June 29, 2007

Get SCOTUS Clerks Open for Business

Business Week says,

Consider this: Out of 15 cases in which the U.S. Chamber of Commerce filed friend-of-the-court briefs, presenting the views of its corporate members, the chamber won 13 -- the chamber's highest winning percentage in its 30-year history. Indeed, the court's 2006-07 term, drawing to a close this month, has been a banner year for business, with important victories in areas ranging from antitrust and banking to shareholder suits and punitive damages.
Despite the political lesson Volokh Conspirator Stuart Benajmin tries to draw from Leegin, the end-of-term issued opinions, which are supposed to be for the most contentious cases, have been fairly peaceful with regard to business. Tellabs had only a Stevens dissent; Credit Suisse only a Thomas dissent; the freakishly narrow-reading Long Island Care decision was unanimous, as were Atlantic Research Corp and Beck; Safeco Insurance was unanimous for the result; and what might be perceived as a loss to business but a gain to common sense, Watson v. Philip Morris, also was unanimous. I would say that Roberts actually may have inclined to accept more business cases in order to minimize intra-court fighting except on issues he deemed vital to conservatives -- abortion, anti-abortion speech and race-conscious government action. BW continues,
The true sea change brought about by the Roberts court stems from its willingness to take business cases for review. The group presided over by his predecessor, William H. Rehnquist, simply wasn't interested, instead favoring cases involving criminal law, school prayer, or other matters involving fundamental constitutional rights. "There was a period there toward the end of the Rehnquist years when you couldn't buy an antitrust or securities case onto the docket to save your life," says Carter G. Phillips, an appellate specialist Sidley Austin in Washington who has argued before the Supreme Court dozens of times.
Hopefully the Roberts Court's inclination to take business cases will be coupled with an inclination to take business clerks, i.e. law school graduates who have taken bankruptcy, antitrust, securities, tax and advanced courses in business organizations, and better yet, applicants who have experience as academics or practitioners in these areas. This isn't self-promotion; I'm an antitrust geek but decidedly not a general business one.

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Today / 06.29.07

The last weekend to light up in the pub, as England goes smoke-free July 1. (The graphics at the bottom of the linked page are amusing for being so pointlessly high-tech; try putting your mouse over each for several seconds.)

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June 28, 2007

Ding Dong, Dr. Miles Is Dead!

I know everyone is more interested in the Seattle schools decision, but for antitrust junkies, the decision that vertical price restraints would be judged by the rule of reason rather than as a per se violation is like watching a zombie finally stagger into its grave. It's also kind of fun seeing the 5-conservative majority opinion explain why a bright-line rule is bad and why a statute really is more like common law to be driven by judicial interpretation, so it's OK to ignore whatever signals Congress might be sending about the statute. Indeed, a major weakness in Kennedy's opinion is its attempt to deal with the Consumer Goods Pricing Act of 1975.

In 1937, Congress passed the Miller-Tydings Fair Trade Act, 50 Stat. 693, which made vertical price restraints legal if authorized by a fair trade law enacted by a State. Fifteen years later, Congress expanded the exemption to permit vertical price-setting agreements between a manufacturer and a distributor to be enforced against other distributors not involved in the agreement. McGuire Act, 66 Stat. 632. In 1975, however, Congress repealed both Acts. Consumer Goods Pricing Act, 89 Stat. 801. That the Dr. Miles rule applied to vertical price restraints in 1975, according to respondent, shows Congress ratified the rule. This is not so. The text of the Consumer Goods Pricing Act did not codify the rule of per se illegality for vertical price restraints. It rescinded statutory provisions that made them per se legal. Congress once again placed these restraints within the ambit of �1 of the Sherman Act.

