether the punishment imposed is grossly disproportionate to the evil committed by the perpetrator. As a matter of constitutional principle, that test cannot have the primitive simplicity of 'life for life, eye for eye, tooth for tooth.'

Id. at 619-20 (Burger, C.J., dissenting) (internal citations omitted).

Although I would take a very broad approach and consider rape a capital crime even, perhaps, in the absence of aggravating circumstances, the Louisiana case that began this discourse would hardly require so broad a rule. In light of the fractured line-up in Coker, reconsideration may be promising. The Court's full opinion was supported by a mere plurality. Two additional Justices (Brennan and Marshall) adhered to the now moribund position that the death penalty is unconstitutional under any circumstances. A third Justice (Powell) concurred in the result, but thought that rapes accompanied by more egregious circumstances might qualify for the death penalty. And two Justices (Burger and Rehnquist) dissented. As with so many things, the passage of nearly thirty years might reveal that Rehnquist's views have prevailed.

UPDATE:

Will Baude has pointed out that he and Amanda Butler have tackled the Louisiana case before. Baude supports the Louisiana law, but goes on to disagree with my admittedly aggressive claim that Louisiana's law is "an overly modest step in the right direction" for some very good reasons:

The first is the nature of proof. Murder trials nearly always require one to produce an actual body, so that the only question at issue is "who did it?" and certain amounts of evidence are gathered of a largely physical nature, and so on. Eyewitness testimony can be very unreliable but can often get across the basic details. The trouble with many rape cases is that the determining facts are mistier. Since it's always illegal to kill people (barring a few exception circumstances) it's usually enough to establish that A killed B and there weren't any major countervailing circumstances. But since many, even most, sex is extremely legal it's not enough to establish that A had sex with B, one also has to establish that B did not consent, that A reasonably should have known B did not consent, and so on. Since people who have sex so rarely ask for clear consent, the issue can get messy. Dahlia Lithwick pointed out in Slate how steep penalties in rape can be troubling given the small quantities of proof that make a difference, in those cases, between life and death.
The second issue is the issue of selective prosecution. My understanding (those who know should correct me if I'm wrong) is that rapes are generally underprosecuted. If this is so, the idea of having prosecutors decide who basically gets off and who gets a death penalty pursued against them might bother a lot of citizens. I'm not saying these issues aren't present in capital trials, I'm sure they are, but I think it wouldn't be completely misguided to think that these issues would be more problematic in the case of certain kinds of rape, especially date-rape.

These are not silly objections and might rightly temper one's enthusiasm for the broader approach that I advocated. However, one wonders . . . . Let us say that we have a case of "date-rape"—a term that trivializes the crime of rape by implying that those who manage to arrange a social outing and then force sexual contact upon their companion are somehow less culpable than a stranger might be—that is not, in Powell's callous terminology, "excessively brutal." And let's further suppose that a hidden camera captured the crime and leaves no doubt that the sex involved was non-consensual.

Does Baude envision such a case as being eligible for the death penalty? And, if not, isn't he really saying that rape per se is not egregious enough to merit the death penalty absent other circumstances? In other words, isn't Baude, more or less, arguing Justice Powell's position? That is, although he writes of rape's heinous toll with more sympathy than the Coker Court or Powell did, I think that Baude effectively reaches Powell's conclusion: rape alone is insufficient. This position strikes me as being incompatible with the position that rape can be "a fate worse than death," to borrow Baude's wording, unless one believes that rape is only "a fate worse than death" when it is accompanied by aggaravating circumstances.

I simply do not believe that a person need be beaten mercilessly in addition to being raped in order for it to result in irreparable harm. And, although rape may be especially devastating for children whose personalities are in formation and are therefore particularly fragile, the psychological harms associated with rape are probably not that much reduced for adults.

2003-09-02T14:26:00.000-05:00

The Almighty Oath:

In commenting on the trials and tribulations of Justice Moore, attorney J. Craig Williams writes:

This morning's CNN Headline News featured an email comment from someone commenting on Judge Moore's stand that asked the question whether the act of swearing on the bible before you give testimony will be yanked out of court, too. (By the way, it's already gone—and you don't swear "so help me God" anymore.) Courts have consistently required the separation of religous symbols from government-related activities. There are legions of cases where nativity scenes have been removed from city parks, as required by Courts interpreting the First Amendment.

Although it does not surprise me that California state courts and federal courts within the Ninth Circuit might have abandoned the acknowledgment of God in the taking of in-court oaths, see Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2003), this practice is far from universal. In my particular division of the Southern District of Texas, God continues to be invoked in the administration of oaths. Witnesses, sworn en masse prior to trial, are administered the following oath:

You, and each of you, do solemnly swear that the testimony you will give in the case now before the court shall be the truth, the whole truth, and nothing but the truth, so help you God?

Similarly, the oaths required of grand jurors, court reporters, veniremen, jurors, and translators/interpreters in the Southern District of Texas also contain the clause "so help you God."

Interestingly, the oath for newly admitted attorneys laid out in Local Rule 83.1 of the Southern District omits any mention of God in its text. However, the version of the oath for newly admitted attorneys provided to me by one of the deputy clerks of court contains the phrase "So help me God." Cf. Fed. R. App. P. 46 (omitting mention of God); U.S. Sup. Ct. R. 5 (same).

Federal law clerks are also sworn in upon assuming their duties. The oath to be administed is laid out in an official form of the United States government, AO 78A (1/00), which states:

I [insert name], do solemnly swear (or affirm) that—I will support and defend the constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

The law clerk's oath bears a striking resemblance to the oath sworn by members of the armed forces, see 10 U.S.C. § 502, which also explictly references God. The clerk's oath may be amended by the clerk so as to strike out the reference to God and the word "swear," if the party wishes to affirm the oath rather than swear to it. But such an election must expressly be made and the "So help me God" language must literally be stricken out. This oath is apparently mandated by 5 U.S.C. § 3331. Cf. 28 U.S.C. § 951 (oath for federal clerks of court, which also contains "[s]o help me God").

Justices of the United States and the judges of the lower federal courts swear an otherwise dissimilar oath upon confirmation to the bench, but their oath likewise invokes God:

I, [insert name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [insert position] under the Constitution and laws of the United States. So help me God.

28 U.S.C. § 453.

In contrast, the presidential oath, which is fixed in the Constitution, see U.S. Const. art. II, § 1, cl. 7, omits any reference to the Almighty.

Although I am less familiar with Texas state courts, I suspect that they explicitly reference God in court-related oaths as well. After all, the oath sworn by all lawyers admitted to the State Bar of Texas reads:

I [insert name] do solemnly swear that I will support the constitution of the United States, and of this State; that I will honestly demean myself in the practice of the law, and will discharge my duties to my client to the best of my ability. So help me God."

However, I cannot be certain about this without conducting further research. Although the above language is the exact text that was mailed to me by the Clerk of the Supreme Court of Texas upon passage of the State Bar Exam, the statute that governs the lawyer's oath by no means requires any religious content. See Tex. Gov't Code § 82.037 (omitting any mention of God). The mention of God, however, does not seem to be out of keeping with Texas custom. For example, the state constitution requires all elected and appointed officials to take an oath that includes the phrase "[s]o help me God." Tex. Const. art. 16, § 1(a).

Of course, none of this bears upon the constitutional propriety (or lack thereof) of statutes and customs that include references to God—except, perhaps, to the extent that longstanding practice might reflect constitutionality. But whatever the case, it is wrong as a descriptive matter to contend that God has been banished altogether from the judiciary or judicial proceedings.

The Almighty Update:

J. Craig Williams over at May It Please The Court has posted an update, noting that even in California the "so help me God" oath may appear in court:

It turns out that California Code of Civil Procedure section 2094 has two optional oaths, subsections (1) and (2). The first contains the "So help you God" language, the second does not.

In addition, Timothy Sandefur has written that the federal oaths enumerated above that include language like "so help me God" are illegal, citing the third clause of U.S. Const. art. VI. This provision reads:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

It is not clear to me that all such federal oaths that reference God would run afoul of this provision. For example, the law clerk's oath allows one to opt out of such language. If one can do likewise for the other federal oaths, then they might not run afoul of Article VI either.

However, even without such limitations, it is not altogether clear that the prohibition of religious tests, whatever might be encompassed therein, covers references to divine beings in oaths, which may be little more than a blandishment. Some certainly take a more limited view of the governmental conduct proscribed by Article VI. See, e.g., Stephen B. Pressler, Some Realism About Atheism: Responses to the Godless Constitution, 1 Tex. Rev. L. & Politics 87, 98-99 (1997) (reviewing Isaac Kramnick & R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness (1996)). Even by Sandefur's recitation, the Supreme Court has yet to address this issue. See Torcaso v. Watkins, 367 U.S. 488, 489 n.1 (1961).

Having evinced these preliminary skeptical leanings, I concede that I have concentrated little thought on the matter (let alone research) and could be entirely wrong. My initial post was really focused on actual practice more than the constitutional propriety of these practices. But based on the admittedly little that I know, I am not inclined to place this issue beyond the bounds of reasonable debate just yet.

Of course, none of this gainsays cases like Torcaso that invalidate enforcement of certain oaths on Establishment Clause grounds. However, the oath at issue in Torcaso was not even arguably a blandishment; it expressly required one to affirm one's belief in God and there was no exemption. Id. at 489. The Court's holding reflects this fact:

We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

Id. at 495.

Accordingly, I am not so sure that Torcaso is dispositive regarding the foregoing federal oaths. But, again, I am hardly an expert in this area and would welcome further information.

2003-08-29T16:29:00.000-05:00

For Shame:

The Sandman takes punditry to a new low (or high, as the case may be).

2003-08-29T09:40:00.000-05:00

More Commentary on Comments:

Last week, I commented on the merits of comment features on blogs. Like Will Baude and the folks over at Begging to Differ, I am deeply skeptical of the supposed benefits of comments. And now we all have yet another reason to add to our list of problems with comments: SPAM. I too have noticed this phenomenon on other blogs. I was reading a blog entry the other day, and lodged in the comments was a bit of completely off-topic non-commercial spam: a lawyer-activist had posted a lengthy political announcement having nothing to do with anything.

A reader wrote in after my original post on this topic with some objections thereto. He suggested, among other things, that: (a) comments are more like conversation than formal writing and that I was therefore subjecting them to standards that are inappropriate and/or inapplicable; (b) such conversations are a public service inasmuch as they potentially serve an educational function (i.e., readers may share and distribute their knowledge to others). Said reader also opined that my previous post is sneeringly elitist and that poor grammar and writing are not necessarily indicative of stupidity. He also thought my musings verged on being insulting.

At the outset, I would like to note that I do not think that there is any "right" answer as to whether to include a comment feature in a weblog. It is, more or less, a matter of personal preference. I posted my original entry on this topic in response to another blogger, who wondered if, maybe, there was something "wrong" with those who choose not to include comments on their site. I think not. And I listed a series of interrelated reasons why I personally would not choose to add a comment feature. Like many things written by lawyers, my remarks were rather qualified in nature, so I am hard-pressed to comprehend the heated nature of my correspondent's response.

Personally, I am not persuaded by my correspondent's arguments. His "public service" argument is viable to the extent that comments are actually informative. Although some comments can be so described, I do not think that most fall into this category. For example, blog posts generally feature links to original sources and/or citations; comments, on the other hand, seldom feature these details. But I have to concede that my sense that comments tend to be unhelpful is not based on formal empirical study. It is just an observation from one who spends a great deal of time in the blogosphere. Reasonable people could draw other conclusions.

My correspondent is right in likening comments to conversation. However, I do not think that this strengthens the case for comments by any means. Like conversations, comments have a tendency to drift. As a result, lengthy (and sometimes even not-so-lengthy) comment streams tend to run far off-course from the original topic in ways that aren't particularly helpful or informative. Weblogs that are primarily devoted to politics provide frequent examples of this sort of thing. Steven Den Beste once had a comment feature and abandoned it due, in part, to such drift.

I also do not think that overly conversational English makes for good reading outside of the context of, say, well-written fiction. Colloquial speech tends to be even worse in weblog comments, where standards of grammar and usage are often not above those of a Yahoo chatroom. By way of explanation, Den Beste linked to this comment thread when he put the kibosh on his own comment forum. This site needs a thread filled with sentence fragments and emoticons like it needs a midi of Stairway to Heaven playing in the background.

My correspondent is right that poor writing is not necessarily indicative of stupidity. Moreover, even well-written commentary can be woefully wrongheaded. Maureen Dowd, for example, has a Pulitzer Prize, but seems incapable of making an argument in the fashion of adults.

However, high-quality writing really is a prerequisite in the blogosphere (and in the real world). It is just a question of opportunity costs. Like all professionals, my plate is overflowing. Lawyers do not suffer from lack of work. So we have to be selective in what we choose to read. I personally am not going to read a poorly written blog any more than I am going to read a poorly written book. I just do not have the time to waste. (I believe that Eugene Volokh has pithily blogged on this general topic in connection with his book on academic legal writing) So, perhaps, you can see why I find "conversational" comments to be equally devoid of merit. If I am generally disinclined to read comments elsewhere, I am all the more disinclined to host them (at my own expense, I might add) on this site.

In addition, poor writing is also counterproductive. If the purpose of writing is to convey ideas, to inform, or to influence, then a poorly written argument or explanation is less valuable than a well-written one. It seems to me that my correspondent more or less concedes the lesser quality of the average comment, but regards my judgment as elitist. His e-mail actually referred to my supposed "sneering elitism." "Elitism" is defined as:

1: leadership or rule by an elite 2: the selectivity of the elite; esp: SNOBBERY . . . .

Merriam-Webster's Collegiate Dictionary 374 (10th ed. 2001).

I think accusations of elitism, sneering or otherwise, are misplaced. We evaluate arguments all the time. Recognition that some are better than others in form, content, or style is not the equivalent of elitism any more than distribution of grades for written work on the basis of such factors constitutes snobbery in academic settings. My decision not to host an unmediated comment feature is a form of content and quality control, but I do not think that it can be characterized as snobbery.

This really gets at the heart of the issue for me. Note what is being argued here. I concede that decisions to include a comment feature or not are matters of preference. In two fairly lengthy posts, I have attempted to demonstrate that my personal preference is a reasoned one. In the past, before I ever addressed this issue, CalPundit intimated that such decisions might be political in nature. Jivha suggested that folks like myself could be narcissists. And my correspondent has stated that I am an elitest. I am arguing that my choice is a valid, rationale one, but allow that others might reasonably choose to include comments on their blogs. Others seem to be suggesting not just that my arguments are mistaken, but that there is something indefensibly "wrong" with my decision in a greater sense. They essentially characterize my decision in terms of incorrect politics, personality disorder, or character defect. I think that's a bit much.

2003-08-28T22:21:00.000-05:00

Many Thanks:

Traffic has been higher than average this week, and I have many folks to thank for this fact.

May It Please The Court and Politics & Law both blogrolled this site. Similarly, Professor Eric Rasmusen has been kind enough to list The Curmudgeonly Clerk among a select number of blawgs. Thanks so much.

Comrade of the Curmudgeon Will Baude was guestblogging over at Overlawyered and sent some readers this way. And, speaking of Baude, over at Crescat Sententia Professor Randy Barnett was kind enough to mention The Curmudgeonly Clerk as a blawg that he enjoyed on occasion. It is always flattering when legal luminaries find this blog worthwhile. Pejman Yousefzadah quoted Barnett's praise and sent some folks in this direction as well.

My remarks about Proposition 12 also stirred the pot a bit. Some shameless self-promotion on my part landed a link from former Corner-ite Rod Dreher over at the Dallas Morning News's very innovative editorial blog. To my knowledge, the DMN is the only newspaper that presently has an organizational blog. Byron L. of Burnt Orange Report, which features a fantastic set of Texas-related links, has blogged on Proposition 12 once again and is blogging about the other Texas ballot measures as well. Half The Sins of Mankind also posted a follow-up on Proposition 12, and offers some further thoughts here. Tainted Law has entered the fray as well. And last but certainly not least, William Dyer has posted a very intriguing take explaining why he will most likely be voting for Proposition 12.

I'd also like to appraise folks of the fact that the very interesting Infidelworld: An American Expatriate's Opinions About American and Asian Culture and News has relocated to fresh digs.

Finally, as usual, I would like to thank those who have written in. If I have not replied yet, it is only because I have been unusually busy at work of late. Your feedback is genuinely appreciated.

Any errors of omission are purely the result of inattention, not ingratitude. Feel free to e-mail me if you have recently linked to this site and I have somehow overlooked this fact. Thanks again, everyone.

2003-08-26T19:48:00.000-05:00

Proposition 12 in Texas:

A statewide "election" is scheduled for September 13, 2003 here in Texas. No major offices will be up for grabs. Instead, it consists of a referendum on several state constitutional amendments. Among those proposals on the table is Proposition 12, an amendment that would alter the Texas constitution so as to allow the legislature to statutorily cap non-economic damages (i.e., non-compensatory damages) in civil suits. Proponents of the measure argue that out-of-control medical malpractice costs that drive away doctors require the measure's passage. The amendment's detractors accurately note that the proposal would give the state legislature a free hand to limit damages in all civil matters, not just healthcare-related suits.

Over the past month or so, I have received two separate mailings from Save Texas Courts, the principal, but not the sole, organization that opposes the amendment. Interestingly, the S.T.C.'s mailouts are signed by two Republican former members of the Supreme Court of Texas. Texans Against Prop 12's tally of organizations against the proposed amendment leans heavily to the left, but the president of the conservative Texas Eagle Forum is also opposed to the ballot measure. Obviously, support and criticism of this tort reform initiative is not entirely breaking down along traditional lines.

The chief pro-amendment organization, Yes On 12 also has a presence on the web, and its site appears to focus exclusively on the healthcare issue. The site does not address the salient argument that the proposed amendment's language empowers the state legislature to cap non-economic damages in all civil suits. Nor does the site even contain the language of the proposed constitutional emendation. (The actual language may be found here.) Although Yes On 12's site currently lists no organizational endorsements, the measure undoubtedly has its supporters: the Texas Health Care Association, Texas Hospital Association, Texas Medical Association, among others.

Although the anti-amendment forces are championing their cause in the name of the common man's access to the courts and claim to be fighting the monolithic forces of "big insurance and big money," their campaign is bankrolled by well-heeled plaintiffs' lawyers and is apparently out-fundraising the measure's proponents. Of course, at least voters know who is bankrolling the anti-amendment effort. Advocates of the proposed emendation have actually designed their fundraising apparatus so as to shield the identity of contributors. Whatever the merits of the amendment and its ultimate effect on average Texans, clearly big lobbies are involved on both sides of the issue.

Even the reality of the problem is disputed. In testimony before the United States Senate Committee on Health, Education, Labor, and Pensions, the Texas Commissioner of Insurance recounted the medical malpractice-related woes ostensibly facing doctors and patients in the Lone Star State. However, opponents of tort reform, relying, in part, on data compiled by the Texas State Board of Medical Examiners, regard such assessments as being chimerical. Accordingly, it is difficult to know where the truth lies in this matter.

However, setting aside the competing diagnoses of what ails Texas, I am inclined to think that Proposition 12 is overly broad in the remedy that it prescribes. Assuming without deciding that Yes On 12 et al. are correct in their assessment regarding existence of a medical malpractice crisis, its causes, its effects, and even its solution, why propose such a radical cure? That is, why amend the Texas Constitution so as to grant the legislature power to limit non-economic damages in all areas of the law rather than in healthcare litigation alone? This particular aspect of the recommended treatment strikes me as being analogous to unnecessary surgery.

TEXAS ROUNDUP:

Texans in the blogosphere appear to be divided on the merits of Proposition 12. Yeas: GruntDoc, Off The Deep End 2, RangelMD, and TexasGOP. Nays: Mike at Begging to Differ, Burnt Orange Report, DepoMan, Half The Sins Of Mankind, and The Sake of Argument. Fence-sitters exist as well, such as Magnifisyncopathological.

Meanwhile, some of the major metropolitan newspapers have weighed in and they are also divided on the issue. Newspapers for: Austin American-Statesman and San Antonio Express-News. Newspapers against: Dallas Morning News, Fort Worth Star-Telegram, and Houston Chronicle.

SECOND ROUNDUP:

Byron L. of Burnt Orange Report has posted a rejoinder to some of the aformentioned bloggers who have come out in support of Proposition 12. Half The Sins of Mankind also takes another crack at the issue. Tainted Law too has something to say about the measure. All three are very critical of Proposition 12.

For a more supportive view of Proposition 12, head over to BeldarBlog, where William Dyer makes an intriguing case in support of the ballot measure. Dyer's post is typically thoughtful. (Have you been reading BeldarBlog? Why not?!?) His perspective is, I think, unique. And, for those interested in Proposition 12, Dyer's remarks are must-reading.

2003-08-25T15:12:00.000-05:00

Sex and Sentencing:

CNN has an Associated Press report posted online about a municipal judge who was offering to reduce criminal sentences of female defendants in exchange for sexual favors. The story notes that:

[Erstwhile Municipal Judge Charles] Maestas, who could have received more than 50 years in prison, was convicted of rape and bribery. Six jurors later claimed they had not meant to convict Maestas of rape, but [Judge] Vigil denied the former judge's request for a mistrial.
Prosecutor Julie Ann Meade characterized Maestas as a "serial rapist" who victimized vulnerable women who appeared in his court. "He used the very fact that he was a judge as his weapon to commit this crime," she said.
* * *
Maestas, a former police officer, probation officer and judge, probably will serve most of his sentence in solitary confinement.
Vigil sentenced Maestas to nine years in prison, with six years suspended. He could be eligible for parole in 18 months.

In a previous post, I had noted a case involving sexual misconduct between a lawyer and her criminal client. At the time I cited an article on the topic of lawyer-client sexual relations, Christian F. Southwick, Ardor and Advocacy: Attorney-Client Sexual Relations and the Regulatory Impulse in Texas and Across the Nation, 44 S. Tex. L. Rev. 307 (2002), that covers the topic in a thorough fashion. In addition, that particular article also has a brief bit on judicial sexual impropriety. See id. at 414 & nn. 575-77. Footnote 577 lists, among other cases, In re Boylan, 744 A.2d 158 (N.J. 2000) (per curiam), in which a former municipal court judge was disbarred for a federal criminal conviction related to his practice of reducing traffic fines in exchange for sexual favors.

It is interesting, indeed eyebrow-raising, that The Dishonorable Charles Maestas was actually convicted of rape for his misconduct. I have not researched New Mexico's rape law, nor does the story provide much in the way of details. It is clear, however, that, in order for a rape conviction to have resulted, more than a mere offer must have taken place. One wonders what the exact circumstances were. Philosophically and legally could a mere offer of a quid pro quo or even an accepted and consumated offer constitute rape? One wonders. Maestas's lawyer plans to appeal.

UPDATE:

Via a Google search, I managed to locate some additional information about the Maestas case.