And, as has been discussed, Congress intended �1 to give courts the ability �to develop governing principles of law� in the common-law tradition. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 643 (1981); see Business Electronics, 485 U. S., at 731 (�The changing content of the term �restraint of trade� was well recognized at the time the Sherman Act was enacted�). Congress could have set the Dr. Miles rule in stone, but it chose a more flexible option. We respect its decision by analyzing vertical price restraints, like all restraints, in conformance with traditional �1 principles, including the principle that our antitrust doctrines �evolv[e] with new circumstances and new wisdom.� Business Electronics, supra, at 732; see also Easterbrook 139.

The rule of reason, furthermore, is not inconsistent with the Consumer Goods Pricing Act. Unlike the earlier congressional exemption, it does not treat vertical price restraints as per se legal. In this respect, the justifications for the prior exemption are illuminating. Its goal �was to allow the States to protect small retail establishments that Congress thought might otherwise be driven from the marketplace by large-volume discounters.� California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 102 (1980). The state fair trade laws also appear to have been justified on similar grounds. See Areeda & Hovenkamp 298. The rationales for these provisions are foreign to the Sherman Act. Divorced from competition and consumer welfare, they were designed to save inefficient small retailers from their inability to compete. The purpose of the antitrust laws, by contrast, is �the protection of competition, not competitors.� Atlantic Richfield Co. v. USA Petroleum Co., 495 U. S. 328, 338 (1990) (internal quotation marks omitted). To the extent Congress repealed the exemption for some vertical price restraints to end its prior practice of encouraging anticompetitive conduct, the rule of reason promotes the same objective.

The above thicket of statutes and cases can be cut down as follows. Keep in mind that the prohibition on resale price maintenance is relevant only if the manufacturer wants to maintain a certain retail price, just as the Robinson-Patman Act is relevant only if the manufacturers wants to give discounts to chain stores not provided to independents. Plenty of manufacturers don't care what their products retail for, as long as they can maximize their own profits at the wholesale level. One reason for manufacturers to pursue resale price maintenance actually is vertical integration: if they are retailers of their own product in competition with other retailers of their product, they naturally would prefer not to have to compete on price, even if they want to maximize the number of retailers selling their products. For example, if a large discount shoe store carries Nine West shoes, it is competing with Nine West stores, and profit maximization for Nine West argues in favor of their requiring that all retailers sell hideously uncomfortable thong sandals for no less than $10.

1937: Miller-Tydings Fair Trade Act = if State passed a law in which retailers could label items "fair trade" (this was the Depression, not Starbucks) for adhering to a contract that forced them to maintain MSRP -- or rather, MMRP, Manufacturer's Mandated Retail Price -- the manufacturer had not violated the Sherman Act. A 1948 TIME article militated against the law and deemed it a child of the druggist lobby, but admitted, "Competition was reduced, pricewise; but it was increased in an unexpected way. The attraction of 'sure profits' on fixed prices lured thousands of new merchants into business. As they scrambled for customers, price-cutting returned in another form. Now, in order to undersell the 'protected' independents, most large chain stores put out their own brands. R. S. Macy & Co. has over 1,400 such items. Gimbels offers its own brand of bonded liquor."

1952: McGuire Act - Extended the Fair Trade Act such that manufacturer could cut off shipments to any retailer that did not follow MMRP, even if the retailer never had contracted to follow MMRP. Again from TIME, now a 1958 article:

No one has battled harder to enforce Fair Trade around the U.S. than giant General Electric Co., which gets an estimated 35% of its $4 billion annual sales from its consumer products. Last week G.E. threw in the sponge. [The sponge?] ...
G.E. had been leading a lost cause ever since 1952, when the federal McGuire Act legalized Fair Trade laws. In Fair Trade states, manufacturers, exempted by the McGuire Act from antitrust prosecution, were permitted to fix minimum prices for an entire state so long as they signed a contract with one dealer; all others were bound, whether they signed or not. Yet no sooner were the laws on the books than retailers started breaking them, cut prices far below company minimums. In five years G.E. alone spent almost $5,000,000 tracking down violators, brought suit against more than 3,000 price cutters. Yet the pressure against Fair Trade grew so strong that by last year it was enforceable in only 31 states. In 1954 G.E. stopped tagging major appliances with suggested list prices; two years later it gave up on TV sets.
1975: Consumer Goods Pricing Act: When President Ford signed it, he stated, "I am today signing into law H.R. 6971, which will make it illegal for manufacturers to fix the prices of consumer products sold by retailers. This new legislation will repeal laws enacted in 1937 and 1952 which amended the Federal antitrust laws so States could authorize otherwise illegal agreements between manufacturers and retailers setting the price at which a product would be sold to consumers." [emphasis added]