The Charges
A press release from the New Mexico Attorney General's office clarifies that Maestas was indicted on 28 counts: "eight counts of Criminal Sexual Penetration; two counts of Criminal Sexual Contact; nine counts of Extortion; eight counts of Official Acts Prohibited; and one count of Stalking." But the press release offers no factual details beyond the general allegation that "Maestas allegedly promised reduced sentences or the elimination of charges in return for sexual favors from women who appeared before him in his court."

CourtTV has a report from mid-June that does lay out a substantial amount of detail regarding the factual underpinnings of the case against Maestas. The allegations against the municipal judge included the following:

Charles Maestas, a "citizen" judge who handled misdemeanor cases like parking tickets, is accused of using his authority to coerce at least four women into sexual liaisons.
Suzetta Salazar, 33, the only victim who admits to having intercourse with Maestas, has provided prosecutors with audiotapes of a conversation in which the judge allegedly promised to reduce her citations if she would have sex with him. She also audiotaped one of their trysts.

CourtTV also detailed Maestas's defense:

Maestas' lawyer, Stephen Aarons, acknowledges that his client had sex with the women but denies that the physical relationships were related to his judicial powers.
"It's not illegal to have sex," he told Court TV.
* * *
Aarons said he plans to show that the four women—Salazar, Mary Martinez, Francesca Ortiz and Cheryl Sida—colluded to bring charges against the judge and are hoping to cash in with a huge settlement in a separate civil lawsuit.

The factual allegations advanced in the civil suits (and that presumably form part of the basis for the criminal charges as well) are quite disturbing. For example, one plaintiff alleges that the judge and three guards serially raped her while she was serving a 90-day sentence for driving under the influence.

The Jury Verdict
A July 31, 2003 story in the Albuquerque Journal provides some very interesting details regarding the jury's verdict in the case. To wit:

[The jury] convicted Maestas of 10 charges June 19: five counts of criminal sexual penetration, or rape, and five counts of "official acts prohibited," which loosely means accepting or offering a bribe. He was acquitted on 18 other charges.

However, the same story reports that half of the jury has since indicated that they did not intend to convict Maestas of rape:

Half the jury that convicted former Española Municipal Judge Charles Maestas has now renounced its verdict of guilty on rape charges, court records show.
* * *
It's not a matter of them feeling bad, Maestas' defense lawyer argues, but one of confusion over jury forms that a 12-member Rio Arriba County jury dealt with June 19.
* * *
"Now we are faced with a situation, unique in New Mexico jurisprudence, not of a jury impeaching an ill-advised verdict but of correcting the verdict forms to reflect their actual deliberations and unanimous verdict," attorney Stephen Aarons wrote in papers filed Monday with state District Judge Michael Vigil.

Having sentenced Maestas on those counts today, the defense attorney's motion was obviously not granted. Most likely this is the basis of his planned appeal.

The Sentencing Hearing
An Albuquerque Television Channel, KRQE, also reports on the Maestas case, but its report is likewise devoid of legally relevant factual details. It does, however, provide a little more detail on the sentencing hearing itself.

A Similar Texas Case
An article in the Santa Fe New Mexican that discusses the alleged juror confusion over the verdict form in some detail also brought to my attention a similar case from the Lone Star State:

Although rare, a case of a city judge involved in sexual misconduct is not unprecedented. In March, Mercedes, Texas, Municipal Judge Ernesto Flores Jr., was sentenced to two years in federal prison for civil-rights violations stemming from his plea.
According to a statement released by the U.S. Department of Justice, “the former judge admitted he had coerced two women in May 1999 and July 2001, respectively, to engage in sexual acts with him in exchange for reducing bonds of their family members.”
Unlike Maestas, Flores was not charged in state court with rape, but rather under a federal charge of violating the women’s civil rights. There is no indication that similar federal criminal charges are being sought against Maestas.
* * *
Martha Minnis, an assistant U.S. attorney in Houston who helped prosecute the Flores case, said cases of sexual misconduct, especially among small-town judges, might be more common than people think.

The Flores case does not appear to be available on Westlaw.

2003-08-25T01:08:00.000-05:00

An Interesting New Blawg:

California lawyer J. Craig Williams has written to inform me about his new blawg, and I thought I would pass this development along to my modest readership as well. What is really interesting about his blawg, May It Please The Court, is that it is hosted right along with The Williams Law Firm, PC website. Although I cannot be certain, this appears to be a first: a weblog directly associated with a law firm that does not have any sort of impersonal institutional voice. Thus far, Williams is doing all the posting. However, the site also features The Honorable William W. Bedworth's wonderfully funny columns as a special feature. It remains to be seen if other members of the Williams Firm will be posting as well.

2003-08-23T12:49:00.000-05:00

Commentary on Comments:

In his helpful weekly roundup of things being said in the blogosphere, V. Balasubramani points to this post on blogging and comments (or the lack thereof) by Jivha—The Tongue.

The main thrust of Jivha's musings seems to be that bloggers, at least the big names in blogging, who do not have a comment feature must be narcissists. To wit:

Since I don’t know any of the people who don’t have comments personally, I cannot hazard a guess on their personality traits. But I’m guessing that Narcissistic behaviour might be one of the reasons why some bloggers are not open to comments.

To be sure, Jivha does actually list several other reasons why a blogger might not wish to have a comments feature, which he concedes might be legitimate motivating factors as well. But he also leaves the charge of "personality disorder" lingering. (Note: Jivha's post is interesting and worth reading in its entirety, so do not settle for my characterization of it. Read it for yourself.)

This is not the first time that I have seen this topic bandied about in the blogosphere. Back in early June, Calpundit had a post on this that presented the issue in terms of politics. The thesis was that left-leaning blogs were far more comment-friendly than right-leaning ones. This proposition was then subjected to debate, both in Calpundit's comments section and elsewhere.

Personally, I do not have a comments feature because I am a cheapskate. My understanding is that the free versions of Blogger and/or Blog*Spot simply will not support a comments feature. (I could be wrong about this; I have never thoroughly explored the issue.)

But even if it were possible to install a comments feature, I would not do so. Being a reader of many blogs with comments, I cannot say that I find anything useful about them as a general rule. Those who comment frequently seem to be emotionally and/or intellectually stunted and armed with a poor sense of style, grammar, spelling, and punctuation. Even when comment sections are not so afflicted, they are often littered with detritus. Consider this thoughtful comment to one of Calpundit's posts: "Mmmmmm . . . . sausage."

Am I painting with an overly broad brush? Yes, somewhat. But I think that if you simply look through enough comment sections, you will find that there is some validity to my point. Moreover, even when there is nothing particularly objectionable about comments, they are seldom terribly insightful. I think this is because those who comment simply tend to write off the cuff, without deliberation; whereas, the better bloggers actually put some thought into their posts.

Jivha finds the lack of comments unpalatable for a very understandable reason:

One of the main reasons why my interest in blogging has more or less sustained itself since February (that’s when I started) is because of the intellectual stimulation I derive from interacting with other bloggers. And the main chunk of that interaction comes from either commenting on blogs/posts that interest me, or reading/replying to comments that people post on my blog.

This is also what has sustained me. Apart from providing an outlet for writing about my particular legal interests, other knowledgable bloggers and blog-readers keep me honest and point out things that I otherwise might not have considered. I appreciate all of the feedback that I receive, both on other blogs and via e-mail. I enjoy thoughtful personal correspondence and frequently feature my readers' thoughts and comments in follow-up posts or updates. (Traffic and e-mail volume are light enough in these parts for me to operate in this manner.)

But I doubt that adding a comment feature would add much in this regard. Indeed, it would detract from my blogging, because then I would have to play "comments cop" on a regular basis and police up off-topic and inappropriate matter, rather than writing substantive posts. (As a federal law clerk who is bound by the Code of Conduct For Judicial Employees, the content of this site is, perhaps, a more central concern for me than it might be for other bloggers.)

I do not consider any of these rationales for excluding comments to be reflective of a personality disorder or to be part and parcel of my politics. I suspect that what makes this weblog worthwhile is my relative expertise as a lawyer by training and my relatively unique voice and point-of-view. Although my site is not a particularly popular Internet destination—the only time that I receive real traffic is when a bigger blogger links to one of my posts—I assume that my small, but loyal cadre of readers exists because they find my commentary interesting and useful.

Obviously, there is a lot of emphasis on me in the preceding paragraph. But my thoughts are the heart of this blog after all. And that's true of all blogs, even those with comments. So if this a narcissist makes, then we bloggers are all engaged in a fairly narcissistic enterprise.

Finally, I do not think that the narcissism thesis makes much sense in terms of how the blogosphere actually functions. The definitions quoted by Jivha make it clear that narcissists cannot tolerate criticism. But to operate a blog is to subject oneself and one's arguments to nearly illimitable scrutiny, counter-argument, and criticism. Anyone can start up a blog at no cost (as I did) and then link to and criticize anyone else's posts. Tools like Technorati make it almost impossible for such criticism to go unnoticed by others. InstaPundit, for example, may not have a comments feature, but the entire blogosphere effectively serves as one. (Have you ever noticed how much Professor Reynolds is criticized?) The blogosphere is not a refuge for the thin-skinned among us.

2003-08-22T20:11:00.000-05:00

Sanctions?

Professor Volokh reports that FOX News Channel's suit against Al Franken has effectively been dismissed. The Honorable Denny Chin's summation of the lawsuit was, to use a word that Bill O'Reilly favors, pithy:

"There are hard cases and there are easy cases," the judge said. "This is an easy case. This case is wholly without merit, both factually and legally."

Judge Chin merely denied Fox's request for an injunction today, but, as the Associated Press story notes, today's ruling paves the way for dismissal. Given the judge's rather unequivocal language, one wonders if we can expect Franken's inevitable motion to dismiss to be accompanied by a motion for sanctions as per Fed. R. Civ. P. 11(b)(2)-(3), (c).

UPDATE:

Ernie the Attorney, whose take is posted over at Blogcritics.org, lends some further credence to the possibility of sanctions:

I didn't see the briefs so I can't comment on that, but I did read the complaint that was filed in state court and I can say it was, not only devoid of legal merit, but also highly unprofessional. I invite you to read the complaint, in particular the allegations in paragraph 77. It is obvious, to me at least, that this lawsuit was brought because of the documented disputes between Franken and Bill O'Reilly. . . .

(Link via InstaPundit.)

2003-08-21T14:59:00.000-05:00

Good and Evil:

Professor Yin has passed along precisely the sort of Internet hokum that I thought I could use to my advantage: The Gematriculator. In short:

The Gematriculator is a service that uses the infallible methods of Gematria developed by Mr. Ivan Panin to determine how good or evil a web site or a text passage is.

According to the Gematriculator's penetrating analysis of my weblog, I am 76% good and a mere 24% evil. I am not going to names any names, but that is considerably better than some. (Blawgrollees, repent!)

Apropos my recent struggles with the Code of Federal Regulations, I ran the text of 20 C.F.R. § 416.927 through the Gematriculator, which readily confirmed that its drafters are also less virtuous than me.

Ah, the pastimes of a clerk who ate too heavy a lunch . . .

2003-08-20T23:39:00.000-05:00

Comprehending the Incomprehensible:

Unfortunately, I remain at the mercy of the Code of Federal Regulations. Meanwhile, the ever-knowledgable Timothy Sandefur supplemented Judge Hines's observations on the Social Security Act with those of one my favorite jurists, Judge Friendly:

As program after program has evolved, there has developed a degree of complexity in the Social Security Act and particularly the regulations which makes them almost unintelligible to the uninitiated. There should be no such form of reference as "45 C.F.R. s 248.3(c)(1)(ii)(B)(2)" discussed below; a draftsman who has gotten himself into a position requiring anything like this should make a fresh start. Such unintelligibility is doubly unfortunate in the case of a statute dealing with the rights of poor people. An indispensable service is performed by attorneys like those representing the plaintiffs here, who advance tenable claims with clarity and courtesy even if, as in this case, not with success.

Friedman v. Berger, 547 F.2d 724, 727 n.7 (2d Cir. 1976), cert. denied, 430 U.S. 984 (1977).

Of course, the government does not have a monopoly on circumlocution. Consider these specimens from academia, as reported in The National Post:

[From the biography of a Canadian film-maker:] "We can see a socio-sexual parallel between the geography of the wilderness and the topographies of narrative in this genre, which organizes a particular spatial itinerary and social anatomy."
* * *
[From a book about poetry:] "It is the moment of non-construction, disclosing the absentation of actuality from the concept in part through its invitation to emphasize, in reading, the helplessness—rather than the will to power—of its fall into conceptuality."
* * *
Mass culture now attracts the most bizarre theorizing. When moviemakers changed James Bond's brand of vodka, Aaron Jaffe of the University of Louisville wrote that this "carries a metaphorical chain of deterritorialized signifiers, repackaged up and down a paradigmatic axis of associations."
* * *
[From the book Empire:] "In the logic of colonialist representations, the construction of a separate colonized other and the segregation of identity and alterity turns out paradoxically to be at once absolute and extremely intimate."

(Saw the Post article on Arts & Letters Daily.)

Even the C.F.R. is not that bad. One must be grateful for small favors in life, I suppose.

2003-08-19T22:40:00.000-05:00

The Day The Blog Stood Still:

As you might have noticed, there has been no posting today. Who is to blame for this national tragedy? The Commissioner of Social Security. Well, actually, Jo Anne B. Barnhart isn't responsible in the most literal sense. But her agency's regulations are giving your intrepid clerk a dickens of a time. As United States Magistrate Judge Earl S. Hines once put it:

One is hard-pressed to imagine a more abstruse set of rules than those embodied in the Social Security Act, its voluminous implementing regulations, and multitudinous and constantly-evolving policy interpretations found in Social Security Rulings.

Welsh v. Barnhart, No. 1:01-CV-220, 2002 WL 32073076, at *6 (E.D. Tex. Dec. 23, 2002).

With any luck, yours truly will shortly be back in action.

2003-08-18T21:54:00.000-05:00

Send in the Clowns:

Let's get this straight.

One candidate (out of 135) in the recall has past associations with an organization that thinks that California rightfully belongs to another country.

A plethora of candidates have even more in common with whores than the average sitting member of Congress. One is a porn starlet who promises to use adult film stars as ambassadors of good will for the state if elected. But a porn actress as candidate is fitting. If management can get into the game, why not labor? And she's hardly the sole self-promoting tart in the race. This particular breed of candidate is so commonplace that they are barely distinguishable from one another. And yet this genre of candidate somehow allowed itself to be outmaneuvered by a novitiate who is offering a signature thong for sale as a method of filling her campaign coffers.

Add to this parade of horribles a candidate who has a haircut that screams "unfit for public appearance," let alone public office. (Query: Has anyone seen this candidate and Lenny Kravitz's drummer simultaneouly apart?) Nor is this aspiring politician the only "bad hair candidate" to materialize.

And, of course, more than one has-been actor has entered the race, one of whom has hired another B-list actor who played a political operative in a television series to perform a similar role in real life.

What's frightening is that the two top-tier candidates are included among the aforementioned electoral undesirables.

Current Governor and political pariah Gray Davis has characterized the recall situation as a dangerous carnival. I can understand the temptation to link the recall to carnivals: both feature an inordinate number of (scary) clowns. However, on balance, I think that Davis's characterization is insulting—inasmuch as it is an affront to the comparative quiet dignity of hard-working carnies. That's the scale of the grotesquery that is the California recall.

Serious commentary and links to important stories on the recall can be found on Professor Hasen's wonderful site. But I have to admit that I personally won't be getting my recall news and opinion at that venue. Instead, I will be tuning in to The Daily Show and reading The Onion. At this point, parody news sources seem more fitting.

[Note: Some links liberally borrowed from Life, Law, Libido.]

2003-08-15T16:28:00.000-05:00

Don't Link This—Or Else!
(Or Else What?)

Eugene Volokh and Steve "X" of Begging to Differ are having some fun at the expense of these halfwits over said halfwits' permission-only Internet linking policy.

I have previously discussed such policies in another context. Amazingly enough, the Pennridge School District is not alone. Professor Sorkin of The John Marshall Law School once maintained a site devoted to tracking such linking policies. And Sorkin's former site is not filled with clueless school districts either.

2003-08-14T20:32:00.000-05:00

Copynorms: The Continuing Debate

Professor Weatherall, an Australian academic who calls Melbourne University Law School home, was kind enough to point to my recent attempt to contribute to the debate over copynorms. Intellectual property and information technology are Weatherall's areas of interest and expertise, so anyone interested in these issues should head over there and take a look. The professor's site closely follows these issues and has multiple posts on the subject.

My prior post generated some interesting mail from two thoughtful readers that is well worth considering. I excerpt and comment on each below.

Copynorms and the Rule of Law
Reader A wrote in to suggest that my concern that lack of respect for copyright might erode respect for the law in general is misplaced. To wit:

Laws must reflect actual human behavior or they don't work. You cannot enforce a law in a country of 300 million unless at least 99%+ will obey. By the time voluntary compliance is down to 95% it is hopeless. 90% is a joke. At 80% compliance no one cares.
Now figure there are 60 million file traders. What [are] you gonna do?

One can quibble with the numbers, of course. The recent Pew Internet & American Life Project data states that "35 million U.S. adults download music files online," of which "26 million share files online." But, of course, these figures pertain solely to adults, which does not capture the full pool of file-sharers by any means. Nor do Pew's figures extend beyond the United States's borders. Of course even Pew's lesser numbers would run afoul of Reader A's precepts. And, even if one rejects the percentages suggested, I think Reader A has a fairly intriguing point in concept.

One potential theoretical problem with the notion of "voluntary compliance" is the nature of "voluntariness." Consider taxes, for example. I gather that most people do pay their taxes each year without much fuss. That is, the government does not have to compel us in the most literal sense of the word. But surely few are paying taxes voluntarily. We pay because the Internal Revenue Service will do exceedingly unpleasant things to us if we do not. (Note to readers who are gladhearted about paying taxes: simply change the hypothetical to include a governmental requirement less to your liking.) Law is compulsion.

Although the RIAA is taking a broad approach right now by suing individual file-sharers, it has no doubt occurred to it that it cannot sue all 26+ million Americans who do so. The costs are too great. What the RIAA presumably aims to do is make an example of some folks and thereby create a legal (and financial) disincentive for disregarding copyrights. If successful, it seems to me that the RIAA will have achieved the very same form of "voluntary" compliance that ensures that the I.R.S. hears from us each April 15.

Now some laws we voluntarily comply with in a truer sense. For example, most would decline to murder their neighbors for their wallets even if the law did not prohibit it. (Of course, if we would do what the law dictates on our own anyway, are we really "complying" or does our behavior just coincide with the law?) The thought fills typical members of society with moral disgust.

But for far more morally ambiguous matters or matters utterly lacking in moral content, the law and the penalties for violating the law are precisely why we comply. For example, each morning I get in my car to go to work. Although I would decline to travel at increasingly excessive speeds at some point out of self-interest and concern for others, the only thing that keeps me less than 10 miles over the limit each morning is the patrolmen who will otherwise fine me. The potential sanction does not keep me or most others at the precise speed limit, but it does shape our behavior behind the wheel and keeps traffic flowing along smoothly enough. Might the RIAA be aiming for the same result in copyright?

Of course, none of this suggests that the RIAA will be successful. It's grasp may well exceed its reach. Reshaping the existing copynorms may simply be a bridge too far. As Reader A also suggested, the technology involved in recording and distributing music may have changed so dramatically that the RIAA's efforts are futile, inasmuch as the music industry's business model purportedly no longer makes sense. But I am not certain that its business model need make any sense if copyright law remains unchanged and courts go on enforcing it. The existing state of the law could easily safeguard an otherwise economically unviable enterprise. (Programs that require government subsides come to mind.) And the sanctions that file-sharers face may well deter.

Copynorms and Technological Parallels
Although I have indicated some level of moral discomfort with the prevailing copynorms, people in general do not seem to consider file-sharering as being a morally culpable act. Apart from my concern regarding the potentially corrosive effect of our copynorms on respect for the law generally, I have previously equated file-sharing with theft and drawn parallels between tangible property and the intellectual variety. Even those who also consider file-sharing wrong in some moral sense generally reject my property parallel. For example, Professor Solum writes that he:

. . . believe[s] that illegal music downloading is wrong; a virtuous citizen obeys the laws even when she disagrees with their correctness—except in extreme cases.

But however unvirtuous file-sharing might be under present circumstances, Solum does not regard it as theft:

But the norms against unauthorized copying of music have broken down, or maybe they never existed in the first place. Again, why? One source of the breakdown is the manifest legality of similar copying. After the Supreme Court's decision in the Betamax case, most lawyers and certainly most lay people believe that copying television programs for personal use is legal. The Audio Home Recording Act includes a provision that makes analogy copying of music recordings virtually legal; you cannot be sued for making an analog compilation tape of copyrighted music.
And the average music downloader understands that if you shoplift or steal a CD, you deprive the owner of the use of the CD. But copying an MP3 files does not have the same effect. Economists would describe this difference using the concept of rival versus nonrival consumption. The social norm against theft of tangible property is supported by widespread understanding of the purpose of law's against theft. But the general public does not seem to have a similar grasp of the underlying rationale for copyright laws.

Solum has expressed this same distinction between tangible and intangible property before:

. . . . I think that part of the industry's problem is that file sharing is not like theft. Everyone understands that consumption of intellectual property is not "rivalrous" in the economic sense. When I copy an MP3 file, I don't preclude you from copying or listening to the your own version of the work (whether on CD, record, MP3, or reel-to-reel tape), but when I steal your car, I preclude your use of the resource. That's why social attitudes towards filesharing are different than social attitudes towards shoplifting CDs. The case for intellectual property rests on a more complicated story about incentives.

I think this distinction between tangible and intellectual property has real explanatory power in terms of how people think about the issue. I am less certain that this is how people ought to think about the file-sharing, however.

At any rate, Betamax got me thinking about how VHS technology is similar and not so similar to file-sharing. VHS copying strikes me as an apt parallel with a single exception: scope. Armed with a mere VHS and some tapes, an individual could do only so much damage. The costs of tapes and reproduction time inhibited gratuitous copying and distribution. But the potential ability of a single file-sharer to share MP3 files over the internet is several orders of magnitude greater. File-sharers may distribute innumerable copies and without the production time and costs associated with prior technologies.

Nonetheless, it is clear that drawing parallels between file-sharing and other technologies might help explain why copynorms are what they are. So the question is: What technologies seem close enogh to be instructive? And is there a parallel technology that also posseses the same scope as file-sharing?

In my previous post on this matter, I referenced libraries. I wrote:

Of course, a similar argument might be made regarding books. After all, if I were to check out a book from the library, reproduce it in .pdf, and make it freely available over the Internet, I also would not have precluded anyone from the use of the work.

This musing provoked the following response from Reader B:

Your library example brings up, to my mind, the best argument that the RIAA's agressive take on file sharing is out of line. A library buys one copy of a book and then lets others use it for free. That's basically what file sharing is: someone buys a copy of a song and lets others use it for free. Same if I lend my copy of the Wall Street Journal to you. You have gotten the IP for free, through someone who originally acquired it by paying a fee. And obviously, the creator/owner of the IP would prefer that each user/consumer purchased a new copy, but that's not the law or any reasonable interpretation of it.
File sharing technology obviously makes it possible to lend out a piece of IP to many users, but how is it, except in scope, different from what a library does? . . .