President Ford's understanding of the Consumer Goods Pricing Act appears to have been quite different from Kennedy's. So is Rep. Conyers's: "As you know, vertical minimum price fixing, often called resale price maintenance (RPM), is an issue of vital importance to consumers and retailers, as well as many manufacturers. Congress has legislated on this issue on at least four occasions over the past 70 years: in 1937 to pass the Miller Tydings Act, in 1952 to pass the McGuire Act, in 1975 to pass the Consumer Goods Pricing Act, and in 1983 to prohibit the expenditure of appropriated funds to urge the Supreme Court to overturn the per se rule." Apparently foreseeing today's outcome, Conyers asked in his letter to the FTC, "Given Congress� active involvement in the RPM issue -- on the last two occasions (in 1975 and in 1983) in unequivocal support of the Dr. Miles line of cases -- would you agree that the Supreme Court should defer to Congress on this issue?"

(I attended a couple of the FTC's vertical hearings last summer, but as the panels had many economics wonks without formal legal training, the debate concentrated more on the wisdom of various policies rather than whether they should be promulgated by statute or common law, so I dunno how the FTC would have answered Conyers's question. There's no unanimous FTC position even on the policy question, given that Commissioner Harbour pleaded with the Court not to kill Dr. Miles, but according to the majority opinion, both the DOJ and FTC recommended that the Court replace the per se rule with rule of reason.)

Anyway, the line of reasoning Kennedy uses to square the Consumer Goods Pricing Act with the majority's decision to toss per se illegality for RPM is an odd one: because the CGPA had an objective of invalidating prior legislation that had an anti-competitive effect, and the Court considers its rule of reason for RPM also has a pro-competition objective, there's no conflict between the two! I look forward to future decision in which the Court decides that it is acting consistently with legislation because it totally shares Congress's goals.

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June 26, 2007

Today / 06.26.07

Day of Silence: Several U.S.-based internet stations go radio silent to protest the United States Copyright Royalty Board's rate hike applicable only to online radio, and to encourage their listeners to support Congressional passage of the Internet Radio Equality Act.

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Comporting In Loco Parentis with Loco Parents

Despite being more sympathetic to the need for schools to keep order than some other bloggers are, I still find Thomas's Morse v. Frederick concurrence to be surprisingly bad. I don't even need to go to Prof. Colb's tangent about how schoolmasters were part of the general white adult male hierarchy that advocated wife-beating (as a gender scholar, Colb should know that wife-beating became illegal in most states during the late 1800s even before women got the vote) to consider Thomas's originalism ludicrous. The concurrence argues that "the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." The original understanding of the First Amendment may well not have encompassed student speech in public schools.

Yet until the 20th century, part of the Thomas-touted "core of common values� that public schools instilled was Protestant Christianity. If we judge by the accepted practices of American public schools, it apparently was no part of the original understanding of the religion clauses of the First Amendment that Catholics like Thomas or the other four justices in the Morse majority should not be forced to participate in ritual Protestantism. Given how little public schooling there was at the actual drafting and passage of the First Amendment, I find using 19th century customs to prove What Would Founders Do to be shockingly bad originalism. If the overwhelming majority of schooling in 1789 occurred in the home or at private schools (UNC, the first American public university, was chartered the same year that the Bill of Rights was passed), there's no reason to think the Founders were contemplating students' First Amendment rights at all. Schooling was a private matter in which the government did not participate, so there was no fear of government censoring either political speech or religious activity.

Of course, before the Bill of Rights was incorporated to include state governments with the passage of the Fourteenth Amendment, even if the Founders would have thought that a federally-run school was subject to the First Amendment, few if any such schools existed. (I don't know if schools for Native Americans were federally run, or when the U.S. government began running schools overseas for diplomatic and military brats.) With the First Amendment inapplicable to state action until the 20th century, everything that Thomas says about how public schools constrained student speech (and though he doesn't mention it, student religion) just seems pointless. He concedes in a footnote that "the First Amendment did not apply to the States until at least the ratification of the Fourteenth Amendment," but figures he can work out what the federal free speech guarantee meant because "most state constitutions included free-speech guarantees during the period when public education expanded." I understand that Thomas is skeptical of incorporation anyway, which is fine as an intellectual matter, but his concurrence is intellectually dishonest to ignore that it wasn't just state-run schools that could trample student's federally-protected speech rights -- it was any state institution, anyone's rights, and any aspect of the First Amendment.

His list of cases in which students were disciplined for bad behavior in school is equally irrelevant. I don't know where Thomas sent his kids to school, but in my schools and in the New York public schools that I've read about in the course of researching school suspensions, nearly all of the acts that Thomas mentions in citations to Olde Timey, pre-Tinker cases -- disrespectful address of teachers, profanity, quarrels, refusal to 'fess up to misbehavior, late or nonexistent submission of work (I know that one's punishable), "distracting demonstrations in class" -- continue to be penalized today with no concern that anyone's speech rights are thereby violated.

I assume that the federal government at the Founding also could have fired anyone for the workplace equivalent of these acts. However, had a federal employee quietly, undistractingly voiced his opposition to putting down an early anti-tax rebellion, by wearing a badge that said, "Mmm... whiskey," this expression of solidarity with the makers of 'shine would be core First Amendment political speech that ought not be punished by job loss. Similarly, wearing a black armband to protest war would be core First Amendment political speech that ought not be punished by suspension.

But to get to the post title: I am confused as to how Thomas's notion of in loco parentis, in which public schools can constrain students just as much as their parents can, fits with those nutty parents who are supportive of their children's speech and fight the school's penalizing it*. Thomas's choice of citation doesn't help much; in footnote 6, he says,

At least nominally, this Court has continued to recognize the applicability of the in loco parentis doctrine to public schools. See Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 654, 655 (1995) (�Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination... They are subject... to the control of their parents or guardians. When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them� (citation omitted))
What in tarnation does a private school have to do with public schools? Thomas doesn't include the relevant part of Scalia's majority opinion in Vernonia:
In T. L. O. we rejected the notion that public schools, like private schools, exercise only parental power over their students, which of course is not subject to constitutional constraints. T. L. O., 469 U. S., at 336. Such a view of things, we said, "is not entirely 'consonant with compulsory education laws,' " ibid. (quoting Ingraham v. Wright, 430 U.S. 651, 662 (1977)), and is inconsistent with our prior decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses, T. L. O., supra, at 336. But while denying that the State's power over schoolchildren is formally no more than the delegated power of their parents, T. L. O. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.
For once, I can join a Scalia opinion, while Thomas says,
But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal., 293 U. S. 245, 262 (1934) (�California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course . . .�); id., at 266 (Cardozo, J., concurring). If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.
You know your argument is going downhill fast when you equate college education -- mandated by no law -- with primary and secondary schooling that is enforced by truancy laws. And you know that you are one privileged person when you blithely imply that private schooling, home schooling and moving are just as easy as not attending the state university.

If schools simply take over parental power during the time that students are in the school's custody, how do we end up with conflicts between the school, which merely borrows parental power, and the parents who are the source of that power? Some parents will back their kids on the most ridiculous misbehavior that they may countenance in their homes but should not be countenanced in schools. Tinker's parents were hippies who encouraged him to wear the armband. Therefore public schools' power over children logically does not derive from an explicitly parental power, but rather from state mandates to educate children into useful citizens. Inasmuch as a student's behavior, such as calling a teacher by her first name, impedes the state-given mission, it is punishable even if the student calls her own parents Bob and Joanne. At the point where, as in Tinker, the behavior does not threaten to impede the school's educational mandate, it should not be punished.