Now it may well not be different in any fashion other than scope. But perhaps scope is enough. After the all, with the increased scope comes far different financial implications for the owner of the intellectual property. I do not think that calls for the RIAA et al. to come to terms with the new technological realities are entirely misplaced. But by the same token, perhaps, the law ought to come to terms with it as well. Perhaps, the scope problem renders all otherwise similar technologies distinguishable?

My discussion of this issue with Reader B led me to pose another technological parallel: the photocopier. During my undergraduate years, many of my professors liked to issue bundled packets of articles, book excerpts, etc. of works authored by others. Notwithstanding the fact that we were not getting any fancy packaging (i.e., it was just photocopies of the originals), these packets were quite expensive—due to copyrights. And they always had a copyright notice on them and declared that it would be against the law for us students to buy one copy and then photocopy them at next to no expense for others, notwithstanding our ability to do so. Is file-sharing more akin to this forbidden photocopying than the library analogy I attempted? It certainly replicates the "multiple-copies-derived-from-one-purchased copy" aspect of file-sharing. And it may come closer in terms of scope.

Reader B's response was apt enough:

I think your copy machine analogy is better than the library, but still isn't satisfactory. It does get at one aspect of file sharing that's a problem—people can sell/give their licensed version to someone else without having to give up their own copy (unlike the library). But you didn't see publishers and authors suing Xerox for making copiers available, did you? Same thing with VCRs.

Reader B's point has merit. Though, of course, his remarks do not address the liability of those doing the copying. In this regard, Denise Howell pointed out this very interesting case: Lowrey's Reports, Inc. v. Legg Mason, Inc., Civil No. WDQ-01-3898, 2003 WL 21635302 (N.D. Md. July 10, 2003). In this case, copyright infringement liability actually resulted, in part, from distributing photocopies of copyrighted material. The maker of the photocopier was not sued, but the persons who did the copying were liable. Perhaps, the only reason less litigation regarding photocopying of copyrighted material has taken place or been threatened—if indeed that is the case—has to do with problems of detection rather than a differing copynorm. If so, what does that say about file-sharing?

UPDATE:

Denise Howell has subsequently linked to a newsletter called Legal Bytes compiled by one of her coworkers at Reed Smith. In the current issue of the newsletter, attorney Joe Rosenbaum discusses Lowrey's Reports, Inc. and offers some interesting background. Among the more interesting details is this bit:

Years ago, in American Geophysical Union v. Texaco, Inc., a similar controversy over the use of scientific publications erupted and the parties stipulated facts to present a test case to the court: Was the photocopying of eight scholarly articles from separate issues of the same trade journal by a Texaco research scientist “fair use” under the Copyright Act? Before the case settled, the court concluded such photocopying by corporate researchers for their own files was archival, not fair use and violated copyright laws. Although some archival copying can be fair use, institutional, systemic copying to make them available to scientists, avoiding the purchase of additional subscriptions is not.
And don’t be misled by quantity versus quality. In 1993, a Florida court held a bulletin board owner liable for copyright infringement when subscribers uploaded and downloaded pictures from Playboy Magazine. Defendants argued portions from each magazine were insubstantial compared to the total and should be entitled to fair use protection. The court noted even a small amount of copying is not fair use if the portions copied are “essential.” The court was certainly not implying “people do not read the articles,” but the pictures were obviously central to the magazine’s importance.

2003-08-13T21:47:00.000-05:00

A Fellow Curmudgeon:

In the process of meting out a truly humbling amount of praise to yours truly, Houston lawyer William Dyer, a relatively new blogger, reflects on his own clerkship experience with The Honorable Carolyn Dineen King:

When I clerked in that same building in a pre-PC era, the state of our technology was that we had two massive, brand-new "word-processors"—each about the size of a Volkswagen—on which the judge and her three law clerks' written output was transcribed from longhand by two secretaries. There was one dedicated Lexis/Nexis terminal in the building law library for the use of all the Houston-based district and circuit court judges and their clerks, but I was one of the very few who used it regularly. We had telephones in chambers—but no fax machine. I am reasonably sure that they'd run off all the carrier pigeons already.

And to think that the failure to use computers in one's legal research might actually land one in ethical trouble under the right circumstances these days. Personally, I am so accustomed to computerized research and wordprocessing that when I actually have to use a set of books like Shepherd's, I have to relearn how. This comes as something of a surprise to me, given that the first time that I ever really used a personal computer was my second year of college. Now PCs are practically indispensable. The other day a computer worm temporarily shut the court's computers down and I actually went home to work on my computer.

2003-08-13T21:46:00.000-05:00

Thank Ye:

Many Thanks to JD2B for the link; The Curmudgeonly Clerk enjoyed an appreciable bump in traffic as a result. And it's little wonder: JD2B is an excellent site that features many useful links for pre-law and law students, as well as lawyers.

I also note that the (apparently) tireless Jerry Lawson has set up another blog: Fedlawyerguy.org: Resources and Networking for Federal Agency Lawyers, which has also blogrolled this site.

And, last but certainly not least, thanks to those folks who have taken time out of their busy schedules to e-mail me. I am behind on my blog posting and correspondence, but promise to move forward as expeditiously as possible.

P.S. I am behind, in part, because I continued to singelmindedly follow the Ashcroft/DOJ memorandum brouhaha again today. A couple more updates have been affixed to the original post.

2003-08-12T22:53:00.000-05:00

One-Track Mind:

Allow me to extend my apologies to anyone who stopped by hoping for some new material today. I have been devoting all of my time of late on the latest firestorm surrounding our Attorney General. I have written a detailed essay on the topic, in an attempt to clarify why I think that Ashcroft's conduct is so wrongheaded. I have also added updates as my debate with Stuart Buck on this issue progressed. Comments and criticism are, of course, more than welcome.

2003-08-11T22:20:00.000-05:00

Contra Buck: Ashcroft, Sentencing, and Discretion:

Introduction
I have written at some length to express my displeasure with the Attorney General's stance on the Sentencing Guidelines and judicial discretion thereunder. In two posts, see here and here, Stuart Buck, whose blog I daily enjoy, has offered a defense (of sorts) of Ashcroft.

I say "of sorts," because Buck's two commentaries have been principally devoted to demonstrating the hypocrisy of Senator Edward Kennedy and the incoherency of The New York Time's arguments respectively, both of which have leaped upon Ashcroft with their customary ferocity. Nonetheless, it is clear that Buck views Ashcroft's July 28, 2003 internal sentencing policy memorandum as being innocuous enough. For the following reasons, I do not find Buck's reasoning persuasive.

Setting aside Buck's criticism of the Kennedy and the Times, Buck's substantive defenses of the Ashcroft memorandum can accurately be characterized as follows:

(1) There is no evidence that Ashcroft is compiling a "blacklist" of judges;

(2) Even if Ashcroft were compiling such a list, it could not have any impact on the independence of the federal judiciary.

In the process of defending his first argument from prior criticism that I lodged, Buck writes:

I'm not sure that the Ashcroft memo really represents a new policy at all. From what I can tell, it might more accurately be described as a reminder to make sure that the existing policy on appeals is followed in every case.

I think that Buck's arguments are contradicted on their face by Ashcroft's own memorandum, statements made by apparent subordinates of the Attorney General, and the context in which these events have transpired.

Ashcroft's Memorandum & The PROTECT Act
The AG's memorandum purports to be an effort to bring DOJ practice in line with the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003), not to reiterate preexisting policy.

Although one might initially have thought that an act whose acronym stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today" might concern children, the legislation goes far beyond that in content and purpose. Of particular relevance to the topic at hand, Congress amended 18 U.S.C. § 3742(e), which now generally requires appellate courts to review downward departures under a de novo rather than an abuse of discretion standard. See § 401(d) of the PROTECT Act; see also United States v. Dyck, 334 F.3d 736, 739 (8th Cir. 2003) ("Section 401(d) of the PROTECT Act, however, requires us to consider de novo if the factor upon which the district court based its departure '(i) does not advance the objectives set forth in section 3553(a)(2); or (ii) is not authorized under section 3553(b); or (iii) is not justified by the facts of the case.'" ). The Act also requires that the United States Sentencing Commission promulgate new sentencing guidelines within 180 days that will "ensure that the incidence of downward departures are substantially reduced." See § 401(m)(2)(A). Notwithstanding that this latter measure in the legislation in question imparts the responsibility for curtailing downward departures upon the Sentencing Commission, the AG views passage of the PROTECT Act as an occasion "to provide clear guidance" on downward departures to the DOJ before the Commission has even acted on Congress's directive. So even though Ashcroft suggests that he is attempting to bring the DOJ into compliance with the PROTECT Act, he is, in fact, riding out ahead of it in some respects.

The section of Ashcroft's memorandum that has particularly caught the attention of the media is the seventh item in the memorandum's appendix, which amends the United States Attorneys' Manual as follows:

(7) Recurring illegal departures: An adverse decision must be reported if the following two criteria are met:
(a) the court improperly departed downward in a manner that is not otherwise required to be reported; and
(b) the basis for departure has become prevalent in the district or with a particular judge.

I think that Buck is rather mistaken in his assessment that the AG is merely reiterating DOJ standard operating procedure. As an initial matter, one does not generally amend a policy manual in order to draw attention to preexisting policy, but rather to alter existing policy. Moreover, the de novo appellate standard of review effectively increases the odds of appellate reversals by substituting a less deferential standard of review for a more restrictive one, which creates an incentive for the DOJ to pursue a more aggressive appellate practice. Ashcroft opens his memorandum by referencing the reforms of the PROTECT Act. It is reasonable to assume that he intended DOJ policy to change in accordance with Congress's reforms. Indeed, the AG suggests as much in the memorandum:

Because it is a party to every federal sentencing proceeding, the Justice Department has a duty to ensure that its future actions fully support the important reforms enacted by the PROTECT Act.

A Judicial Blacklist?
Buck maintains that the memorandum does not provide for a blacklist. In the most literal sense, this is true. There is nothing in any of this that even remotely suggests a formal Nixonian "enemies list." However, it does seem clear that individual judges are to be targeted.

It is indisputable that some form of information-gathering, however informal it might be, must take place. Under the seventh emendation to the U.S. Attorneys' Manual, excerpted supra, information about district court departures not approved of by the Government must first be gathered at the local level and then relayed to superiors in Washington. Of particular note is that the emendation refers to departures that have become routine within a given "district or with a particular judge." Now this information-gathering is supposedly soley for appellate purposes. Nonetheless, it has occasioned much trepidation. Why is this so?

I suggest that The Honorable James Rosenbaum's recent ordeal before Congress suggests an answer. As related by the American Judicature Society:

[A legislative amendment designed to curtail downward departures] followed a threat by a House committee to subpoena documents concerning the sentencing practices of Chief Judge James Rosenbaum of Minnesota. In May 2002, Judge Rosenbaum, a former prosecutor who was appointed by President Reagan, testified in opposition to a bill that would have reinstated tougher sentences for first-time drug offenders. That testimony evidently upset committee Republicans, and a year later, notwithstanding numerous efforts to defuse the situation, Judge Rosenbaum remains under the cloud of a House investigation.
* * *
. . . . [I]t is difficult to regard the effort as other than an attempt to intimidate both Judge Rosenbaum and his colleagues on the federal bench. That is a tactic openly professed by at least one member of the Republican leadership in the past.

Rosenbaum's predicament was so precarious that he actually had to obtain counsel to defend himself from Congress:

DRCNet reported last week that Republicans on the House Judiciary Committtee were about to subpoena Minnesota federal court Chief Judge James Rosenbaum in an effort to punish him for speaking out against harsh federal drug sentences and for allegedly sentencing at least two drug defendants to less time than the law required. But the Wall Street Journal, the only major media outlet to cover the story, reported on March 13 [, 2003] that committee Republicans have agreed to hold off on the subpoena after Rep. John Conyers (D-MI), the ranking Democrat on the committee, offered to mediate the dispute.
The tussle between Rosenbaum and the committee Republicans had simmered for months before being brought to a head two weeks ago, when Rep. Howard Coble (R-NC) said in a letter seeking the subpoena that Judge Rosenbaum had "imposed illegal sentences in at least two cases" and that he was seeking a subpoena to "reveal further illegality on his part in sentencing additional criminal defendants."
The judge's attorney, former US Attorney Victoria Toensing, argued that he neither misled the committee in his testimony last year—in which he argued that federal law required him to impose harsh and unfair sentences on defendants with minor roles in drug cases—nor violated sentencing laws. Rosenbaum had indeed sentenced some defendants to less time that required by federal sentencing guidelines, Toensing told the Journal, but those were lawful "downward departures." Toensing also said that the committee's move to subpoena Judge Rosenbaum's sealed transcripts and other court records overstepped congressional authority.

And thus we are presented with the unseemly spectacle of a Democrat safeguarding a Reagan nominee (and former U.S. Attorney) from Republicans.

Ashcroft's memorandum certainly resonated in Minnesota, the state in which Judge Rosenbaum sits:

"This will have a chilling and intimidating effect on judges, and this is why I no longer draw criminal cases,'' said Paul Magnuson, a senior federal trial judge in Minnesota who now handles mostly civil cases. "I predict that the number of departures by federal judges from sentencing mandates will fall to virtually zero.''

The Chief Justice himself has stated unequivocally that this judge-by-judge information gathering tactic is quite troubling:

The second topic I would like to address is the recent efforts by some in Congress to look into downward departures in sentencing by federal judges, in particular our colleague Judge James Rosenbaum. We can all recognize that Congress has a legitimate interest in obtaining information which will assist in the legislative process. But the efforts to obtain information may not threaten judicial independence or the established principle that a judge's judicial acts cannot serve as a basis for his removal from office.
It is well settled that not only the definition of what acts shall be criminal, but the prescription of what sentence or range of sentences shall be imposed on those found guilty of such acts, is a legislative function—in the federal system, it is for Congress. Congress has recently indicated rather strongly, by the Feeney Amendment, that it believes there have been too many downward departures from the Sentencing Guidelines. It has taken steps to reduce that number. Such a decision is for Congress, just as the enactment of the Sentencing Guidelines nearly twenty years ago was.
The new law also provides for the collection of information about sentencing practices employed by federal judges throughout the country. This, too, is a legitimate sphere of congressional inquiry, in aid of its legislative authority. But one portion of the law provides for the collection of such information on an individualized judge-by-judge basis. This, it seems to me, is more troubling. For side-by-side with the broad authority of Congress to legislate and gather information in this area is the principle that federal judges may not be removed from office for their judicial acts.
* * *
But the principle that a judge may not be impeached for judicial acts does not mean that Congress cannot change the rules under which judges operate. Congress establishes the rules to be applied in sentencing; that is a legislative function. Judges apply those rules to individual cases; that is a judicial function. There can be no doubt that collecting information about how the sentencing guidelines, including downward departures, are applied in practice could aid Congress in making decisions about whether to legislate on these issues. There can also be no doubt that the subject matter of the questions, and whether they target the judicial decisions of individual federal judges, could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties. We must hope that these inquiries are designed to obtain information in aid of the congressional legislative function, and will not trench upon judicial independence.

Although Buck acknowledges Rehnquist's remarks, he downplays their import regarding the present debate. I think that Buck misreads the Chief Justice, and he does so because he fails to place the Chief Justice's remarks in context. Rehnquist may have ended his speech with talk of impeachment, but he began the segment on judicial independence with a clear reference to Judge Rosenbaum. The Rosenbaum imbroglio and information-gathering directed at individual judges is the proper framework for construing Rehnquist's remarks. He ended with impeachment of judges because he viewed that as a disturbing potential end result of such endeavors, not because he regarded impeachment as the sole credible threat to the independence of the judiciary.

Observers have every reason to believe that Ashcroft's sentiments mirror those of Congressman Coble. For one, Ashcroft, like Coble takes a rather rhadamanthine view of criminal justice. Morover, his subordinates have been entirely plain in their intentions:

Justice Department lawyers, who had championed even tougher measures to limit judicial discretion in sentencing, said the change is needed because of the increasing willingness of some judges to ignore sentencing guidelines.
That nearly all departures from the guidelines have resulted in more lenient sentences further angered Ashcroft and his conservative-minded attorneys, officials said.
"Some judges felt they were not bound by any guidelines," one senior Justice Department official said. "They were ignored out of some sense that the judge was not beholden to them. . . ."
Department spokesman Mark Corallo said that under the previous system, officials in Washington were alerted to problematic sentences on an "ad hoc" basis. By requiring U.S. attorney's offices to report the lighter sentences in a systematic way, Corallo said, Ashcroft and his advisers will be able to identify judges and jurisdictions that deviate from legislative mandates on sentencing.

"Illegal" Sentences
Buck and others insist that the DOJ has every right to appeal illegal sentencing decisions. That's a statement that is impossible to disagree with. But that's the problem with verities: they do not really say much of anything. To begin by assuming that Ashcroft et al. are, in fact, confronted with a bevy of illegal sentencing is, per force, to conclude that Ashcroft is in the right. But no such assumption is warranted.

It is clear that the "law and order" Congress and Department of Justice view most downward departures as unwarranted and illegal. But stop and reconsider the facts for a moment. Under the regime that existed prior to the PROTECT Act, the DOJ appealed almost none of the complained of downward departures:

According to statistics compiled by the U.S. Sentencing Commission, 35 percent of the sentences handed down in federal court in fiscal 2001 fell below the range set in the sentencing guidelines. Almost half of those involved plea bargain agreements or other cases of "substantial assistance" to prosecutors, but 18 percent of the "downward departures" were for other reasons. Federal judges imposed sentences that exceeded the guidelines in less than 1 percent of the cases; the Justice Department appealed 19 of more than 11,000 "downward departure" sentencing decisions.

These statistics give rise to a reasonable question that no one has yet even attempted to answer: if the DOJ was heretofore confronted with a myriad of illegally imposed sentences, why did it not appeal more of them? As has been pointed out, whatever this information-gathering program will accomplish, it will not alter the basic mechanics of the DOJ appellate process. Therefore, whatever Ashcroft hopes to achieve via the new policy that he announced in his July 28, 2003 memorandum, its prior nonexistence does not seem to account for the lack of previous appeals. That is, Ashcroft's new policy does not appear to be intrinsically designed to effecuate more appeals.

Moreover, consider the fact that Congress had to substantially change the law, directing the Sentencing Commission to change the downward departures provisions, in order to achieve the results that the AG and Congress seek to obtain. Now if the departures in question were always "illegal," why is it that Congress had to amend the law to prevent them rather than resorting to the ordinary appellate process? Ashcroft and company seem to suggest that it's because they were faced with massive resistance from the bench. Such a theory is not beyond the realm of imagination. Certainly judges have no love of the results dictated by the Sentencing Guidelines. In a recent speech:

Justice Kennedy seemed to join the growing debate over Attorney General John Ashcroft's directive that federal prosecutors report to him data on judges who levy sentences lower than federal guidelines dictate. "The federal sentencing guidelines should be revised downward," Justice Kennedy said in arguing that discretion remain in judges' hands rather than with a federal prosecutor "often not much older than the defendant."

Yet Ashcroft was not willing to submit this thesis of his to the courts. It seems to me that Ashcroft et al. employ the word "illegal" with reference to the sentencing decisions in question in the same fashion that speakers sometimes use the word "unconstitutional" with reference to disliked policies—i.e., as an argumentative claim rather than as a descriptive statement about the law. By allowing the AG to frame the debate in terms of "illegal sentences," Ashcroft's supporters are effectively allowing him the benefit of simple ipse dixit. In addition, they are allowing Ashcroft to denigrate the integrity of federal judges without demanding any genuine proof.

The existing, pre-PROTECT version of Section 5K2.0 of the U.S. Sentencing Guidelines indicates that there is nothing inevitable about the correctness of the AG's position that judges were illegally departing downward. In relevant part, Section 5K2.0 provides that:

Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guidelines, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." Circumstances that may warrant departure from the guideline range pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The decision as to whether and to what extent departure is warranted rests with the sentencing court on a case-specific basis. . . .

The legally binding commentary to this particular guideline provision elaborates that:

The United States Supreme Court has determined that, in reviewing a district court’s decision to depart from the guidelines, appellate courts are to apply an abuse of discretion standard, because the decision to depart embodies the traditional exercise of discretion by the sentencing court. Koon v. United States, 518 U.S. 81 (1996). . . .

In the face of such discretion, it is difficult to see why one should just take Ashcroft's word for it that "illegal" sentences were involved when he was not willing to put the DOJ's resources and reputation at stake in defense of that contention prior to having the law amended so as to render it more amenable to proof of his claims.

Conclusion
As with so many other topics, reasonable people can disagree on this one. And, as usual, some of Ashcroft's critics have done themselves and this issue a genuine disservice by making claims that they cannot substantiate. But that failing strikes me as being at the heart of Ashcroft et al.'s arguments as well.

I am also concerned about the unwillingness of Ashcroft's defenders to concede that there is some potential for abuse here. I previously brought Judge Baer's ordeal, see here, here, and here, to Buck's attention, and was met with this rather unsatisfying, I think, response:

. . .. [W]hat does [Baer's] example prove? That there has been one solitary case in the past decade in which a federal judge went off the deep end, but then corrected himself after furious criticism and threats of impeachment from Congress and the President who appointed him. But why is Baer's situation even relevant? . . .

I think that to ask this question is to answer it. And that other lawyers do not share this recognition troubles me a good deal. Unlike legislators and executive branch officials, Article III judges are not political actors and should not be subject to the political process. Indeed, Article III was crafted so as to guarantee this result to the extent possible. It is a risky business to seek extra-judicial redress regarding individual judicial outcomes. In Baer's case, as in almost any other conceivable case, the alternative is appeal rather than politicking. I would just as soon not see federal judges treated, on an individual basis, as poltical targets of opportunity. The prospect of information-gathering on individual judges led the Chief Justice to opine about Judge Rosenbaum's not altogether disimilar treatment and the illegitimacy of impeachment as a remedy for unwelcome judicial decisions. I think that Rehnquist's concerns were dead-on in this regard.

Of course, one may pursue legislative reform after the fact as well. The aforementioned provisons of the PROTECT Act are the result of such effort. But the notion that this legislation was enacted to rein in unruly judges is mere assertion. Just as likely, its proponents were displeased with the results that the law yielded, so they simply changed the law so as to produce the desired outcomes.

The pre-PROTECT version of the Sentencing Guidelines and its provisions on downward departures acknowledge that the Sentencing Guidelines are a mere manual, and that, no matter how complex, it cannot hope to match the compexity of real life. It leaves substantial discretion in the trial courts so that just sentences might be imposed in individual cases. Even with this mechanism, the Guidelines are, as Justice Kennedy's remarks supra suggest, widely regarded as draconian in many respects. See also United States v. Davern, 970 F.2d 1490, 1502 (6th Cir. 1992) (Merritt, Chief J., dissenting) (“The facts surrounding his arrest and conviction illustrate with clarity the unjust and ultimately indefensible system effectuated by the application of the Sentencing Guidelines.”), cert. denied, 507 U.S. 923 (1993); United States v. Shepherd, 857 F. Supp. 105, 111 (D.D.C. 1994) (“This Court, along with many others, has repeatedly expressed its dismay at the restraints Congress and the Sentencing Commission have hoist upon sentencing courts in recent years.”), remanded by 102 F.3d 558 (D.C. Cir. 1996). Any "reform" that threatens to not only perpetuate this state of affairs but to exacerbate it by curtailing discretion in sentencing is bound to diminish the level of justice in our criminal justice system. But to couple such an effort with demonization of the judiciary and information-gathering on particular judges or districts threatens the very system itself. In short, Ashcroft's proposed implementation of the PROTECT Act is even more pernicious than the Act's substantive provisions.

UPDATES:

[1] Professor Yin has commented on this issue, citing an instance in which a district judge was apparently less than faithful to the Sentencing Guidelines. There is no doubt that other such instances exist. See, e.g., United States v. Reynolds, Nos. 01-1202L, 01-1253XAP, 2001 WL 1486198, at *3 (2d Cir. 2001) (unpublished opinion); United States v. Blackwell, 127 F.3d 947, 957 n.9 (10th Cir. 1997). However, it is not even remotely clear that the incidence of such instances is epidemic. Ashcroft and his defenders have not even bothered to offer evidence in this regard.

Professor Yin has also provided an updated rejoinder, in which he indicates that Ashcroft's incipient information-gathering program may be an attempt to gather the data that I maintain has not been marshaled. This is not a meritless position. However, I must confess that I would rather have another entity doing the data collection and analysis, if it must be done. Keep in mind that the DOJ is an interested party in the litigation in question, not a neutral fact-seeker. And Ashcroft, as detailed below, is more "interested" than most. In addition, I think that the updates below give some indication as to why the minimal data that Ashcroft proposes to collect will not suffice to make his case at any rate.

[2] Professor Turley had an op-ed in yesterday's L.A. Times, in which he condemned Ashcroft's memorandum. As with all newspaper commentary, Turley's piece is less than perfect, but it does contain the following noteworthy passages:

In matters of faith and law, Atty. Gen. John Ashcroft generally distrusts the role of discretion—it is uniformity, if not rigidity, that defines his vision. . . .
* * *
Ashcroft is seeking to prevent judges from tailoring sentences to fit individual crimes. If successful, sentences in the United States would be meted out with all the speed and care involved in calculating a mortgage rate on the Internet. Judges are resisting this robotic approach to sentencing and are fighting to preserve a tradition of judicial discretion that runs to the early days of our country. In a system without such discretion, pleas for mercy or extenuating circumstances would be considered immaterial to justice.
* * *
. . . . Denounced as a kind of blacklisting, the new policy is particularly troubling because of Ashcroft's history of attacking judges who don't fit his vision of justice. One of the most notorious incidents was addressed in his close confirmation fight.
As a senator from Missouri, Ashcroft blocked the elevation of Missouri state Supreme Court Justice Ronnie White to the federal Court of Appeals. A widely respected African American jurist (he recently was made chief justice of the Missouri Supreme Court), White was considered a natural for the federal court. Ashcroft, however, led a vicious campaign against White's confirmation and labeled the judge as "pro-criminal." In particular, Ashcroft insisted that White was hostile to the death penalty, even though White had voted to uphold 41 out of 59 death sentences that came before him.
Now, Ashcroft believes that federal judges who lower sentences are violating the intent of the federal law. However, the Supreme Court has ruled that such decisions are the very essence of independent judicial review and has held that the sentencing guidelines anticipate such departures. Justice Anthony Kennedy, a conservative on criminal matters, held that this country had a long "tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in human failings that sometimes mitigated, sometimes magnify, the crime and punishment."

But what makes Turley's commentary noteworthy, quite apart from its content, is that Turley is a conservative who had publicly supported Ashcroft's confirmation to the position of AG. Support for Ashcroft and his policies appears to be on the wane in all quarters.

[3] Stuart Buck has offered another potential defense of Ashcroft's memorandum and policy: the perceived need for uniformity in sentencing. Buck writes:

Consider this chart (PDF) from the Sentencing Commission. One column lists the percentages of cases in which judges granted downward departures for reasons other than providing "substantial assistance" to the court. These percentages are provided by circuit and district throughout the entire country.
Thus, we can see that in 2001, there were vast disparities in how the Guidelines were applied across the country. In Pennsylvania, the highest percentage of downward departures was in the Middle District—9.3% of all cases. In South Carolina, only 2% of cases involved downward departures for "other" reasons. (You see similarly low percentages in other southern states.) The Western District of Texas, however, granted such departures in 25.7% of all cases. The Ninth Circuit as a whole granted such departures in 38.7% of all cases, while the Southern District of California granted them in 50.5% of cases.
* * *
. . . [M]aybe Ashcroft is right in suggesting that the Guidelines are not being applied consistently across the country. (See p. 4 of his memo, which mentions the "goal of reducing unwarranted disparities in sentencing among similarly situated defendants.") That is the whole point of the Guidelines, after all—to make sure that equally situated defendants are treated equally no matter where they are standing trial.

Although I do not think that this point is entirely devoid of merit, I also do not think that it will bear too much scrutiny. As an initial matter, I doubt very much that anyone would arrange their personal affairs on the basis of such statistical analysis because these figures tell an observer nothing about the reasons for such differences.

As Buck acknowledges elsewhere in his post, differences in docket may well explain much of the variance. For example, why should one think that districts overwhelmed with drug and immigration cases (such as S.D. Cal. and W.D. Tex., both of which Buck references), which are quite unique in nature, would have statistics comparable to districts whose criminal docket is not so burdened? I suggest that this docket-related surmise has more explanatory power than Ashcroft's accusation to the effect that renegade judges are flouting the Sentencing Guidelines at will and must be brought to heel.

Compare, for example, the "other downward departure" rates of Texas's two border districts, S.D. Tex. (17.5%) and W.D. Tex. (25.7%), with the E.D. Tex. (9.9%) and N.D. Tex. (6.5%). Confronted with these figures, one might conclude either that (a) the judges in South and West Texas flout the law, or (b) that the factual scenarios applied to the statutes and sentencing guidelines for the crimes endemic to the border simply produce different departure rates than for those districts confronted with differing crimes and a wider diversity of criminal sentencing issues. Why credit Ashcroft's assertion that the former is the case? Similarly, comparisons between districts with a high volume of criminal cases and those with far fewer criminal matters may also be less than revealing. No doubt there are far more variables than I am accounting for in this brief post.

Consider also the two busiest circuits in terms of criminal appeals. The "lawless judges" thesis seems even less plausible when one considers that the law and order Fifth Circuit Court of Appeals has one of the higher overall circuit departure rates (18.1%). The Ninth Circuit, with a genuinely remarkable "other downward departure" rate of 38.7% skews the overall statistics for all of the circuits. Aside from having the immigration cases generated by its border districts, the Ninth Circuit has a whole host of variables that might account for its general statistical deviancy. Although plagued by charges of ultraliberalism, (almost) everyone also acknowledges that the Ninth is simply too large, and this institutional infirmity, in conjuction with the border cases, may suitably account for the high rate of downward departures. It's not clear tht the Ninth Circuit can profitably be compared to the others at all given its uniqueness.

In short, these varying statistics do beg many questions, but they provide no answers. Serious inquiry might be a more useful response than DOJ collection of data on individual judges. (Doesn't everyone agree that the prospect of an evenhanded study by the United States Judicial Conference, the Sentencing Commission, or academics would be preferable to Ashcroft's less-than-neutral, agenda-oriented information-gathering?) The supposition that these statistics necessarily reveal that similarly situated defendants are being sentenced at variance from one another rests upon the assumption that these statistics, which stretch across across divisions, districts, and circuits, do, in fact, pertain to similarly situated offenders. Nothing in these statistics supplies any basis for such an assumption.

Finally, although the Guidelines were enacted to impose some uniformity in sentencing, the provisions also provided for judicial discretion in some measure. The Guidelines merely institutionalized, formalized, and channeled discretionary decision-making. Is there really any reason to think, in the abstract, that departure rates ought to be roughly equivalent across the districts, given individualized discretionary assessments? In addition, the jurisprudence of the various circuits often diverges from circuit to circuit. This is equally true with reference to interpretations of the provisions of the Sentencing Guidelines. Thus, even application of the very same provision might vary in different districts across the nation, without even accounting for discretionary assessments. How much of the variation in departure rates may be attributed to differing judicial construction at the appellate level? It seems to me that no one has even bothered to consider this particular issue.

[4] Buck has updated his latest posting and makes two basic points. The first is that:

The Clerk keeps insinuating that Ashcroft has made wild accusations about the federal judiciary. But as far as I can tell, Ashcroft has not himself "accused" anyone of anything. The only thing I've seen with Ashcroft's name on it is a bland and innocuous memo telling prosecutors to make sure that they initiate the appeals process if judges issue decisions that are "not supported by the facts or the law," if such decisions occur. (p. 4 of the memo). . . .

Ashcroft has wisely chosen not to step into the firestorm that erupted when his memorandum became public. So he has not made any specific statements in this regard. However, Ashcroft has a lengthy record of public service. While the text of the memorandum may be bland, when juxtaposed with Ashcroft's longstanding and deeply held views regarding the judiciary, there seems to be little doubt about his motives. Ashcroft's views in this regard have been well known since before his confirmation to the position of AG. As USA Today reported in January of 2001:

It is the choice of Ashcroft that means the most to court watchers. His name is synonymous with the outer reaches of conservatism, and he, more than just about any other senator, made judicial selections his business.
It is well known that Ashcroft obstructed the nomination in 1999 of Ronnie White, an African-American judge in Missouri, to a federal trial court. Ashcroft said White was "pro-criminal" in death penalty cases. Ashcroft also used Senate procedures to single-handedly block action on other nominees he said were too "activist," and repeatedly decried jurists who he said "believe their role is to make laws, not merely apply them."

His tenure as AG has also been marked by this view. This is not the first time as AG that Ashcroft has vigorously opposed the judgment of sentencing courts. No one disputes this about Ashcroft, including his defenders. Mark Levin, president of the Landmark Legal Foundation, has contrasted Ashcroft with those who "fight for the appointment of liberal judges who coddle the worst kind of criminals." Addressing the matter of Ashcroft's opposition to Ronnie White's nomination to the bench, Clint Bolick of the Institute For Justice argued that "Ashcroft opposes liberal judges no matter if they are black or white."

Given Ashcroft's own location along the political spectrum, the term "liberal" ought to be liberally construed. Even well-respected Republicans affiliated with the current administration are often well to the left of the AG. All of which is to say that it would not take much to be regarded as a lawless, liberal judge by an ideologue like Ashcroft.

Moreover, as noted above, the original Washington Post story on this issue cites and quotes some of Ashcroft's DOJ subordinates to the effect that Ashcroft intended this measure as a crackdown on lawless judges. Given that Ashcroft has remade the DOJ in his own image staff-wise during his tenure, there is little reason to think that the comments of these DOJ sources, one of whom was a senior official, are unrepresentative of Ashcroft's thinking on the issue.

So I am flummoxed by Buck's argument. Are we to read Ashcroft's latest memorandum divorced from everything we know about the man and his law enforcement philosophy? Are we to disregard the statements of his own subordinates regarding the AG's motives and the impetus behnd the DOJ's new policy?

Buck also revisits the issue of the statistical variance in downward departures:

As for the differing dockets, let's take a quick look at some statistics: The Southern District of California's docket is 42.2% drugs and 44.1% immigration, and grants downward departures 50.5% of the time. The Eastern District of Virginia's docket is 38.2% drugs and 3.3% immigration, and grants downward departures 3.5% of the time. So even though SD Cal has a lot more immigration cases, that fact alone can't possibly explain the disproportionately high number of downward departures it grants. . . .

Although I am not sure why one would choose to compare S.D. Cal. and E.D. Va. and expect equivalent results, the disparity is admittedly remarkable at first blush. Why the variance? I can only suggest reasons that seem plausible.

First, the far larger number of immigration cases in the S.D. Cal. probably contributes to the differing "other downward departures" statistics. Second, although both districts devote a similar percentage of their docket to drug cases, the actual drugs involved are quite different. For example, 80.7% of the E.D. Va.'s drug docket concerned hard drugs (i.e., powder cocaine, crack, and heroin), while a mere 15.5% of the district's drug caseload concerned marijuana. In contrast, the S.D. Cal.'s drug docket consisted of almost all marijuana cases (76.8%), while a mere 12.9% of the district's drug cases concern the aformentioned hard drugs. Why is this important? Because the federal drug statutes and the Guidelines treat the same amounts of cocaine and marijuana, for example, rather differently. Hard drugs are frowned upon a great deal more by both the law and social mores, the latter of which will no doubt influence judges' willingness to contemplate discretionary departures. This different treatment helps explain why the mean average sentence for drug trafficking crimes in the E.D. Va. is 129.4 months (median sentence of 120), while the mean average for the same category of crime is a mere 24.5 months (median of 15.0) in the S.D. Cal..

And this is just one of many variables lurking beneath the surface of the very broad, nearly meaningless statistics that Buck relies on. Lost in the general statistics that he cites are the actual drug quantities involved in individual cases, the prior criminal history of particular defendants, and the specific offense characteristics for any given crime, all of which shape a sentence and the possibility of departures. One could just compare the mean/median averages for drug trafficking sentences of the S.D. Cal. and E.D. Va. and conclude that Virginian jurists are the dragonmen of the Drug War or that Californian federal district judges are soft on drug crime. But given the numbers beneath the surface that illumine the nature of each district's drug docket, there is every reason to believe that neither characterization is accurate.

I would suggest that comparisons of the "other downward departure" rate between districts will frequently be this complex, and that Buck wildly underestimates the complexity of the task that he sets for himself when he attempts to justify the interrelated notions that there should be (relative) uniformity in sentencing across dockets/districts, that there is not such (relative) uniformity, that this lack of uniformity is amenable to correction, should be corrected, and that Ashcroft is merely attempting to do so. In short, building a credible statistical case for disregard of the Sentencing Guidelines on the federal trial bench is an extremely complex task that must take into account a host of variables, one which no one has yet undertaken. Certainly, neither my nor Buck's brief foray into this area suggest any definitive answers.

[5] Mark H. Allenbaugh, a former staff attorney for the United States Sentencing Commission has a nice column over at FindLaw today. (Link via How Appealing.) Among many interesting tidbits, Allenbaugh shares the following:

. . . Last week, Chief Judge Marilyn Hall Patel of the Northern District of California attacked the PROTECT Act and Ashcroft memo in a published opinion. She complained that, under the new regime, "the wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal cases and sentencing defendants is chucked for the inexperience of young prosecutors and the equally young think-tank policy makers in the legislative and executive branches."

Unfortunately, Judge Patel's opinion does not appear to be online yet.

Allenbaugh also mentions that, for those who find the PROTECT Act and Ashcroft's memorandum to be appealing, there is still more good news:

Now circulating in Congress, but not yet introduced, is the Vital Interdiction of Criminal Terrorist Organizations Act of 2003, or the VICTORY Act. (Ironically, or appropriately, the 'Y' is missing.)
The Act does have one redeeming feature: It would reduce the much derided 100-1 sentencing ratio between crack and powder cocaine to 20-1. That, at least, is a step in the right direction. But this small softening is accompanied by a large crackdown: With respect to the sentencing of drug offenders, the Act would reduce the impact of certain mitigating factors, and increase the impact of certain aggravating factors—predictably leading to longer sentences.
Otherwise, the VICTORY Act continues the assault on the federal judiciary that the PROTECT Act and the Ashcroft memo embody. It would further reduce the discretion of federal judges when sentencing drug offenders. It would also make it more difficult for federal judges to invoke the "safety valve"—a legal mechanism whereby judges can sometimes sentence a first-time drug offender below the mandatory minimum sentence. (Technically, the "safety valve" is not a downward departure mechanism, though it has the same effect.)

Much like the PROTECT Act, which was purportedly about protecting children, it is interesting to note that Congress is looking into further limitations on judicial discretion in the name of combatting terrorism. One wonders if such measures could pass Congress if they weren't wrapped up in the flag and accompanied by anguished cries of "But what about the children?!?" These efforts are shameless and dishonest.

Allenbaugh's megaphone just got bigger: Ken Lammer's has pointed out that the former's commentary has also been placed on the CNN website as well.

[6] I have located the Patel opinion referenced in the previous update on the website for the Northern District of California. The case is styled United States v. Kenneth Mellert, No. CR 03-0043 MHP (N.D. Cal. July 30, 2003). Judge Patel's opinion is worth quoting at length:

In 1984 Congress established the United States Sentencing Commission “as an independent commission in the judicial branch of the United States” to set “sentencing policies and practices for the Federal criminal justice system.” 28 U.S.C. §991. Among the considerations spelled out in the statutory enactment are the “nature and circumstances of the offense and the history and characteristics of the defendant” including the seriousness of the offense, just punishment, adequate deterrence, protection of the public from further crimes of the defendant and the need to provide the defendant with educational or vocational training or other effective correctional treatment. 18 U.S.C. §3553(a). The Commission is directed to adopt such guidelines as would avoid “unwarranted sentencing disparities” among defendants with similar records, convicted of similar crimes “while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.” 28 U.S.C. §991(b).
While many federal judges have chafed at the notions behind and the strictures of the guidelines, they try mightily to comply with them and to assure that the sentences they impose comport with the principles guaranteed by the United States Constitution.
The Sentencing Commission, pursuant to its statutory mandate, regularly reviews the guidelines, the data and material submitted by the District Courts, and other information it gleans from its research, hearings and advisory groups. This last category represents a broad group of professionals and practitioners with extraordinarily varied experiences within the criminal justice system. One would be hard-pressed to find a greater wealth of wisdom and experience that could be brought to bear upon the issues related to sentencing.
Nonetheless, some who are less dispassionate, far less experienced, and imbued with a sense of mission have set about to change the guidelines directly, not through the thoughtful and careful deliberative process informing the adoption of the Sentencing Guidelines by the Sentencing Commission. For example, the Protect Act, Pub.L. No. 108-21, 117 Stat. 650 (2003), was amended after twenty minutes of discussion on the floor of the House of Representatives. The amendments added not only statutory provisions for mandatory minimums with respect to certain crimes, but also actually added or amended the guidelines themselves. Before this Congressional tinkering with the actual guidelines, the Commission, pursuant to its mandate, thoroughly reviewed the data and research it had accumulated, consulted with the advisory groups, solicited comment and, then, amended, added or deleted guidelines providing reasons, commentary and explanations for the changes.
The Protect Act represents a significant departure from this dispassionate, deliberative process. It appears that it is the harbinger of future legislation. For example, a proposed bill entitled the “VICTORY Act”, appears to be lurking in the halls of Congress. This piece of legislation would add not only more mandatory minimums, but also insinuate Congress even further into the process of actually drafting and promulgating Sentencing Guidelines, thus taking over the role of the Sentencing Commission as well as the judiciary’s traditional role of sentencing. Indeed, section 401(n) of the Protect Act amends 28 U.S.C. section 991(a) changing the composition of the Sentencing Commission to delete the requirement that “at least three” of the members of the Commission be “Federal judges” to “not more than three”, further diluting the judiciary’s input and decision making with respect to the guidelines.
It appears that much of Congress’ effort is prompted and advised by the Department of Justice or persons within that Department without the benefit of the accumulated wisdom of the Sentencing Commission or the Judiciary. The thrust of the legislation is to remove more and more of the determination and discretion in sentencing from an independent judiciary and the Commission and vest it in the
Department of Justice, which, of course, is a partisan in our system of justice.
Under this new regime not only will the government determine the charges to be filed, whether the indictments will undercharge or overcharge the criminal conduct, or, whether it will engage in pre-indictment or post-indictment maneuvering to bring about the government’s desired result, but it also will be the only voice heard when adopting statutory sentences and Sentencing Guidelines with less and less discretion afforded to the courts and the Sentencing Commission. To put it more bluntly, the wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal cases and sentencing defendants is shucked for the inexperience of young prosecutors and the equally young think-tank policy makers in the legislative and executive branches.

Hear! Hear!

[7] Professor Frank O. Bowman III, a former federal and state prosecutor and special counsel to the U.S. Sentencing Commission, has a nice balanced piece on this issue in the Washington Post. See Frank R. Bowman III, When Sentences Don't Make Sense, Washington Post, Aug. 15, 2003, at A27. Among many interesting observations, Bowman writes that:

. . . [R]oughly 80 percent of the more than 19,000 downward departures granted each year are requested by the government as a result of the defendant's cooperation or for some other reason. Moreover, the government consents to many of the departures even though it has not affirmatively requested them. The real story on departures is not that judges sometimes depart against the wishes of prosecutors but that prosecutors and judges agree to reduce sentences by departure in more than 25 percent of all federal criminal cases.
. . . [D]epartures are only one piece of a pervasive national pattern of manipulating the guidelines. A departure below the guidelines range will certainly reduce a defendant's sentence. But a sentence can be reduced equally effectively by manipulating the fact-finding process that decides where a case goes on the "grid." To give a crude example, if a defendant actually sold five kilograms of cocaine but is found for sentencing purposes to have sold only four, his sentencing range will be 8 to 10 years instead of 10 to 12. This reduction can be accomplished if the prosecutor stipulates, as part of a plea agreement, to less cocaine than he could prove, or if the judge finds that, despite evidence of five kilos, only four have been proven. As my colleague Michael Heise and I have shown in a pair of studies in the Iowa Law Review, the length of the average federal drug sentence has been declining since the early 1990s, largely as a result of choices made by both prosecutors and judges during plea bargaining and sentencing. And sentence manipulation is not confined to drug cases.
The Justice Department is well aware of its own people's complicity in evading the guidelines. . . .
* * *
The flaw in both the Ashcroft memo and the PROTECT Act of 2003—which seeks to restrict departures and to which the Ashcroft memo was a response—is that they dogmatically insist sentencing law be followed to the letter, without pausing to ask why hard-nosed federal prosecutors and crusty federal judges (at least half of whom were appointed by Republicans) are colluding to evade that law on a massive scale. The truth, as Supreme Court Justice Anthony Kennedy told the American Bar Association recently, is that federal sentences are harsher and the guidelines less flexible than they should be. For over a decade, the legal professionals who apply the guidelines to real people have been expressing this truth through their behavior. But efforts by the Sentencing Commission to amend the guidelines accordingly have been blocked by right-wing Republicans and Democrats determined never to be outflanked to the right on law- and-order issues.

For reasons that I will hopefully have time to express in a future update, I am not sure that I agree with Bowman's assessment that what is going on here can be characterized as "manipulation" on average given that the Guidelines expressly provide for departures, a fact that Bowman notes in an unexcerpted portion of his editorial. However, his thesis is certainly plausible in many respects. And I have yet to read either of the articles that he references. See Frank R. Bowman III & Michael Heise, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa L. Rev. 1043 (2001); Frank R. Bowman III & Michael Heise, Quiet Rebellion II: An Empirical Analysis of Declining Federal Drug Sentences Including Data From the District Level, 87 Iowa L. Rev. 477 (2002).