Thomas is out there alone in his concept of in loco parentis; Alito's concurrence, joined by Kennedy, pointedly disagrees with him in strong language (emphasis added):

The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students� parents. It is a dangerous fiction to pretend that parents simply delegate their authority -- including their authority to determine what their children may say and hear -- to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis. For these reasons, any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting.
In footnote 8, Thomas declares that Tinker's citations to Meyer and Pierce do not support the notion that students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." But he continues to miss the difference between private schools (chosen by parents) and public schools (run by the state). Meyer and Pierce, both cases in which private schools defended the right of parents to have their children educated in a manner disapproved by the state (in German and by nuns, respectively), show the Court's historic unwillingness to allow state power to supersede parental discretion when doing so does not serve a state purpose more important than a generalized right of liberty. Both cases were decided before the Court incorporated the First Amendment for states.

Also cheerfully ignored in Thomas's concurrence is the distinction the Hazelwood Court drew between punishing student speech, and refusing to sponsor student speech. I disagree with the Morse majority's decision, but would have no problem if the school had refused to run "Bong Hits 4 Jesus" in the school paper. White's Hazelwood opinion, joined by Rehnquist, Stevens, O'Connor and Scalia with no concurrences to express a different idea for the same result, states that

we conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.
Incidentally, I think those who detect an In My Day theme beginning to run through Stevens's opinions are correct. His Morse dissent features this gem: "Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student." Prohibition really seems to be a major touchpoint of Stevens's youth, given that he cites it in his Granholm v. Heald dissent too.

He doesn't quite finish making one point, though. He says, "Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message." Student speech that mentions drugs is actually encouraged at public schools, as long as the speech is anti-drug. As I recall, there were two different anti-drug organizations at my middle and high schools. Certainly schools can endorse some student speech while finding other speech to be disruptive: tolerance of homosexuals, good speech; advocacy of gaybashing, bad speech.

* If I seem contemptuous of such parents, it's probably at least partly envy. Had I tried to assert my First Amendment rights at school -- e.g., by objecting to having the National Honor Society induction conducted in a church, with a pastor present and religious references made -- my parents would have opened a can of whupass that even Thomas might think excessively harsh.

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Wikied Sandy Berger

Either the Wikipedia entry for Clinton's National Security Advisor is a whitewash that needs to be cleaned up (is it a mixed or merely contradictory metaphor to recommend cleanup of a whitewash?), or it needs to be read by those who want to compare Berger's treatment after his theft and destruction of classified material from the National Archives to the treatment of Scooter Libby after his perjury, obstruction of justice and false statements to federal investigators in questioning about Valerie Plame.

1) The Justice Department investigated and prosecuted Berger. He pled guilty to a misdemeanor charge of unauthorized removal and retention of classified material, and was penalized with a loss of security clearance for three years, a $50,000 fine, two years of probation and 100 hours of community service.

2) The documents in question were five classified copies of Richard Clarke's report on the Clinton administration's handling of unsuccessful terrorism plots. Noel Hillman, currently US-DNJ but then-chief of the Justice Department's Public Integrity Section, stated that Berger only removed classified copies of data stored on hard drives stored in the National Archives, and that no original material was destroyed.

While Berger certainly is an embarrassment to the Clinton Administration, if one can call anything a further embarrassment to the Clinton Administration, his actions did not have any serious consequence (because he stole and destroyed only copies, the original document and information still exists) and he was punished lightly for them after plea bargaining. I don't know whether Fitzgerald offered Libby a plea, but given the attitude among his supporters that he should be vindicated of the charges entirely, I'm not sure Libby would have taken one if given.