[8] Howard Bashman points to this article by Jonathon Groner over at Law.com. Among other things, Groner makes the following interesting observations:

The Sentencing Commission is caught in the middle of this controversy.
* * *
The commission, four of whose members are federal judges, is legally required to follow the lead of Congress. It is part of the judicial branch and has no separate legislative authority. Yet indications abound that several of its members are not convinced that the nation's federal courts have a problem with overly lenient sentences that needs to be fixed.
* * *
The commissioners declined requests to be interviewed about their views before the hearing. But people who have spoken with them say that at least two panel members—Vice Chairs Ruben Castillo and William Sessions III, both U.S. district judges—are skeptical of the intent of the Feeney Amendment and of the data supporting it.
Castillo, who sits in the Northern District of Illinois, and Sessions, who sits in the district of Vermont, are both Bill Clinton appointees to the bench.
Commissioner Michael O'Neill, a former aide to Sen. Orrin Hatch, R-Utah, last month criticized the process under which the Feeney Amendment was passed, telling The Wall Street Journal that there should have been "a lot more debate" on the measure.
* * *
There already is some bad blood between Congress and the commission. In another part of the Feeney Amendment, Congress limited the number of judges who can serve on the panel to three—a slap at the commission that stung many judges.

How bad is the blood involved? According to Groner, the Federal Judges Association is apparently counseling mutiny:

Another alternative for the commission is to openly defy Congress, dropping the next move squarely back in the legislature's hands.
That's the approach proposed by the Federal Judges Association, an independent group that represents more than 90 percent of the nation's 850-odd federal district and appeals judges.
The FJA told the sentencing commission in a July 31 comment that the Feeney Amendment should be repealed. It did not suggest any form of compliance with it.
"Change can be for the better. These changes were not. We believe that if the usual legislative process had been followed, this troubling amendment . . . would not have taken place," the FJA wrote.

The minimal amount of text of the FJA comment quoted by Groner does not give the impression that it suggested anything quite so dramatic, however. It's hard to believe that the FJA advised outright non-compliance. Unfortunately, the Federal Judges Association website does not appear to contain anything regarding its stance on the Feeney Amendment. The Sentencing Commission's site also does not appear to contain a copy of the FJA's comment.

[9] Howard Bashman also points to another article over at Law.com by Evan P. Schultz entitled Who's Hard On Sentencing? John Ashcroft May Be Targeting Judges And Prosecutors, But Congress Told Him To Do It. Schultz writes:

And this brings up the second point from the prevailing wisdom: that it's Ashcroft and the Justice Department that are off on a renegade rampage against the judges and prosecutors. Of course, they are on a rampage, but it's not renegade. It's the law, duly passed by Congress and signed by the president.

There is, of course, some merit to this contention. However, having laid out his plausible thesis, Schultz then proceeds to refute his own argument to a large degree:

Of course, this doesn't get Ashcroft off the hook completely. Justice loudly supported passage of the Protect Act, and might even have had a hand in crafting it. But Justice didn't turn that bill into law—Congress and the president did. Ashcroft is definitely an accomplice in helping dupe lawmakers into "fixing" a problem of lenient sentencing that doesn't exist (in 2001, it was the prosecutors who asked for 79 percent of the downward departures that the judges granted). But Congress and the president are guilty for pulling the trigger.
By the way, Congress is on the verge of considering another bill that Ashcroft is hyping on his current 10-city tour. It's the modestly named Victory Act (that's short for Vital Interdiction of Criminal Terrorist Organizations Act). Like the Protect Act and the sentencing guidelines, it will further limit judges' discretion in sentencing. Do you want to blame Ashcroft for it later, or stop Congress now before the lawmakers strike again?

Again, Schultz's point is well-taken, but it's clear that Ashcroft is a prominent part of the problem in this effort to quash judicial discretion in sentencing. The nation's top law enforcement officer can hardly be absolved of liability for pushing for the passage of certain laws just because he can play no formal role in their passage. And given his prior role as a U.S. Senator, it is not unlikely that he can and does play a very active informal role in pushing desired legislation. Certainly, his previous employment must impart him a certain additional access that an AG might otherwise lack in the legislative process.

2003-08-11T20:09:00.000-05:00

Belated Thanks:

Over the last week or so, my curmudgeonly musings have had a much wider audience, in large part due to links from Law.com and Glenn Reynolds. Thanks to both for lending me their megaphones. Weirdly enough, the two posts that attracted all this attention could not have been less related: Sex (Aug. 1, 2003) and Ashcroft (Aug. 7, 2003), unless, of course, one counts the latter's aversion to graphic depictions of the former.

Stuart Buck, From Huskies to Pipers, and Tainted Law have all registered their dissent from my assessment of Ashcroft. Contrariwise, Venkat Balasubramani, Will Baude and Life, Law, Libido seem to agree with my assessment. (But notwithstanding the third "L," LLL remains curiously silent regarding Ashcroft's war on pornography.) Meanwhile, Brain Fertilizer, On The Third Hand and Southwest Virginia Legal Blog have also drawn attention to my post on Ashcroft.

Professor Solum has also been kind enough to point to my post on deprivation of citizenship as a criminal sanction.

And last, but not least, thanks to Reality Checker and Susana Rosende for blogrolling my site.

2003-08-09T16:35:00.000-05:00

The Blogosphere's Collective IQ Just Went Up:

Professor Brian Leiter of my alma mater has started his own blog: The Leiter Reports. (Link via Legal Theory Blog.) Some time ago I wondered when Leiter was going to get the lead out and set up shop on the web. I'm glad to see that he has now done so. For those with a yen for law and philosophy, Leiter's blog is sure to be of interest.

2003-08-08T00:07:00.000-05:00

Deprivation of Citizenship as a Criminal Sanction:

Apropos of my recent criticism of John Ashcroft, see August 6, 2003 post, Virginia Postrel relays this intriguing bit from immigration-policy expert Paul Donnelly:

The Bush administration's spring fling to seek new powers against terrorism included something starkly worse than simply arrest without trial. Ashcroft's lawyers actually looked at stripping U.S. citizenship . . .
The reason this is a big deal is that it turns the Founding upside down. In the U.S.A., the individual is sovereign and "We, the People" rule. In other words, we invented citizenship. Unlike a subject, being a citizen can neither be imposed on someone, nor can it be taken away if lawfully acquired—although you can give it up, if you want. But this is not widely understood, which is why this extremely bad idea may not be dead.
Throughout the first part of the last century, Congress enacted a series of "expatriating acts," by which somebody would be considered to have given up their citizenship, even if they didn't want to: fighting in another nation's armed forces, or serving in its government, even just voting in its elections. Each of these has been thrown out by the courts, on the principle that it is the individual citizen who may choose to give up U.S. citizenship—and if they do not, as the Supreme Court said in 1968 over an American voting in Israel's elections: the U.S. government has "no power" to take it away.

Now, Mr. Donnelly may (or may not) be right as a matter of legal theory. Likewise, he may (or may not) be right as a matter of policy. (In a portion of his e-mail to Postrel, excerpted infra, Donnelly asserts that the government's motives must be nefarious.). In some respects, he is unquestionably correct as to matters of declared constitutional law. Nonetheless, I am unconvinced that Donnelly is entirely correct in his constitutional assessment. Indeed, it seems that some of what Donnelly maintains is dubious or outright incorrect.

As a preliminary matter, it is unclear whether Donnelly is referring to a legislative proposal or a mere litigation strategy on the part of Ashcroft et al. Either way, without seeing the details of this proposed citizenship-stripping measure, it is not clear that it is as outrageous as Donnelly suggests.

The case that Donnelly has in mind was actually decided in 1967: Afroyim v. Rusk, 387 U.S. 253 (1967). In a 5-4 decision (that overruled a prior 5-4 decision), the Court's majority stated the following:

The fundamental issue before this Court here, as it was in Perez, is whether Congress can consistently with the Fourteenth Amendment enact a law stripping an American of his citizenship which he has never voluntarily renounced or given up. . . .
* * *
First we reject the idea expressed in Perez that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen's citizenship without his assent. This power cannot, as Perez indicated, be sustained as an implied attribute of sovereignty possessed by all nations. Other nations are governed by their own constitutions, if any, and we can draw no support from theirs. In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship. Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or those that are necessary and proper to carry out the specifically granted ones. The Constitution of course, grants Congress no express power to strip people of their citizenship, whether in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power. And even before the adoption of the Fourteenth Amendment, views were expressed in Congress and by this Court that under the Constitution the Government was granted no power, even under its express power to pass a uniform rule of naturalization, to determine what conduct should and should not result in the loss of citizenship. . . .
* * *
Although these legislative and judicial statements may be regarded as inconclusive and must be considered in the historical context in which they were made, any doubt as to whether prior to the passage of the Fourteenth Amendment Congress had the power to deprive a person against his will of citizenship once obtained should have been removed by the unequivocal terms of the Amendment itself. It provides its own constitutional rule in language calculated completely to control the status of citizenship: 'All persons born or naturalized in the United States . . . are citizens of the United States . . . .' There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.
* * *
Because the legislative history of the Fourteenth Amendment and of the expatriation proposals which preceded and followed it, like most other legislative history, contains many statements from which conflicting inferences can be drawn, our holding might be unwarranted if it rested entirely or principally upon that legislative history. But it does not. Our holding we think is the only one that can stand in view of the language and the purpose of the Fourteenth Amendment, and our construction of that Amendment, we believe, comports more nearly than Perez with the principles of liberty and equal justice to all that the entire Fourteenth Amendment was adopted to guarantee. Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world—as a man without a country. Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.

Afroyim, 387 U.S. at 256-68.

The opinion is worth reading in its entirety, including the thoughtful dissent authored by Justice Harlan (and joined by Justices Clark, Stewart, and White). As a matter of originalist interpretation, the dissent may have the better of the argument. The prior precedent to the contrary that Afroyim overruled was Perez v. Brownell, 356 U.S. 44 (1958), an opinion authored by Justice Frankfurter—no judicial lightweight. These were close and controversial cases.

In addition, it is not altogether clear that the Donnelly's citizenship-stripping measure would be governed by Afroyim. Consider, for example, Breyer v. Meissner, 214 F.3d 416 (3d Cir. 1999). The Breyer court lays out the question for decision and its answer as follows:

This case involves the interpretation of our immigration laws as they apply to Johann Breyer, a naturalized citizen who claimed, when faced with denaturalization, that he had been entitled to American citizenship by birth through his American-born mother. The statutes governing Breyer's claim to citizenship are § 1993 of the Revised Statutes of 1874 and a 1994 amendment to the Immigration and Naturalization Act ("INA"), § 101(c)(2) of the Immigration and Nationality Technical Corrections Act ("INTCA"). In our review, we consider whether these provisions discriminated against Breyer's mother on the basis of gender, in violation of the equal protection clause of the Fifth Amendment to the Constitution. Because we find that they did discriminate against the mother, we must then determine what effect Breyer's subsequent actions during World War II had on his claim to American citizenship.
Johann Breyer was born in Czechoslovakia on May 30, 1925, to an American mother and a foreign father. As a young man, Breyer joined the Waffen SS, a Nazi paramilitary group, and ultimately became a member of the SS Totenkopfsturmbanne (Death's Head Battalion). As a member of the Death's Head Battalion, Breyer guarded concentration camps [including Buchenwald and Auschwitz] . . . .
* * *
. . . [O]n March 28, 1952, the United States Displaced Persons' Commission certified Breyer eligible for a visa as a displaced person. Breyer then applied to immigrate to the United States as an alien under the Act. He was granted an immigrant visa and entered the United States in May 1952. Breyer filed a petition for naturalization in August 1957. On November 7, 1957, Breyer was naturalized as a United States citizen.
* * *
On April 21, 1992, the United States filed a five-count complaint against Johann Breyer in the United States District Court for the Eastern District of Pennsylvania under § 1451(a) of the INA, as amended, 8 U.S.C. §§ 1101 et seq. The complaint was filed to revoke Breyer's naturalized United States citizenship on the grounds that it was illegally procured (Counts I, II, III, IV) or was procured by concealment or willful misrepresentation (Count V). The government sought to denaturalize Breyer because of his service as an armed SS guard at Buchenwald and Auschwitz.
Breyer conceded that he was ineligible for displaced person's status as a result of his war time activities. Nevertheless, he contended that he could not be denaturalized because, when he entered this country in 1952, he did so lawfully, as a United States citizen. Breyer asserted that he derived citizenship at birth through his mother who, he claimed, was born in Philadelphia, Pennsylvania.
* * *
The District Court held a four day bench trial to determine the birth place of Breyer's mother and found that she had, indeed, been born in the United States. . . .
* * *
. . . We have determined that Johann Breyer should have been entitled to American citizenship from the date of his birth, but is he still so entitled? Even though we conclude that § 101(c)(2) is constitutionally invalid, must we ignore Johann Breyer's activities during World War II and the impact that the decisions he made during that period may have had on his present claim to citizenship?
Let us begin our further consideration by reviewing the reason for which Congress amended the statute in 1994 in the way in which it did. Congress based the exclusionary provisions of § 101(c)(2) on denaturalization, deportation or exclusion grounds, rather than on the grounds for expatriation. The reason for this is that a denaturalization, deportation, or exclusion action against an alien can be taken without any proof that the alien intended to commit the acts that qualify him for the sanction; there is no intent requirement. On the other hand, the Supreme Court has held that a citizen cannot be expatriated without an intent to surrender United States citizenship. See Terrazas, 444 U.S. at 270, 100 S. Ct. 540. The decision in Terrazas grew from the holding in Afroyim v. Rusk, 387 U.S. 253, 87 S. Ct. 1660, 18 L. Ed. 2d 757 (1967), in which the Supreme Court ruled that Congress could not take away citizenship simply on the basis of certain actions a citizen may have taken, without a citizen voluntarily renouncing it or giving it up. Arguably, Breyer could not have intended to surrender his American citizenship if he did not realize that he was entitled to it. Nevertheless, we see an important distinction between the facts of cases like Terrazas and Afroyim and the situation before us.
Beys Afroyim was born in Poland and naturalized as an American citizen when he was a young man. After 34 years he went to Israel where he voted in an election for the Israeli Knesset. When he went to the American Embassy to renew his passport, the Department of State refused to do so on the ground that he had lost his American citizenship by virtue of § 401(e) of the Nationality Act of 1940, which provided that a citizen would "lose" his citizenship if he voted in a political election in a foreign state. Afroyim challenged this decision, and ultimately the Supreme Court held that Congress could not deprive him of his citizenship unless he voluntarily relinquished it.
Laurence Terrazas held American and Mexican citizenship from the time of his birth in the United States as the son of a Mexican citizen. When he was a student in Mexico at the age of 22, he executed an application for a certificate of Mexican nationality "expressly renounc[ing] United States citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of the United States of America . . . ." 444 U.S. at 255, 100 S. Ct. 540. He obtained a certificate of Mexican citizenship that provided that he had "expressly renounced all rights inherent to any other nationality, as well as all submission, obedience, and loyalty to any foreign government, especially to those which have recognized him as that national." Id. Terrazas later brought suit against the Secretary of State for a declaration of his U.S. nationality. The government argued that Terrazas had knowingly sworn allegiance to Mexico and renounced his allegiance to the United States. The Supreme Court held that when a statutory expatriating action is proved by a preponderance of the evidence, it is constitutional to presume the action to have been voluntary "until and unless proved otherwise by the actor." Id. at 270, 100 S. Ct. 540. If the actor succeeds in proving the act was not voluntary, he will not be expatriated. If he fails, the court must determine whether the expatriating act was performed with an intent to relinquish citizenship. Id. Terrazas's case was remanded for the District Court to make further findings on voluntariness.
The acts committed by Johann Breyer are very different from those of Afroyim and Terrazas. During World War II, when Germany was at war with the United States, Breyer joined first the Waffen SS and then the Death's Head Battalion. The Waffen SS was a voluntary organization. The Death's Head units were composed of volunteers from other SS units. Apparently, Breyer may have made a knowing and voluntary decision to join each of these groups. Some historians assert that such a commitment was knowing and voluntary. One commentator has described the situation as follows:
So anyone who joined the SS later than 1934 must have known what he was doing. Naturally the extent to which a man realized the significance of his action depended in some degree upon his educational level and political background; a yokel joining a Totenkopf Sturmbann in 1937 is not to be equated with a barrister entering the SD at the same period. Nobody joining the SS could of course know that he would later be ordered to take part in organized mass murder; nevertheless anyone must have been aware that he was joining an organization where he would have to carry out illegal orders. By the mere fact of joining he was accepting certain principles and practices which could not but lead on occasions to culpable action. No one of course who lives under a totalitarian system can be sure that he will not one day be forced into a tragic situation for which he may be held guilty. Entry into the SS, however, implied that a man accepted this risk with his eyes open. The nearest to an exception was the man who joined the SS-Verfugungstruppe; it was, of course, part of the praetorian guard but nevertheless its training was clearly exclusively military and it had nothing to do with the political duties of the Allgemeine SS, with political police matters or with concentration camps. Everybody, however, who joined the SS was forsaking the sphere in which obligations were simply those of the normal loyal citizen and entering that in which the ideological order was paramount. By the mere fact of joining the SS every man was giving his ideological assent and declaring himself ready to do more than his duty.
The above description of the knowing commitment made by a member of the Death's Head Battalion, during a period when Germany was at war with the United States, demonstrates a loyalty to the policies of Nazi Germany that is wholly inconsistent with American citizenship. Although when he took his oath of allegiance first to the Waffen SS and then to the Death's Head Battalion, Johann Breyer was not aware of his right to American citizenship, one could conclude that he voluntarily made a commitment that, had he known of this right, clearly would have repudiated it. Afroyim and Terrazas do not deal with such a situation where a knowing commitment to a foreign nation at war with the United States is accompanied by voluntary acts that plainly disclaim any allegiance to the United States and the political principles for which it stands. We conclude that Johann Breyer may have made such a disclaimer of allegiance to the United States by a voluntary enlistment in the Waffen SS and then again in the Death's Head Battalion.
Under Terrazas, Breyer has the burden of proving that his expatriating acts were not voluntary. If these acts were voluntary, however, the court must determine whether they were performed with an intent to relinquish citizenship. We conclude that a voluntary oath of allegiance to a nation at war with the United States and to an organization of that warring nation that is committed to policies incompatible with the principles of American democracy and the rights of citizens protected by the American constitutioncan organization such as the Death's Head Battalion—is an unequivocal renunciation of American citizenship whether or not the putative citizen is then aware that he has a right to American citizenship.
We will, therefore, remand this case to the District Court to make further findings concerning the circumstances under which Breyer joined the Waffen SS and the Death's Head Battalion to determine if his actions constitute a voluntary and unequivocal renunciation of any possible allegiance to the United States of America, a renunciation made in a time of war against the United States that demonstrated an allegiance to Nazi Germany and a repudiation of any loyalty—citizen or not—to the United States. Cf. Perez v. Brownell, 356 U.S. 44, 68, 78 S. Ct. 568, 2 L. Ed. 2d 603 (1958) (Warren, C.J., dissenting and stating that some actions "may be so inconsistent with the retention of citizenship as to result in loss of that status."). On remand, the District Court must determine whether Breyer's acts constitute such a renunciation.

Breyer, 214 F.3d at 418-31 (emphasis added).

The Breyer opinion makes it clear that voluntary actions other than an express declaration may suffice to deprive one of American citizenship. The Breyer court also notes that 8 U.S.C. § 1481, a statute that remains on the books, deprives American citizens of United States nationality for a variety of reasons, including military service in behalf of a state that is engaged in hostilities with this country, treason, and bearing arms against this country, among other things. Moreover, the Breyer court's citation to the Perez dissent, the logic of which the Afroyim Court purports to adopt at one point in its opinion, and distinction of Afroyim and Terrazas make it clear that the jurisprudence of expatriation is less than clear-cut. And while it may be true that expatriation must be "voluntary" in some sense, the caselaw also gives the impression that "voluntariness" may often be constructive in nature (i.e., the commission of certain conduct may suffice to demonstrate voluntary reninciation of citizenship). The aformentioned statute actually establishes a presumption of voluntariness with regard to the expatriating conduct that it enumerates.

Therefore, without knowing more about the measure that Donnelly is referring to, it is difficult to discern its constitutional propriety. Whatever its details, it may have been intended for individuals like Yaser Esam Hamdi and John Walker Lindh, in which case the measure might have been considerably less controversial in light of Breyer. For background information on Hamdi and Lindh, see Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) and United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Vir. 2002).

As a final note, as noted above, Donnelly attributes the worst sort of motives to Ashcroft et al. for contemplating expatriation for terrorism-related offenses, positing that:

. . . [T]here is no need to strip citizenship from anybody, except: 1) to hide incompetent police work, or 2) to deport 'em to countries which might torture 'em.
Think about it. What OTHER reason could there be for the Attorney General to seek authority to take citizenship away from somebody who acquired it lawfully (for instance, by being born here) and doesn't want to give it up?

Well, there may be no need to do so from the standpoint of utility (e.g., deterrence). However, the justification for criminal sanctions is not exclusively utilitarian in nature. The rationale for certain punishments is often retributive. Such a motivation is hardly out of place with the Rhadamanthine approach of Attorney General Ashcroft. One might disagree with said approach. However, it does not seem to me that Ashcroft's motives regarding expatriation must ineluctably be sinister.

A FURTHER THOUGHT:

It is also notable that Perez is expressly overruled by Afroyim, but Afroyim does not explicitly overrule another important prior case on this topic: Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

In Mendoza-Martinez, a 5-4 decision in which Justices Stewart, Harlan, White, and Clark also dissented, the Court held that the expatriation of two individuals for avoiding military service was unconstitutional. Justice Goldberg, writing for the majority, framed the issue as follows:

We are called upon in these two cases to decide the grave and fundamental problem, common to both, of the constitutionality of Acts of Congress which divest an American of his citizenship for '(d)eparting from or remaining outside of the jurisdiction of the United States in time of war or . . . national emergency for the purpose of evading or avoiding training and service' in the Nation's armed forces.

Mendoza-Martinez, 372 U.S. at 146.

Both individuals enjoyed citizenship by virtue of their birth in the United States. Id. at 147, 149. Having so framed the issue, the Court reasoned that:

Citizenship is a most precious right. It is expressly guaranteed by the Fourteenth Amendment to the Constitution, which speaks in the most positive terms. The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far- reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government.
* * *
We recognize at the outset that we are confronted here with an issue of the utmost import. Deprivation of citizenship—particularly American citizenship, which is 'one of the most valuable rights in the world today,' Report of the President's Commission on Immigration and Naturalization (1953), 235—has grave practical consequences. An expatriate who, like Cort, had no other nationality becomes a stateless person—a person who not only has no rights as an American citizen, but no membership in any national entity whatsoever. 'Such individuals as do not possess any nationality enjoy, in general, no protection whatever, and if they are aggrieved by a State they have no means of redress, since there is no State which is competent to take up their case. As far as the Law of Nations is concerned, there is, apart from restraints of morality or obligations expressly laid down by treaty . . . no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals.' 1 Oppenheim, International Law (8th ed., Lauterpacht, 1955), s 291, at 640. The calamity is '[n]ot the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever . . . .' Arendt, The Origins of Totalitarianism (1951), 294. The stateless person may end up shunted from nation to nation, there being no one obligated or willing to receive him, or, as in Cort's case, may receive the dubious sanctuary of a Communist regime lacking the essential liberties precious to American citizenship.
* * *
. . . We have come to the conclusion that there is a basic question in the present cases, the answer to which obviates a choice here between the powers of Congress and the constitutional guarantee of citizenship. That issue is whether the statutes here, which automatically—without prior court or administrative proceedings—impose forfeiture of citizenship, are essentially penal in character, and consequently have deprived the appellees of their citizenship without due process of law and without according them the rights guaranteed by the Fifth and Sixth Amendments, including notice, confrontation, compulsory process for obtaining witnesses, trial by jury, and assistance of counsel. . . .
* * *
We hold §§ 401(j) and 349(a)(10) invalid because in them Congress has plainly employed the sanction of deprivation of nationality as a punishment—for the offense of leaving or remaining outside the country to evade military service—without affording the procedural safeguards guaranteed by the Fifth and Sixth Amendments. . . .

Id. at 159-66.

Thus, the Mendoza-Martinez Court, addressing a different expatriation provision, declared it unconstitutional on far narrower procedural grounds. Implicit in this ruling is that such a penalty might be exacted if the procedural niceties are observed.

Justices Douglas and Black concurred in the result, but reiterated their view “that Congress has no power to deprive a person of the citizenship granted the native-born by § 1, cl. 1, of the Fourteenth Amendment.” Id. at 186. Justice Brennan separately concurred and evinced mixed feelings about expatriation as a form of punishment. Id. at 187-97.

Interestingly, Afroyim explicitly overrules Perez. Afroyim, 387 U.S. at 268. However, Afroyim is far more ambiguous regarding Mendoza-Martinez. The majority merely cites it for the proposition that cases decided after Perez had cast doubt on Perez’s legitimacy. Afroyim, 387 U.S. at 255 & n.5. Martinez-Mendoza receives no more attention from either the majority or the dissent. Thus, it too creates some ambiguity where the doctrine of expatriation is concerned.

As detailed supra, the Afroyim majority frames the question that it addressed rather broadly, but it would not be atypical for a subsequent court to limit Afroyim to its facts (and the actual statutory provisions at issue therein), if it is so inclined. (Subsequent courts always have more to say about the precedential value of prior opinions than the courts that originally issued them.) In the wake of the events of the September 11 attacks and all that has followed in their wake, courts might just be more amenable to expatriation under the right circumstances. Indeed, Breyer indicates that courts were amenable to expatriation well before September 11.

2003-08-07T01:24:00.000-05:00

Does the AG Think That the Courts Should Be Deprived of All Discretion in Sentencing?

The Washington Post reports that the Attorney General has proposed to closely monitor “downward departures” in sentencing by federal District Judges. (Link via Howard Bashman.) In particular the Post notes:

The Ashcroft memo amended a section of the United States Attorneys' Manual that previously said federal prosecutors had to report to the department only those sentences that prosecutors had objected to and wanted to appeal. In the new directive, U.S. attorneys were told to report all "downward departure" sentencing decisions that meet certain criteria in nine categories.
The effect of the change will be to shift most decisions on whether to appeal a sentence that is less than called for in sentencing guidelines from prosecutors in the field to Justice Department lawyers here [i.e., Washington D.C.].

What was that about conservatives favoring localized decision-making? (See UPDATE III below.)

The Post continues:

Justice Department lawyers, who had championed even tougher measures to limit judicial discretion in sentencing, said the change was needed because of the increasing willingness by some judges to ignore sentencing guidelines. That nearly all departures from the guidelines resulted in more lenient sentences further angered Ashcroft and his conservative-minded attorneys, officials said.
"Some judges felt they were not bound by any guidelines," one senior Justice Department official said. "They were ignored out of some sense that the judge was not beholden to them. . . ."

Horsehockey. If this were the case, then DOJ lawyers could and would have appealed these decisions and had them reversed on appeal. Yet, as the Post notes, the DOJ has chosen to appeal very few downward departures cases:

According to statistics compiled by the U.S. Sentencing Commission, 35 percent of the sentences handed down in federal court in fiscal year 2001 fell below the range set in the sentencing guidelines. Almost half of those involved plea bargain agreements or other cases of "substantial assistance" to prosecutors, but 18 percent of the "downward departures" were for other reasons. Federal judges imposed sentences that exceeded the guidelines in less than 1 percent of the cases; the Justice Department appealed 19 of more than 11,000 "downward departure" sentencing decisions.

The statistics referenced are available here.

Section 5K of the United States Sentencing Guidelines (“U.S.S.G.”) governs departures. Section 5K2.0 specifically states, in part, that:

Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guidelines, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." Circumstances that may warrant departure from the guideline range pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The decision as to whether and to what extent departure is warranted rests with the sentencing court on a case-specific basis. . . .

The Commentary to this section further elaborates that:

The United States Supreme Court has determined that, in reviewing a district court’s decision to depart from the guidelines, appellate courts are to apply an abuse of discretion standard, because the decision to depart embodies the traditional exercise of discretion by the sentencing court. Koon v. United States, 518 U.S. 81 (1996). . . .

In other words, the U.S.S.G. condones the very concept of departures. Trial judges’ discretion is naturally limited by the Guidelines themselves and appellate caselaw, but it is not subject to the political judgments of executive branch officials. What is particularly irksome about Ashcroft’s conduct is the fact that (a) the legislative branch may (and does) render statutory penalties for criminal offenses more stringent at will, and (b) the real discretion under the Guidelines is exercised almost entirely by government prosecutors rather than judges. Congress sets the statutory penalties for crimes. The U.S. Sentencing Commission—a creation of Congress—promulgates the Guidelines. Government prosecutors decide what cases to bring, what to charge, and which defendants to plead out. A judge walks into any given sentencing bound by these external constraints.

This sort of behavior is of a piece with Ashcroft’s tenure as Attorney General, however. As Steven Brill previously reported, Ashcroft was equally ham-fisted in promoting a draft proposal of what, after much paring, eventually became the Patriot Act:

Beyond his predilection to want to control as much as he could, some on his own staff thought that another reason Ashcroft hadn’t “scrubbed” the bill beforehand was that he didn’t appreciate the significance of the prosecutor-written laundry list he was proposing. Although Ashcroft is a graduate of the highly regarded University of Chicago Law School and a former Missouri state attorney general, even some of his own deputies at Justice were surprised by how uninterested he was in the niceties of the law. One veteran staffer recalls that through six different meetings on this bill and another key legal initiative, he had never once heard Ashcroft cite a legal case and had watched him blanch when someone in the room cited a case, as if that person was discourteously speaking another language. Whether it was lack of interest or lack of intellectual firepower, the Attorney General seemed not to appreciate the complexities of the constitutional issues he was dealing with.

Incredibly, one of the proposals of this Patriot Act prototype was apparently the indefinite suspension of the writ of habeas corpus, notwithstanding Article I, § 9 (“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”).

The U.S.S.G. are prolix and complex in order to deal with the myriad situations that are bound to come before the federal courts in sentencing. But the Guidelines themselves make note of their own potential shortcomings in addressing the nuances of every case. One might argue that the “downward departure” statistics are being gathered for purely informational purposes. However, Chief Justice Rehnquist, no liberal, has written that such efforts might also “amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties.”

Given the highly individuated nature of departures, it seems dubious that the mere compilation of departure statistics might tell an outside observer much about any particular case. That is, I think that Rehnquist's expressed concern accurately identifies what is going on here.

UPDATE I:

I see that I am not the only one who is less than pleased with the Attorney General's "downward departure" memorandum.

UPDATE II:

And if the foregoing was not enough, now Professor Reynolds points out that Ashcroft is pining for the enactment of supposed anti-terrorism legislation that includes at least one provision having little or nothing to do with the subject.

I also note that Robert of The Academy has denounced Ashcroft's "downward departures" memorandum, albeit in a most cursory and unedifying fashion. The permalink is not functioning—S.N.A.F.U.—so I will quote Robert's post in full:

F***ing Idiot!
'nuff said.

The problem is that this really is not "enough said." When Democrats lambasted Ashcroft in the process of his confirmation, I largely disregarded their criticism because it was so often over-the-top and poorly reasoned. It had that President-as-Fuhrer quality to it that criticism of Bush so often takes on. For that matter, Ashcroft is still subject to some truly ridiculous and reflexive (i.e., knee-jerk) attacks. However, since becoming Attorney General, Ashcroft has established a genuinely unflattering record. I have come to believe that Ashcroft is unfit for the position that he occupies. At this point, a reasonable and lengthy bill of particulars for Ashcroft's resignation or removal merely requires formal compilation.

I take it that this is not a unique opinion. Conservatives like myself, libertarians like Reynolds, and liberals(?) like Robert increasingly have nothing kind to say about the present Attorney General or his job performance. However, Robert's knowing "'F***ing Idiot!" criticism risks submerging legitimate, thoughtful criticism of the AG into the unreasoning fever-swamps of the Left—where the fact that Ashcroft is either stupid or evil (or both) is taken as a matter of faith that requires no arguments. That would be a shame, because Ashcroft's record is worthy of condemnation and said criticism deserves a wider audience.

UPDATE III:

Professor Muller has rebutted the notion that Ashcroft's plan will shift decision-making power to Washington. Professor Volokh concurs with Muller's assessment. Let the record stand corrected. I withdraw my criticism on this particular point. (Link via How Appealing.)

Not everyone is conceding this point, however. As noted in this story in The New York Times:

Nicholas M. Gess, a senior Justice Department official in the Clinton administration, said the policy fit a pattern in the Ashcroft Justice Department of centralizing decision-making in Washington, a trend also seen in death penalty cases.
That trend, he said, reverses efforts by former Attorney General Janet Reno to give federal prosecutors more authority by eliminating the need for department-level authority in dozens of types of cases.
Mr. Gess said the new policy would give officials in Washington much more power over the process for deciding whether a sentence should be appealed.

UPDATE IV:

Professor Solum has weighed in and notes the theoretical bind that exists both with and without the constraints imposed by the Sentencing Guidelines. Although I appreciate the good professor's concerns, I think that it is important to recognize that the Guidelines themselves account for this theoretical tension via the "departure" provisions, allowing higher and lower sentences to be exacted in appropriate cases. As the statistics cited above reveal, half of the downward departures are undertaken at the behest of the government. In other words, judges downwardly depart on their own motion no more and no less (approximately) than the government itself requests downward departures. So what Ashcroft is effectively saying is: "How dare judges deviate from the Guidelines under their own steam! All discretion should rest with the prosecution." Thanks, but no thanks.

UPDATE V:

The actual text of Ashcroft's memorandum may be viewed here. (Link via Robert of The Academy. Robert also notes that Ashcroft's quotation of the Chief Justice is rather selective. (Blogger's/Blogspot's links continue to be, well, "bloggered," so see Robert's Friday, August 8, 2003 post.)

UPDATE VI:

As reported in The New York Times, a former federal District Judge who resigned from the bench on account of the nature of sentencing these days shares one of my criticisms of Ashcroft's new approach:

John S. Martin, a federal district judge in Manhattan who announced in June that he would retire in part because he saw the judiciary's independence as threatened, said the Justice Department policy was "based on the erroneous premise that a lot of judges around the county are just going off the reservation."
He added: "The problem is that a bunch of bureaucrats in Washington looking at the statistics won't know the facts of these cases. They're taking a very mechanistic approach to the whole process."

(Link via Life, Law, Libido.)

UPDATE VII:

A reader of Life, Law, Libido wrote in to the propritor of that site to inform him that the PROTECT Act modified that standard of review for downward departures from abuse of discretion to de novo review. This is only partially true, however. The Act does so modify the standard of review for "child abduction and sex offenses." See § 401. (And a good thing too, because as we all know, those District Judges are notriously soft on these sorts of crimes!) But the standard of review for all other downward departures appears to remain unchanged. Or so it seems to me after a casual glance. Anyone have a different take on the matter?

[Note: I have taken a closer gander at the PROTECT Act only to find that my initial thoughts were mistaken. See my August 11, 2003 post for the details.]

UPDATE VIII:

Stuart Buck and Justin of From Huskies to Pipers think that Ashcroft's proposal is innocuous enough. Buck offers this observation:

Moreover, Ashcroft's decision has literally nothing to do with "judicial independence." From the article, it appears that he is merely trying to make sure that DOJ appeals sentences that fail to meet the Sentencing Guidelines. And DOJ has every right to appeal in those cases. I'm not sure how anyone could reasonably conclude that asking life-tenured judges on a U.S. Court of Appeals to reverse an erroneous decision by a life-tenured district judge is an attack on "judicial independence."

Justin offers this rationale in support of the new policy:

This brings us back to the reason why I, at first reading, supported the Ashcroft decision: That measures to reign in activist judges can, over time, bring back some legislative power to the legislature.
It would be interesting to see, though, exactly what percentage of these so called departures from the minimum guidlines involve drug convictions. These cases, given the current movements toward decriminalization of certain drug violations (which I support),are clearly a matter of judges attempting to re-write the law.

I think that both Buck and Justin miss the point, however. The Sentencing Guidelines specifically provide for the discretion that judges exercise via downward departures. (See main text above.) So when Ashcroft et al. attack the employment of downward departures, they are, in effect, questioning the integrity of sentencing judges, asserting that trial judges are refusing to apply the law as written, abusing their discretion. If this were the case, then the remedy would be simple: appeal. Yet the statistics reveal that the DOJ has appealed almost no downward departure cases. So if the DOJ's case is so strong regarding the abuse of Section 5K, why haven't they pursued it in the appellate courts?

My intuition and experience tells me that it's because the supposed abuse is generally not there. Although one can certainly find some instances of inappropriate sentencing, see, e.g., United States v. Reynolds, Nos. 01-1202L, 01-1253XAP, 2001 WL 1486198, at *3 (2d Cir. 2001) (unpublished opinion); United States v. Blackwell, 127 F.3d 947, 957 n.9 (10th Cir. 1997), by and large District Judges are faithful to the law; most sentencing errors are made in good faith. And frankly, if and when it is otherwise, then Congress has no one to blame but itself. After all, the Senate has the final say on who serves on the district courts.

UPDATE IX:

Stuart Buck continues to defend Ashcroft. This time, he takes aim at a New York Times editorial that chastises the Attorney General. I am not going to bother defending the Times, which is generally unthinkingly hostile to any conservative Republican. However, Buck's thesis strikes me as question-begging. Buck maintains that the DOJ is well within its rights to appeal erroneous sentencing decisions, which is certainly true. But as Buck acknowleges, the DOJ has always been in charge of such decisions, and has always enjoyed the right of appeal. Yet it has chosen not to appeal in most cases. So what then does Buck think that this new policy signifies?

Buck also makes this rather interesting claim:

Intimidation? What does that mean? These are judges who have life tenure, after all. They are about as far beyond the reach of "intimidation" as any federal employee could possibly be. . . .

One wonders if Buck recalls Judge Baer's difficulties. See here, here, and here. It seems to me that federal judges, while quite insulated, are hardly immune from unwarranted meddling by the legislative and executive branches.

2003-08-05T15:14:00.000-05:00

Courting Opposition?

In late July, Supreme Court of California Justice Janice R. Brown was nominated to the Court of Appeals for the District of Columbia Circuit. One wonders whether and how her dissent in Sharon S. v. Superior Court of San Diego County will affect her confirmation prospects. Law.com provides a summary of the lengthy opinion:

Second-parent adoptions, widely used by same-sex couples to form families, were declared legal Monday by the California Supreme Court.
The 6-1 ruling legitimizes as many as 20,000 adoptions that had been placed in limbo by a lower court decision and brings California in line with 21 other states that have validated second-parent adoptions.
"Our explicitly recognizing their validity will prevent uncertainty, conflict and protracted litigation in this area, all of which plainly are harmful to children caught in the middle," Justice Kathryn Mickle Werdegar wrote for the court.
"Unmarried couples who have brought a child into the world with the expectation that they will raise it together," she held, "should be on notice that if they separate the same rules concerning custody and visitation as apply to all other parents will apply to them."
The decision rated raucous cheers from gay groups . . . .

Justice Brown writes the following in dissent:

III. THE MAJORITY TRIVIALIZES FAMILY BONDS
* * *
. . . The relationship of parent and child is the most fundamental bond humans share and the influence of family in determining what kind of people we become is profound. Society has a considerable stake in the health and stability of families, because it is upon the families—what Burke calls “the little platoon—that we rely [on] not only to nurture the young but to provide the seed beds of civic virtue required for citizenship in a self-governing community. [The family teaches us to] care for others, [and] to moderate . . . self-interest . . . .” (Berns, The First Amendment and the Future of American Democracy (1976) p. 222.) All tasks which will be hampered if the family is simply “a collection of individuals united temporarily for their mutual convenience and armed with rights against each other.” (Schneider, Moral Discourse and the Transformation of American Family Law (1985) 83 Mich. L.R. 1803, 1859.) The “arduous, long-term educational process [of raising a child] requires not a spirit of contractualist autonomy, but a spirit of adult commitment and . . . sacrifice.” (Hafen, Individualism and Autonomy in Family Law: The Waning of Belonging (1991) 1991 BYU L.Rev. 1, 30.)
The majority, irretrievably committed to its the-more-parents-the-merrier view of parenthood, declines to interpret section 8617 to effectively preclude a child from having more than two parents; and at oral argument Annette’s counsel asserted no such limit should exist. Such a position is consistent with the stunted view of parenthood as purely ministerial and economic—signing consent slips and providing health insurance. But this is the least part of being a parent, as anyone who has ever seen a newborn resting securely in her father’s hand can understand; and anyone who has sat up late at night awaiting the safe return of a newly minted teenage driver knows. The all-encompassing nature of parenthood renders eminently reasonable any legislative provision requiring that adopting parents share a common residence with each other and the adopted child. (See Fam. Code, § 297, subd. (b)(1).) Parenthood requires more than a telephone and a checkbook.
* * *
The law permits single individuals to adopt a child on their own because one parent is better than none. It does not follow, however, that two unrelated parents are better than one. The majority cites the legislative policy that “‘adoption or guardianship is more suitable to a child’s well-being than is foster care’” (maj. opn., ante, at p. 26, fn. 16, quoting Welf. & Inst. Code, § 396), as adoption is a more permanent relationship than foster care. However, if the birth parent has a relationship with a second parent, and then a third, and then a fourth, the child may be worse off than if the birth parent had simply raised the child alone. The choice in second parent adoption cases is not between adoption and foster care. The birth parent in such circumstances is willing and able to continue expressing parental responsibility. If the two adults are uncertain whether the second parent will be a permanent resident of the household, the adoption ought to wait until they are ready for that commitment.
There is a long-standing tension within the law as to whether legal standards should reflect ideal behavior or simply the mean.3 The majority, however, refuse to impose even a standard of the mean. Couples who raise children together do predominantly have a formal legal relationship with each other. It is not a standard that individuals cannot reach absent heroism, and every Californian adult has access to such a relationship. Today’s decision maximizes the self-interest and personal convenience of parents, but poorly serves the state’s children who deserve as much stability and security as legal process can provide.

2003-08-04T18:20:00.000-05:00

Norms, the Law, and File-Sharing:

Venkat Balasubramani has made a point that, from my perspective, seems very commonsensical:

More to the point: why does everyone insist on treating the RIAA as different from any other intellectual property owner, such as say, Kate Spade? [I haven't seen any coherent reasons for this differentiation.] The animosity seems to be based on some perceived inequity in the structure of the music publishing and distribution business. Slamming the RIAA for enforcing its property rights is not going to change this structure. . . .

I have made similar points on this subject before. But I gather from the blogosphere's general reaction to the contrary that, Balasubramani and I are in the minority. We are definitely in the minority with regard to the portion of the populace that is most likely to engage in file-sharing (i.e., adults aged 18-29).

Professor Solum has previously suggested an answer to Balasubramani's question:

. . . I may be naive, but I think that part of the industry's problem is that file sharing is not like theft. Everyone understands that consumption of intellectual property is not "rivalrous" in the economic sense. When I copy an MP3 file, I don't preclude you from copying or listening to the your own version of the work (whether on CD, record, MP3, or reel-to-reel tape.), but when I steal your car, I preclude your use of the resource. That's why social attitudes towards filesharing are different than social attitudes towards shoplifting CDs. The case for intellectual property rests on a more complicated story about incentives.

Of course, a similar argument might be made regarding books. After all, if I were to check out a book from the library, reproduce it in .pdf, and make it freely available over the Internet, I also would not have precluded anyone from the use of the work. One might make the same case for various software that is routinely traded over the Internet as well. (As an aside, it seems to me that the relentless focus on the RIAA in the file-sharing debate skews its content and the views of the merits. Software, for example, is also much traded, and focus on it might render the debate more sober and clear-headed.) So Professor Solum's distinction strikes me as being potentially very far-reaching.

Although Solum may be right in his assessment, I cannot say that I am terribly comforted by it. As Professor Solum also notes, the rationales for intellectual property rights may well rest on a less firm foundation than traditional property rights. However, the former rights unquestionably exist as legally recognized and enforceable rights. Given the public's views, as documented by the Pew Internet & American Life research that Solum referenced, much of the American society is apparently nullifying copyright law in the same fashion that a jury might nullify an unwelcome statute. Disregard for the law and for the recognized property rights of others produce the same reaction in me that fire evoked in Frankenstein's monster: abject fear. To paraphrase, Phil Hartman's rendition of the monster: Lawlessness bad!

And for this reason, I am more than a little worried about file-sharing. I also worry about the potential for Solum's distinction to corrode property norms in general over time. What else will not be regarded as theft in the future notwithstanding the positive legal enactments of a democratically elected government?

UPDATE I:

Anthony Rickey has posted a thouhtful rejoinder, in which he focuses on the economic reasons that the present music distribution system, to which the RIAA is slavishly devoted, makes no sense. (He also seconds Solum's intangible property distinction.) I do not necessarily disagree with Rickey's general analysis. Financially, it behooves the RIAA et al. to come to terms with new technologies rather than mindlessly opposing them. However, the RIAA is well within its legal rights to adopt the latter course of action. It seems to me that Rickey's argument makes a very good case for altering these legal rights as a matter of policy, but I am unconvinced that it justifies wholesale violation of the law. Consumers are well within their rights to vote with their wallets by refusing to purchase the overpriced products that are offered for sale; however, in the case of file-sharing, it seems to me that consumers are voting with the RIAA et al.'s pocketbook.

UPDATE II:

Rickey continues to argue that file-sharing is not the moral equivalent of theft. And Solum has another thoughtful post; this one relates the views of Kim Weatherall, who in turn discusses Lawrence Lessig's and Randy Barnett's take on the issue.

I think that all of these folks make points that are worthwhile. Readers interested in this topic ought to read the posts in their entirety. However, I must object to one particular line of argument that Rickey dwells upon more than once:

Again, I'm all for respect for the law. In an ideal world, I'd hope people would change the law, and then their behavior. But to act like copying music, in other words breaking a 'property' right that is nothing more than a created fiat of law, is tantamount to actual piracy, or even the theft of a physical object, is a moral leap that I'm not willing to make. Is this political disobedience? Yes. But are those who are making this into the death of the rights of property, or turning this into a case of 'respect for the rule of law' stressing themselves over nothing? Oh yes most certainly. (emphasis added)

This "fiat of law" business rings hollow to me. Although some cogently maintain that certain rights exist quite apart from positive legal enactments as a matter of legal theory, in a more immediate, practical sense all property rights exist by fiat of law, whether legislatively or judicially created. Adverse possession, for example, is a mere fiat of law. So many legal rules are. But they are enforceable. If "fiat of law" is an affirmative defense, then the entire tax code, in all of its byzantine granduer, would be unenforceable. Until repealed, I see little reason why intellectual property laws should be treated differently. The issue of moral (as opposed to legal) culpability is more complex . . .

UPDATE III:

As always, Tech Law Advisor is invaluable on this topic. The Advisor comments on an article by Professor Marci Hamilton that Rickey has critiqued, and provides links-o-plenty on the subject in another post.

UPDATE IV:

Timothy Sandefur helpfully points out that I misunderstood his position on the foundation for property rights. In the process of clarifying his own views, he discusses James Madison's views of copyright, which are sure to be of interest to those interested in the copynorms debate. It's a genuinely fascinating post.

2003-08-01T00:09:00.000-05:00

Attorney-Client Sexual Relations:

Ken Lammers writes:

You just aren't supposed to have sex with your client. And you especially aren't supposed to have sex with your client while he's in jail.

He's referring to this story:

SEATTLE, Washington (AP)—An [sic] lawyer who admitted having sexual contact with her murder-defendant client in a jailhouse conference room has agreed to a one-year suspension, the Washington State Bar Association said Monday.
* * *
A jail officer said he saw public defender Theresa Olson, 43, having sex last August with Sebastian Burns, 26, who is charged with three counts of aggravated first-degree murder.
* * *
Her attorney, David Allen, said she admitted to sexual contact, not sexual intercourse. "She wants to put this behind her and move on," Allen said Monday.
As part of the agreement, Olson agreed to undergo psychological evaluation and accept treatment during her suspension and probation. She was also fined $1,000.

Believe it or not, there is actually published caselaw on this very scenario. See Comm. On Prof'l Ethics and Conduct of the Iowa State Bar Ass'n v. Durham, 279 N.W.2d 280, 281-86 (Iowa 1979) (issuing public reprimand to female public defender for amorous conduct with inmate client in state penitentiary visiting room). Indeed, there is a growing body of caselaw on the issue of sexual contact with clients in a variety of contexts. However, the notion that lawyers and clients may never, under any circumstances, become romantically or physically involved is actually quite controversial.

For a thorough synopsis of the debate over relatively new rules in this area of attorney ethics, see Christian F. Southwick, Ardor and Advocacy: Attorney-Client Sexual Relations and the Regulatory Impulse in Texas and Across the Nation, 44 South Texas Law Review 307 (2002). Although listed as published in 2002, the article does not yet appear to be on electronic services like Westlaw or Lexis. Tarlton Law Library indicates that this is due to the fact that the issue was more recently published than the publication date indicates. (Link via The Blawg Review.)

UPDATE:

David Giacalone has posted a thoughtful commentary on rules concerning sex with clients over at ethicalEsq?. His thoughts are much worth reading. He also provides a helpful link to the Seattle Post-Intelligencer for those readers who desire further details on the original story that spawned this discussion. Ken Lammers has also followed up a bit on this discussion, and has excerpted some Virginia State Bar disciplinary cases on the subject.

2003-07-31T22:23:00.000-05:00

**Our Work Really Is Cut Out for Us:**

One of my favorite sources of news is the weekly feature News of the Weird. This week, editor Chuck Shepherd passes along this tidbit, among others:

On May 25 in the town of Baqubah, Iraq, Ms. Iman Salih Mutlak, 22, was gunned down by U.S. soldiers, who said she relentlessly charged at them, despite orders to halt, intending to explode the 10 grenades she was carrying. While some Iraqis treated her as a courageous martyr, her family in Zaqaniyah, Iraq, was disgusted with her, not because they are pro-American, but because she shamed them by leaving home without permission. Said her father, to an Associated Press reporter in May, "Had she returned home, I would have killed her myself and drunk her blood." [Augusta (Ga.) Chronicle-AP, 5-31-03]

Nation-building? How about civilization-building?

On a more serious note, it does seem that our work really is cut out for us in Iraq.

For readers desiring a brief explainer of the forces that led to our pre-Iraq predicament, I recommend Bernard Lewis's The Crisis of Islam. Under two-hundred pages in length, Lewis's pithy tome provides a great deal of information and food for thought. And, on an entirely egocentric note, I was gratified to see my own analysis of the Crusades confirmed:

The same period saw a first awakening of interest among Muslims in the Crusades, which had aroused remarkably little concern at the time they occurred. The vast and rich Arabic historiography of the period duly records the Crusaders' arrival, their battles, and the states that they established but shows little or no awareness of the nature and purposes of their venture. The words Crusade and Crusader do not even occur in the Arabic historiography of the time, in which the Crusaders are referred to as the infidels, the Christians, or most frequently, the Franks, a general term for Catholic—and later also Protestant—European Christians, to distinguish them from their Orthodox and Eastern coreligionists. Awareness of the Crusades as a distinctive historical phenomenon dates from the nineteenth century, and the translation of European books on history. Since then, there is a new perception of the Crusades as an early prototype of the expansion of European imperialism into the Islamic world. A more accurate description would present them as a long-delayed, very limited, and finally ineffectual response to the jihad. The Crusades ended in failure and defeat, and were soon forgotten in the lands of Islam, but later European efforts to resist and reverse the Muslim advance into Christendom were more successful, and initiated what became a series of painful defeats on the frontiers of the Islamic world.

Bernard Lewis, The Crisis of Islam 50-51 (2003).

And, while I am recommending books, for those interested in first-hand accounts of the Crusades, allow me to commend two to your attention: Odo of Dueil's chronicle of the Second Crusade and Joinville's account of the Seventh Crusade.

2003-07-30T22:55:00.000-05:00

**The Prison Rape Elimination Act Is a Poor Substitute for Real Reform:**

Professor Reynolds has compiled an informative set of links regarding prison rape. He also notes recent efforts to eliminate this despicable feature of incarceration. The good professor writes that:

. . . until recently prison rape was the subject of late-night comedy and jokes about dropping the soap. But that’s changing now. Congress has passed the Prison Rape Elimination Act of 2003, which—while not really living up to that rather grandiose name—does suggest that someone is beginning to take the problem seriously. Joanne Mariner has written a column explaining the act, and I agree with her that it’s really a fairly modest piece of legislation whose real significance is in its acknowledgment of the problem. But it’s hard to do anything about a problem until you acknowledge it.

Mariner relates that:

Notwithstanding its ambitious title—an improvement over its previous, dismayingly modest title of Prison Rape Reduction Act—the new law will not put an end to rape in prison. The main focus of the legislation is on studying prison rape, collecting statistics relating to the problem, and developing national standards for the prevention and punishment of prison rape. Its enforcement mechanisms are relatively weak. (Indeed, the fact that the bill passed Congress unanimously should be proof enough that it lacks vigorous enforcement mechanisms, a failing that the text of the bill confirms.)

To the extent that the problem is the lackadaisical attitude of correctional authorities themselves—and Mariner’s pithy article suggests that this at the very least an aggravating factor—this legislation may prove significant. However, I am less than optimistic for several interrelated reasons. Bear in mind at the outset that the problem is already a full-blown crisis. Richard D. Vetstein, Note, Rape and AIDS in Prison: On A Collision Course to a New Death Penalty, 30 Suffolk U. L. Rev. 863, 863 (1997) (“In United States’ correctional institutions, instances of sexual violence occur at a staggering rate. Some researchers estimate that of the forty-six million Americans who will enter the criminal justice system at some point in their lives, ten million will be raped while in custody.”)

The prison population is expanding. Much of the expanding prison class is made up of nonviolent criminals who will have to coexist with far less savory offenders. The profile of the average prison-rape victim isn’t really a matter of dispute: the weaker, less violent offenders generally serve as the prey of larger and more antisocial convicts. Thus, present demographic trends in incarceration are a formula for even greater tragedy. See Vetstein, supra, at 864 (“Statistics suggest that the rise in our nation's incarceration rate will increase violence inside prison walls . . . .”).

I have no idea how the legislation in question intends to reliably gather statistics. Mariner writes of the state of denial (or dissemblance) in which the prison establishment dwells on this issue. Given the legal standard for recovery against prison officials for turning a blind eye to prison rape, see Farmer v. Brennan, 511 U.S. 825, 834-847 (1994), it is hardly likely that prison authorities wish to be made aware of the full extent of the situation or to assist in the creation of the sort of documentary evidence that would prove detrimental (to the institution or its employees) at trial. Moreover, there are serious disincentives to self-reporting of sexual assaults that occur behind bars quite apart from the usual shame and self-loathing that frequently accompany an attack. See Vetstein, supra, at 870 (noting that “few victims of prison rape report these offenses in fear of retribution from their attackers”).

In addition, while the complacency (or complicity) of prison authorities is an aggravating factor, it is hardly the cause of most inmate-on-inmate sexual violence. As Justice Thomas has noted:

Prisons are necessarily dangerous places; they house society's most antisocial and violent people in close proximity with one another. Regrettably, "[s]ome level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do . . . unless all prisoners are locked in their cells 24 hours a day and sedated."

Farmer, 511 U.S. at 858-59 (Thomas, J., concurring in the judgment) (quoting McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991)).

Hence, in some measure, prison rape is a consequence of the embrace of penological alternatives to more extreme forms of punishment. Regarding the advent of America’s preference for incarceration, see Jon M. Sands, Book Review, Federal Lawyer, June 2003, at 50 (reviewing Stuart Banner, The Death Penalty: An American History (Harv. Univ. Press, 2002)); see also The Honorable Stephen N. Limbaugh, Jr., The Case of Ex Parte Lange (Or How the Double Jeopardy Clause Lost Its “Life or Limb”), 36 Am. Crim. L. Rev. 53, 77 (1999). Ironically, incarceration—a departure from the European legal tradition of capital punishment—was originally conceived as a more humane manner of dealing with offenders. Now, given the rates of HIV in our nation’s penitentiaries, a term of imprisonment may well amount to a death sentence for many due to the prevalence of prison rape. See Vetstein, supra, at 865 (“The rate of HIV infection continues to rapidly increase among our country's incarcerated. . . . When AIDS and rape converge within our prisons, many inmates face an unintended form of capital punishment . . . .”).

Perhaps, I am unduly pessimistic, but I see little promise in the present legislation. Systemic reform of our prison system, and our approach to crime and punishment in general, is required.

2003-07-29T23:16:00.000-05:00

Moral Dilemmas in Adjudication:

Introduction
With reference to my prior posting on the Pryor nomination and the role of personal morality in judging, a reader writes in with the following observation:

. . . One may as well wonder whether Mr. Pryor has any genuine beliefs if he is willing to uphold law on abortion when he thinks it murder.

I have previously criticized this view, and I continue to think that it is deeply mistaken. The truth is that judges must routinely uphold laws that they find to be less than desirable. It is also not uncommon for judges to be faced with situations in which they must vindicate either (a) laws that they consider immoral, or (b) particular applications of the law that they regard as leading to an unjust result.

The Federal Sentencing Guidelines and Other Thought Experiments
Consider, for example, the United States Sentencing Guidelines, which govern the sentences meted out to criminal defendants. There is no end to the discontent that district court judges express regarding these prolix provisions. Although the purpose of the guidelines was supposedly to eliminate disparities in sentencing and render sentences for like offenses uniform, it is a commonplace that the Sentencing Guidelines lead to unreasoned and unjust results with some frequency. See, e.g., United States v. Davern, 970 F.2d 1490, 1502 (6th Cir. 1992) (Merritt, Chief J., dissenting) (“The facts surrounding his arrest and conviction illustrate with clarity the unjust and ultimately indefensible system effectuated by the application of the Sentencing Guidelines.”), cert. denied, 507 U.S. 923 (1993); United States v. Shepherd, 857 F. Supp. 105, 111 (D.D.C. 1994) (“This Court, along with many others, has repeatedly expressed its dismay at the restraints Congress and the Sentencing Commission have hoist upon sentencing courts in recent years.”), remanded by 102 F.3d 558 (D.C. Cir. 1996).

The same observations could be made with reference to statutorily mandated minimum sentences. See United States v. Harris, 536 U.S. 545, 570 (2002) (Breyer, J., concurring) (“During the past two decades, as mandatory minimum sentencing statutes have proliferated in number and importance, judges, legislators, lawyers, and commentators have criticized those statutes, arguing that they negatively affect the fair administration of the criminal law, a matter of concern to judges and to legislators alike.”). Indeed, the Sentencing Guidelines and mandatory minimum sentences are sometimes thought to interact in a less than benign fashion. See Shepherd, 857 F. Supp. at 108 (“As indicated above, the interplay between the statutory minimums, the sentencing guidelines, and the actions of the law enforcement officer in this case lead to an entirely unjust result, and one that, in practical terms, leaves the determination of the defendant's sentence in the hands of police officers.”).

Nonetheless, there is no question that individual judges may not reject the results dictated by the Guidelines on the basis of their own personal sense of justice:

While we find much to agree with in the District Court's general sentiments regarding the inflexibility of the Guidelines, we cannot let stand the District Court's patent rejection of the appropriate Guideline provisions. "[T]he Guidelines, having the force and effect of law, are to be construed as if they were a statute." A district court has no authority to disregard or fail to apply a Guideline provision, even if it believes that they dictate an unjust result. As we stated in United States v. Koczuk, . . . "dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range."

United States v. Reynolds, Nos. 01-1202L, 01-1253XAP, 2001 WL 1486198, at *3 (2d Cir. 2001) (unpublished opinion) (internal citations omitted); see also United States v. Blackwell, 127 F.3d 947, 957 n.9 (10th Cir. 1997) (“Although the district court now feels its original sentence of Mr. Blackwell was unjust, the district court's subjective opinion of justice and fair play do not allow it to evade the requirements of the sentencing guidelines.”).

So what is a district judge to do? Resign? Recuse himself (or herself) in cases that are morally objectionable?

But the problem is broader than even the Sentencing Guidelines suggest. Many, including sitting judges, find various substantive federal criminal laws to be morally offensive. Are serious libertarians precluded from being nominated to the federal bench due to their objections to the Drug War, for example?

Perhaps, one might distinguish such moral conflicts from the one supposedly faced by Pryor on the ground that abortion concerns a matter of life and death, whereas mere sentencing issues do not. However, I do not think that such a distinction is very tenable. Sentencing a defendant to incarceration is among the gravest functions of the judiciary. Our penal institutions are grim facilities in which the coarsest brutalities are a way of life. I take it that liberals and conservatives alike are ready to concede that the modern prison system is almost entirely bereft of rehabilitative value, that penitentiaries are little more than dehumanizing warehouses. For those who value life, the sentencing of even a single individual is a grave matter, one fraught with moral content.

Perhaps, one might concede that such a distinction is untenable and instead distinguish Pryor and his abortion views as a matter of scale. That is, one might contend that whatever decisions Pryor might make regarding abortion might affect millions, whereas sentencing issues are less far-reaching. However, as an empirical matter it is not clear to me that Pryor, as a circuit judge, will have the opportunity to have such far-reaching influence over abortion policy. All serious abortion issues ultimately lie with the Supreme Court. Moreover, the statistical likelihood of Pryor, as one circuit judge out of many, hearing such a case is attenuated. Whereas, it is far more likely that one (or more) of the innumerable criminal sentencing appeals will reach any Eleventh Circuit panel that he happens to sit on. In short, the likelihood that Pryor will even be in a position to be morally conflicted regarding abortion while on the bench is not overly great.

But, of course, one need not rest content with the Sentencing Guidelines as an example. If one requires an issue that more immediately involves issues of life and death, one might also consider issues like the death penalty. Under the present regime, the death penalty remains perfectly constitutional under the federal Constitution. Are those who are morally disquieted (especially those who are very disquieted) to be excluded from the federal bench?

The Stricter Scrutiny Counterargument
My correspondent responds that:

It is not my view that moral disagreement with law should preclude service as a judge. . . . I do think that a nominee who sincerely believes that abortion is murder is faced with a very difficult choice, as is a nominee who believes capital punishment is immoral. It is appropriate to subject such persons to more searching questioning because they come into the process announcing that they believe that there are compelling claims against enforcement of the law. But that is a very long ways from disqualification or presumptive disqualification.

This is a much more nuanced view than the aforementioned notion that moral conflicts pose a bar to confirmation. However, I nonetheless think that it entails a flawed conception of what the confirmation process ought to consist of. First, this sort of stricter scrutiny, when filtered through the politics of the present incendiary nomination and confirmation process is likely to be strict in theory and fatal in fact. Second, as a practical matter, every judge has such conflicts. No serious lawyer cannot point to a statute or bit of the common law that he (or she) does not find morally repugnant. Every judge faces moral conflicts on the bench, inasmuch as no single judge concurs with the entirety of the United States Code, the federal rules of evidence and procedure, or the present state of constitutional law. Only an amoral judge would be altogether free of such conflicts. I take it that no one is suggesting that an amoral judiciary is possible let alone desirable.

Conclusion
None of this says anything about the merits of the Pryor nomination. Although I have followed the broad outlines of the Pryor debate, and have regarded some of his detractors’ accusations in detail, I do not have an opinion on the nomination itself. One hardly need be pro-Pryor to regard assertions that those whose moral beliefs conflict with the present state of the law are either (a) unfit for confirmation, or (b) ought to be subject to a higher standard of review than other nominees as little more than political objections masquerading as concern for judicial integrity.

UPDATE:

Will Baude has a nice post on this subject in which he concurs, in part, with my sentiments. He offers the following choice anecdote:

. . . [L]ast Spring, an interviewer asked me, "You write on your application that you want to be a Federal Judge, but as a Libertarian you must believe the drug war is immoral. So how would you be able to sentence non-violent drug-users to ten, fifteen-year minimum sentences?" I replied with an answer a lot like The Clerk's, about the interest of the rule of law and the fact that every judge had to put aside some of his beliefs. The interviewer shot back, "Well what if the penalty was death?" Immediately, I responded, "If the law imposed the death penalty for non-violent drug possession, it would be time to resign my judgeship."

No doubt, every individual (even Pryor) has such a moral breaking point, a point at which their own moral values compel dissociation from an enterprise that runs afoul of said judgments. However, I do not think this fact is particularly useful in the confirmation process precisely because of its universality. That is, this is a facet of character that all nominees possess. It is only, perhaps, an issue if and when one can establish that a given nominee's breaking point lies at an unacceptably low threshold (i.e., that a given nominee will generally allow his personal moral judgments to outweigh legal considerations).

Therefore, it is, perhaps, valid to inquire as to whether the empirical evidence demonstrates that Pryor has such a low threshold, though any past conduct qua evidence is of limited probative value given that he has never occupied the judicial role and been subject to its obgligations in his past legal decision-making. But it is not valid to assert that the mere existence of moral misgivings about the state of the law is itself suspicious or evidence of a character defect that disqualifies one from judicial service.

Moreover, I think it is telling that Baude's unidentified interviewer had to resort to a counterfactual and highly implausible hypothetical scenario in order to elicit Baude's concession that there is a point at which he would be forced to resign due to personal moral judgments. It is telling because of the interviewer's apparent need to manufacture circumstances other than those prevailing in the present legal order. That is, most nominees, being creatures of their time and place, are sufficiently at peace with the prevailing state of affairs that present circumstances do not compel them withdraw from governmental roles in order to preserve their own sense of moral integrity.

With the foregoing observations in mind, I get the sense that what is driving much of the suspicion regarding Pryor's nomination is the perception that his views on abortion are extremist in nature. While his rhetoric on the topic has, perhaps, been immoderate, his actual position is shared by a significant minority of our polity. Three members of the current Supreme Court would overrule Roe v. Wade today, if they could. And a majority of the Court seems to embrace the notion that some regulation of abortion rights is constitutionally valid, a position that also enjoys much support among the populace. Hence, it is difficult to view Pryor's personal moral position itself as cause for concern.

Finally, for those not yet sufficiently convinced, I would like to suggest two analogies for examining the issue of personal moral conflicts with public and professional duties:

First, consider, the recent military campaign in Iraq, which roused considerable moral objection from a sizable minority of the populace. No doubt, this moral disapproval was shared by some members of the armed services and members of the professional government bureaucracies (e.g., State Department and Department of Defense personnel). Were such dissenters all morally bound to refuse to obey orders or resign in the face of war? Are those who failed to do so morally suspect or worthy or condemnation?

Second, consider the moral worth of lawyers, a case that is particularly relevant to the topic at hand. Lawyers frequently represent clients and positions with which they disagree on ethical or moral grounds (e.g., Federal Public Defenders) Although this sometimes leads to accusations that attorneys are mere mercenaries or hired guns, zealous advocacy of a client is one of the touchstones of the Anglo-American legal system. Is the whole enterprise amoral or outright immoral? Are attorneys who subordinate their own sense of right and wrong, which is generally all attorneys at one time or another, amoral or immoral? Doesn't it say something about the nature and validity of the Pryor-is-morally-conflicted-and-therefore-suspect argument that all lawyers and judges are so conflicted, and that our very legal and governmental systems are built on foundations that contemplate and legitimate these very conflicts?

2003-07-29T18:50:00.000-05:00

Many Thanks:

Thanks to After Abortion, The Agitator, Bag and Baggage, The DC Law Experience, Legal Theory Blog (links here and here), Marstonalia, and Three Years of Hell (links here and here).

Thanks also to frequent debating partners Will Baude and Timothy Sandefur for links here and there along the way. And I would also like to extend my thanks to Cicero's Ghost for blogrolling me.

I make it a point to thank those who link this site, because I'm always flattered by the praise that a link represents, even when criticism is involved. I feel privileged that others find my musings here worth reading and commenting on. The same goes for e-mail correspondence. I genuinely appreciate the feedback. Thanks to all.

2003-07-28T12:42:00.000-05:00

Six Feet Under & Abortion Revisited:

Radley Balko, the proprietor of The Agitator, has an interesting guest comment over at National Review Online today about the moral disquiet evinced regarding abortion on HBO's hit show Six Feet Under. Although Mr. Balko and I do not share the same political orientation, his comment is very similar in its conclusions to something I wrote on the topic awhile back.

2003-07-27T23:01:00.000-05:00

The Travails of Being a "Lady Lawyer":

People who use phrases like "lady lawyer" express contempt for their subject, unwittingly or not. Ms. Morality, who came to my attention by way of Denise Howell, effectively relates how she was treated as a "lady lawyer" by an unnamed big firm:

“Well, you did take time off to get married, and then you came back pregnant,” responded the managing partner when I asked why I hadn’t received any new assignments in eight months. I appreciated the frankness, but found it hard to believe that a large New York law firm could be so blatantly negative towards a pregnant associate. What of the firm’s promises that retention of women associates was a priority and indeed the subject of a new and improved “diversity committee”? This story has no happy ending. My experience as a second-year pregnant associate was akin to that of a leper in a public square – ignored, shunned, rejected.
* * *
Early in my second year I married the man of my dreams and we decided to start a family. My bad. After missing a couple days with morning sickness, I naively decided to announce my pregnancy. The response: silent disregard. I was immediately taken off one of my major cases with the head of the department. Nothing was ever said to me, I just stopped receiving assignments and communications regarding the case. On a trip to court another partner instructed that I sit behind the bar while a first year accompanied him to the table.
My other work also disappeared without notice or explanation. I was left with a document review that other associates refused to work on. Other second-year associates in the department were litigating preliminary injunctions, drafting pleadings, defending depositions and communicating with clients. I got no such opportunities. Whenever I asked why I was taken off my cases, I was told to be grateful. Or was given no answer at all. One partner said, “If you’re not planning on sticking around after the pregnancy, you should leave now, because the partners are upset and you’ll lose valuable references.” The words cut, and I didn’t know how to respond.

It doesn't surprise me that a large firm might fail to treat a female associate like a human being. Treating any associate like a human being seems to pose an insurmountable challenge for the big firms. I worked for a large firm before attending law school, and notwithstanding the fact that many partners were excellent attorneys and fine human beings, the firm as a whole was completely tone deaf on matters of effective personnel management. The willful cluelessness of my law firm interviewers during my second year is what originally got me interested in applying for a federal clerkship; I figured that any fate was preferable to being a first-year associate—no matter what the pay differential might be.

Side Note to Law Firms:
In the age of self-publication (i.e., blogging), it would require little effort to document the sheer mindlessness of the law firm interview experience—in an entirely anonymous fashion. And there is little reason not to name names, not just firm names but the names of those individuals involved. (The stories I could tell.) Truth is generally a defense to libel. Perhaps, firms should rethink who they send to represent the organization. At a minimum, sending folks who hit on the female interviewees—something that multiple others assured me occurred more than once during the course of second-year interviews—probably ought to be discontinued.

Ms. Morality, I think, nicely sums up to impossible position that women occupy in the professional workforce. I can understand why male co-workers might grimace at any perceived "special treatment" afforded to female attorneys. And, as a practical matter, it does seem improbable that many women can carry a full associate workload and simultaneously successfully carry their responsibilities as new mothers. (Law firms are certainly skeptical in this regard. Several female law students related to me that their marital status and plans to have children were frequent topics of interest during interviews.) But presumably these same professional males, often increasingly married to professional women, want to enjoy the benefits of family life without necessarily consigning their wives to involuntary domesticity too.

I do not know how to reconcile the competing tensions involved here. But a nice start might be to (a) lower the oppressive billable hours requirements that associates are currently subject to, and (b) lower the ridiculously inflated starting salaries that, in part, are used to justify the oppressive hours imposed on new attorneys. If more reasonable hours and salaries were part of the bargain for all associates, then it would not be nearly as difficult to be flexible with new mothers.

2003-07-27T21:09:00.000-05:00

Thanks:

Thanks to Matt Conigliaro and James Dedman for adding me to their blogrolls. Dedman is a Baylor University School of Law graduate; Conigliaro is a Florida appellate attorney whose blawg focuses on Florida law and the Eleventh Circuit Court of Appeals.

I have begun to notice that I am more and more frequently being included on very short lists of blawgs, listed with blawgs that inspired me to set up my own shingle on the Internet. I'm not sure that I have done anything to deserve such esteem, but whatever it is that I have done, I will endeavor to keep doing it.

Thanks also to Collabowrite for linking to my previous commentary on the ethical issues of blawgging and blogging by federal law clerks.

2003-07-25T14:14:00.000-05:00

Principles, Religious and Otherwise, In the Confirmation Process and On the Bench:

Some consider the controversy over Bill Pryor’s nomination to the federal bench to be a consequence of anti-religious bigotry. Or, at the very least, some maintain that the views of Pryor’s critics preclude the confirmation of sincere conservative Christians, Catholics in particular. Professor Adler and Ken Lammers, among others, have espoused this latter view.

Professor Marston employs remarks made Justice Scalia in an attempt to discredit the notion that there is anything anti-Catholic about the opposition to Pryor’s nomination:

Is Scalia "anti-catholic"? In a speech at Georgetown last year that I attended, Justice Scalia said that if he thought that it was against his Catholic beliefs to support the death penalty, then the only honorable course would be to resign from the bench. This statement elicited a round of criticism of Scalia's understanding of Catholicism. This is predictable given the contentiousness of the issue and the mutually incompatible stances that self-professed Catholics take on the question of capital punishment.
Again, Scalia's position is that all catholics who believe that the death penalty is incompatible with their faith—as they understand it—shouldn't be on the bench. I realize that there is a difference between saying that a certain belief should cause someone to resign from the bench and saying that a certain belief could be a valid criteria for judicial selection, but I'm not sure that the difference is all that significant.

I do not think that this characterization does Scalia’s position any justice, however. Scalia wrote a piece in First Things back in May of 2002 that clarified when he thought a Catholic who accepted the Church’s supposed anti-death penalty teaching ought to resign:

I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the “living Constitution,” who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the “living Constitution” has such attraction for us judges.)

Antonin Scalia, God’s Justice and Ours, First Things, May 2002, at 17-21.

In other words, Scalia does not think that sincere practicing Catholics are unfit for the bench. He merely thinks that such Catholics cannot let their private moral views serve as a substitute for the Constitution. Judges may not abrogate laws on the basis of their religious beliefs; they must subordinate their beliefs to the law. Those who cannot bring themselves to abide by this principle must resign. The nub of Scalia’s argument appears to be the rather non-controversial observation that this is a nation of laws and not of men.

Professor Marston believes that Pryor is not capable of subordinating his personal beliefs while on the bench, and that it is this view among Democrats that has led them to oppose Pryor’s nomination:

If you believe that abortion is murder, that there is a God who will punish murderers, that U.S. law permits abortion, that U.S. law binds judges, that judges must permit abortion in order to "follow the law," and thus that judges are morally co-responsible for abortion, then you should not sit on the federal bench. If Pryor really wants to be a judge, one of those things has to give. It is entirely appropriate for Democrats to believe that one of them will give—namely, that Pryor's professed ability to "follow the law" will prove to have been an overstatement. The interesting thing is that the Democratic position actually takes Pryor’s religious commitments seriously: if Pryor really holds the beliefs on abortion that he says he holds, and if he is really a pious, anti-abortion Catholic, then he would have to be sophistic, hair-splitting, or lack integrity in order to serve on the federal bench.
None of this is to say you can't be an anti-abortionist judge. You just have to take a different view of the judicial responsibility to "follow the law," or a different view of what "following the law" means—different from Pryor's apparent view—in order to be one.

As with Scalia’s views, I am not certain that Professor Marston has characterized Pryor’s opinions on this matter in the most accurate fashion. Whatever the case may be, I am flummoxed by the notion that Democrats on the Senate Judiciary Committee are particularly concerned with the rule of law. As related by Timothy Sandefur:

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

Not only was Pregerson confirmed, Democrats seem not to have questioned whether he should remain on the bench in the wake of the Harris matter. And this was hardly the last act of judicial rebellion by Judge Pregerson in the name of conscience.

So my question is this: if Democrats are, in fact, acting out of principle in the manner suggested by Professor Marston, why is it that their “principle” only seems to compel them shoot down judicial nominees put forward by the other party? From my vantage point this looks more like politics than principle.

UPDATE I:

Professor Marston writes to clarify his views on the matter, and offers this bit:

The choice for the judicial role (and against what is perceived to be the moral evil) is a choice that is bound to be psychologically burdensome, however, and it is one that a devout person might feel some regret over at some point in his or her career. And I think that we are justified in questioning the moral integrity of someone who is willing to subordinate (avowedly) deeply held religious beliefs to some concept of the judicial role for the purposes of maintaining this particular secular government. This world—and its courts and judges—will pass away, but you've got to live with God for eternity.

Although I am not inclined to generally accept the criticism that opposition to Pryor amounts to opposition to any sincere Catholic, I think that Professor Marston's clarification verges on such a position, because Marston's view transforms the religious beliefs of judicial nominees into a test of their integrity—where willingness to subordinate their own private beliefs to the rule of law is viewed as a vice. In practice, I think that Marston's thesis is utterly unworkable. By his standards, no one who possesses a strong moral conviction contra the death penalty is fit to serve on the bench given the present state of the law. Notwithstanding my many disagreements with the jurisprudence of erstwhile Justice Brennan, I thought he was eminently qualified for the bench.

I think the willingness to follow the law in the face of one's own moral misgivings is a virtue, not a vice. It does not signal a lack of integrity, so much as intellectual and moral modesty. These forms of modesty are not just virtues really, but rather prerequisites. They are, in some measure, what stands between us and government by Platonic guardians.

UPDATE II:

Mike at Begging to Differ is not having any of this business, insisting that there are very good reasons for opposing the Pryor nomination on the merits. Meanwhile, Ken Lammers is standing by his judgment that practicing Catholics need not apply where federal judgeships are concerned.

2003-07-24T23:14:00.000-05:00

The Nature and Origin of Ethics:

Matt Evans writes:

In his column urging his fellow atheists to unite under the more attrative name of Brights, Richard Dawkins offered an example of how a bright might explain his world view to the uninitiated:
A bright is a person whose world view is free of supernatural and mystical elements. The ethics and actions of a bright are based on a naturalistic world view.
Mr. Dawkins is mistaken here, however, as there are no ethics in naturalism. Naturalism is an acceptance of what is, and ethics is the domain of what should be. There is no way to bridge the is/ought gap without referencing an extra-natural source. If a Bright accepts moral absolutes, such as "it is wrong to kill Jews for being Jewish," he does so by faith. Naturalism cannot take him there. It cannot show him that it is wrong to kill Jews for being Jewish.

This sounds an awful lot like the position of adherents of natural law with reference to legal positivism.

Although it is a law school verity, I am somewhat reluctant to unqualifiedly embrace the premise that an ought can never be derived from an is. Much of Burke’s horror at the French Revolution was premised on its unthinking destruction of venerable practices and institutions. See generally Edmund Burke, Reflections on the Revolution in France (1790). Burke did not abjure reform, but thought that it ought to be enacted cautiously, deliberately, with due respect for tradition. Although this is not quite the assertion of an ought from an is, the notion that longstanding sociopolitical arrangements recommend themselves somewhat by sheer virtue of their longevity comes close to the sentiment. Burke’s circumspect approach to change suggests that the present order at least deserves the benefit of a doubt and amounts to a presumption that what is says something about what ought to be.

Of course, there are some very real limits to such a presumption. The institution of slavery enjoyed a substantial historical pedigree. Yet few today would argue that its lengthy existence is an argument in its favor.

I take it that Evans is contending that (a) arguments contra genocide, like arguments against slavery, must ultimately rest on some appeal to truths that exist separate and apart from ourselves, something apart from man-made enactments; and (b) positivistic systems of right and wrong are not ethics in some sense. Both contentions leave me a bit perplexed. What of utilitarianism? See John Stuart Mill, Utilitarianism (1863). Is not utilitarianism the essence of Martin Niemoeller’s oft-quoted rationale for resisting the Nazis?

In Germany they came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.

Bartlett’s Familiar Quotations 684 (John Bartlett & Justin Kaplan eds., Little, Brown & Co., 16th ed. 1992). What is it about such utilitarian considerations that Evans believes disqualifies them from constituting a moral philosophy?

Other Commentary:

Timothy Sandefur, much at variance from my utilitarian approach, argues that, “an ethics of reason is, indeed, possible.” I find the argument that Sandefur cites for this proposition to be somewhat inscrutable, however. Consider, for example, this bit from Ayn Rand:

My morality, the morality of reason, is contained in a single axiom: existence exists—and in a single choice: to live. The rest proceeds from these. To live, man must hold three things as the ruling values of his life: Reason—Purpose—Self-esteem.

If you can make much of this quote or the essay on objectivist ethics that follows, then you are a better man than I. Sandefur himself is more clear, but, in the end, Sandefur’s disquisition on reason qua ethics sounds much like Rene Descartes’s view that mathematical truths are innate to mankind and need only be unlocked from the prison of the human mind. Sandefur writes:

Human freedom can indeed be deduced from human thought; it is a self-evident truth. All human beings are equally human beings; they all possess the quality (rationality) which makes them human. That quality is incompatible with coercion, and, more importantly, that equality means that no human being is naturally entitled to dominate over other human beings. []At the very least, one who claims that right must prove his assertion that he has that right. . . .

Like all versions of natural law, I find this one unsatisfying for the reason specified by Ely. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 50 (1980) (“The idea is a discredited one . . . and for a good reason. ‘[A]ll theories of natural law have a singular vagueness which is both an advantage and disadvantage in the application’ . . . The advantage . . . is that you can invoke natural law to support anything . . . [t]he disadvantage is that everybody understands that.”).

Will Baude on the other hand views all moral claims as relative or arbitrary:

When I say "such and such is (morally) wrong," I don't mean to be attributing an empirical quality to it, like when I say "such and such is French." I also don't mean to be defining such and such or wrongness, as when I say "a bachelor is an unmarried man." Because of this, moral statements occupy an unusual realm. Sometimes, when people say "Such and such is wrong," they mean "such and such is contrary to the moral authority to which I subscribe." This might translate as "such and such is against the teachings of the bible as I understand them," or "such and such is against the teachings of John Stuart Mill as I understand them," or "such and such is against the teachings of my great aunt Kelly, as I understand them." Very well. But I don't particularly mean any of those things when I use moral phrases. There's nothing wrong with importing arbitrary premises into ones ethics, but one should be clear that that's what one's doing.
* * *
Thus, when I say Slavery is wrong, I'm implicitly saying "It is my personal feeling that slavery is wrong." I couldn't mean anything else; there's no neutral test or definition for determining a thing's wrongness, so wrongness must be based on a personal assessment, and it's incoherent to say "Slavery is wrong but I don't think so," for all of the reasons Wittgenstein describes. So slavery is wrong because it fills me with moral disgust. . . .

I also find Baude’s position to be untenable. Baude would have us believe that ethics, or morality, is a matter of mere opinion. Baude says tomāto; Sandefur says tomâto.

Professor Leiter once used ice cream as a vehicle for explaining this theory during my law school days. According to Baude's theory, moral propositions are like opinions on ice cream. Baude likes vanilla. Sandefur likes chocolate. Each marshals arguments for why one is better than the other. Baude cites the crispness, the refreshing quality of vanilla; Sandefur alludes to the comparative richness and creaminess of chocolate. Even if one structures these contentions like rational arguments, they are not. They are irrefutable and irrational feelings. Moral inclinations, like preferences in ice cream flavors, are matters of taste.

This argument is not altogether without appeal. However, it is has its limits. Let’s take a more extreme example. Let us suppose that Baude asserts the virtues of vanilla, Sandefur sings the praises of chocolate, and I trumpet the taste of feces. No, you didn’t read that wrong. Suppose solely for purposes of this very hypothetical scenario that yours truly is a coprophiliac. Is my preference equal to those of Baude and Sandefur? The mind bridles at such an assertion does it not? Can we truly say that there is no real difference between these three assertions? Doesn’t such a highly counterintuitive proposition require some sort of overriding rationale? That is, when a contention runs afoul of our instincts, much as when a reform runs counter to received custom, isn’t the burden of explanation that much heavier? I do not think that Baude has carried this burden.

POSTSCRIPT I:

Both Baude and Sandefur have additional commentary on this subject that is well worth reading. See their respective posts here and here.

POSTSCRIPT II:

I'm not sure whether Timothy Sandefur is unhinged or inspired, but he is certainly on a roll. His Ever-Readable Bloggificence has continued musings on this topic here, here, and here.

POSTSCRIPT III:

Professor Solum has weighed in with one of his characteristically lengthy and thoughtful posts. In particular, Solum notes the rather limited nature of Hume's original distinction between is and ought, and further notes that "Hume's is/ought argument is no longer taken as a settled point in metaethics."

POSTSCRIPT IV:

Professor Solum continues to speak ex cathedra on this issue. He has two more masterful posts here and here. The second of these posts contains numerous links to the observations of others. In addition, Solum helpfully points out a symposium on Hume and relays the thoughts of John Bogart on Hume as well. In yet another, Professor Solum directs readers to Brian Weatherson's remarks. In short, Legal Theory Blog is the place for one-stop reading on metaethics.

I must confess that, having read the thoughts of numerous others on this topic, I feel compelled to make a tactical withdrawal from this debate. As the great moral philosopher Harry Callahan once observed, "A man has got to know his limitations." And it's clear that I am a bit out of my depth, so I am just going to wade back into the shallow end of the intellectual pool. The debate is interesting (and terribly important), however. I wish that there was a primer on this field of inquiry.

2003-07-23T10:31:00.000-05:00

Modified Blogroll:

Well, I have been around long enough now to have compiled a rather unwieldy blogroll. Accordingly, I have modified the layout of my permalinks in an attempt to add some semblence of order. I have subdivided the blogroll into multiple categories:

(1) The Morning Papers: These are the blawgs that I read at the first available opportunity each day. They unfailingly keep me informed and entertained.

(2) Other Clerks: Self-explanatory.

(3) Notable Blawgs: These sites are all excellent and are frequently consulted by myself and others. The only thing that really separates these from the first category is the order in which I peruse them.

(4) Recent Additions: These are blogs that have recently come to my attention through their blogrolling of The Curmudgeonly Clerk. I'm not yet familiar enough with these to figure out where they belong yet, if indeed they belong in any of the foregoing categories.

(5) In Memoriam: This category is reserved for fallen comrades. May they rest in peace.

I'm not sure that I am completely satisfied with this arrangement. As with everything on this site, it is subject to further modification at the whim and caprice of yours truly.

2003-07-22T21:24:00.000-05:00

Sin City:

When I was in Vegas, I saw Dennis Miller and these guys. But I could have been doing this instead:

George Evanthes has never been hunting.
* * *
Now that he's living in Las Vegas, he's finally getting his chance to put on his camouflage, grab a rifle and pull the trigger—but what's in his scope may surprise you.
He's hunting naked women.
Men have been traveling from around the world and paying as much as $10,000 to be armed with paintball guns to hunt women wearing only their tennis shoes in the Nevada desert.
* * *
This so-called game mixes sexuality with violence, and for some men, that can be a very dangerous combination . . . .

(Link via The LitiGator.)

And the story is not any more edifying in full. Read it for yourself. Ought there to be a law that forbids such enterprises? Presumably, as a commercial endeavor, it falls well outside of any potential protection afforded by Lawrence. But can my sheer moral distaste for this consensual business venture form a valid basis for prohibiting it?

ASIDE:

Speaking of Dennis Miller and moral bottom-feeders, did you happen to catch the former's take on the Jerry Springer campaign? Here's a taste:

Now that's not to say I don't periodically find the "The Jerry Springer Show" intellectually stimulating. Indeed, how many times have I been walking through the parking lot of a laundromat and seen two obese women in halter tops slap fighting and thought, Wow . . . I wonder what the back story is on that?
But at this point, Springer would have to hire a team of sherpas to assist him on the long trek back up to the lowest common denominator. . . .

(Link via Pejmanesque.)

UPDATE:

A regular reader who helps keep me honest (and accurate) helpfully informs me that the report discussed above about hunting vixen may be a hoax:

Now, a man has stepped forward to say the story was a hoax designed to get free advertising to sell the videos.
* * *
There is a possibility that Hunting for Bambi will get shut down by the City of Las Vegas.
* * *
In a business license application last month, the company promised not to sell "porno" videos. The licensing department is investigating, and if they decide the videos are pornographic in nature, they could force the company to shut down.

So, it's not quite the story that I thought it was, yet it remains completely reprehensible.

2003-07-22T20:11:00.000-05:00

Many Thanks:

Thanks to Larval Lawyer for linking to The Curmudgeonly Clerk. Larval Lawyer is keeping an amusing running log of his daily caffeine intake and contact with live human beings as he prepares for the bar exam.

Thanks also to the following folks who blogrolled my humble blawg: Le-Gal, Peccavi, and Three Years of Hell to Become the Devil. Three Years has actually syndicated my blog entries on his site. A link to one of my blog entries also appeared on Juriblog due to its syndication of Net.Law.Blog's posts.

At the rate that I am linking/being linked these days, I am going to have to devise some appropriate manner of organizing my blogroll. Any suggestions?

2003-07-22T14:52:00.000-05:00

The Right to Keep and Bare Gins Guns:

In a recent post, Professor Barnett asks, "What are reasonable regulations of gins?", and my instinctive response was: well, whatever keeps liquor stores well-stocked with Bombay Sapphire. Upon reading the fine print, however, it appears that Barnett has just made a typo and is instead writing about some obscure constitutional provision. There is no indication when the good professor will move on to more serious issues, like the role of alcohol in good governance. But for those who insist on reading about this Second Amendment business, you may as well check out Mr. B's interesting take on the matter as well.

UPDATE:

Seems that I am not the only one with concerns regarding the regulation of gin.

2003-07-22T08:49:00.000-05:00

Thank-You:

Thanks to the United States Courts for the Ninth Circuit Library for linking to one of my posts regarding the ethical concerns surrounding blogging by federal law clerks, and welcome to readers directed therefrom.

2003-07-21T22:13:00.000-05:00

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.

2003-07-21T19:43:00.000-05:00

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?

2003-07-21T09:50:00.000-05:00

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.

2003-07-20T01:48:00.000-05:00

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.

2003-07-18T16:18:00.000-05:00

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.

2003-07-18T01:17:00.000-05:00

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.

2003-07-17T22:47:00.000-05:00

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?)

2003-07-16T02:01:00.000-05:00

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.

2003-07-16T00:04:00.000-05:00

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.

2003-07-14T09:45:00.000-05:00

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.

2003-07-14T02:32:00.000-05:00

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.

2003-07-14T01:51:00.000-05:00

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.

2003-07-02T23:41:00.000-05:00

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.

2003-07-02T23:05:00.000-05:00

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.

2003-07-02T01:02:00.000-05:00

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.

2003-07-02T00:38:00.000-05:00

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.

2003-07-02T00:37:00.000-05:00

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.''

2003-07-01T02:49:00.000-05:00

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.

2003-07-01T02:38:00.000-05:00

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.).

2003-07-01T02:22:00.000-05:00

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.

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Grutter v. Bollinger: Some Preliminary Observations On The Majority

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