(I know ambassadors aren't picked for their copyediting skills, but I still winced at Libby Legal Defense Trust chairman Mel Sembler's June 21 statement: "I can assure you, the Advisory Committee of the Libby Legal Defense Trust is supporting him stronger than ever as he moves forward with his appeal." Stronger is an adjective that could be used to modify a noun like "support," but when modifying a verb phrase such as "is supporting," an adverb phrase -- "the Advisory Committee of the Libby Legal Defense Trust is supporting him more strongly than ever" -- is appropriate. I guess they're being an efficient charity by not spending money on administrative costs such as a grammar-check.)

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June 24, 2007

Why Intellectual Dishonesty Is a Bad Choice for Democrats

Melinda Henneberger's NYT op-ed about how Democrats could regain women voters is a lost opportunity. Despite having some interesting conversations with parts of the Democratic base from which we rarely hear, such as African American women*, Henneberger chose in her op-ed to focus on herself -- not quite literally herself, but women very much like herself: middle-aged white Catholics who consider themselves good liberals but reject the Democratic Party over abortion. Though Henneberger doesn't explicitly reveal her own position on legalized abortion in the op-ed, she unintentionally makes it clear elsewhere, as when she refers to the women she interviewed as "we." In a book tour interview, Henneberger says, "One thing I heard again and again from women across the political spectrum was the desire for authenticity, for less pandering and intellectual dishonesty from candidates. In fact, many women suggested it was more important that candidates come across like THEY believe what they're saying than that we agree with them!"

But this is precisely what the Democratic candidates whom she chastises for their concern about the Carhart decision have been doing. One of my Republican friends briefly thought Obama might be our next president based mostly on his speech about how his campaign misstepped in disrespecting pro-life voters (they were first in line before the online activists and Indians). A couple months after the 2004 election, Sen. Clinton was making speeches about how abortion "represents a sad, even tragic choice to many, many women" and voicing her respect for "those who believe with all their hearts and conscience that there are no circumstances under which any abortion should ever be available." Both Obama and Clinton are stalwart supporters of a constitutional right over one's reproduction, which right currently is founded in Roe, but they also recognize that their opponents on the issue can be well-intentioned people.

The Democratic front-runners' lawyerly disdain for the majority opinion in Carhart -- a disdain shared by Reagan solicitor general Charles Fried -- is based on Kennedy's disregard for the actual facts on women's health and adoption of Congress's spurious findings to the contrary. Refusing to give a health exception for an abortion regulation is a huge break with precedent. Roe said that states could ban abortion after viability, "except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." For attorneys to nod their heads along dumbly with Kennedy simply because the majority of Americans find it worse to crush a fetus's skull outside a uterus than to do the same inside a uterus would be intellectually dishonest. Indeed, one issue that sticks in my craw with regard to Sen. Clinton was her pandering proposal to ban flag desecration, when she knows very well that such legislation impinges on the First Amendment.

* From a that book tour interview:

One of the surprises was the intensity of opposition to gay marriage among black women, even those for whom it was not a religious issue. Black women are both the most Democratic voting bloc and the most opposed to gay marriage, so it's a tricky issue for Democrats. (One woman I met in Oregon, for instance, said that Bush scared her more gay marriage, but once he's out of office she might switch to the Republican Party.) I also found that the fairness argument was a non-starter for some of the African-American women I talked to, who did not want to hear gay rights compared to civil rights. And yes, I think these problems are enduring ones for the party, which must find ways to make those religious swing voters feel less excluded. ...
For many, of course, it's part of their religious faith. But as one secular black woman told me, "Anything that takes men out of the marriage pool, we're against.'' So many black men are incarcerated that the demographic reality is that there are many more women in the marriage pool, and the "down low'' phenomenon of hidden bisexuality in the African-American community has also contributed to the feeling among some women that gay men are the competition.
Apparently the GOP has succeeded in convincing this group with higher rates of out-of-wedlock births that letting two men marry somehow will make men less likely to marry women. (Note to the secular black woman: If you're so desperate for a man that you'd take a guy who sneaks off for homosexual sex, you might want to look outside the African American male pool for potential marriage partners.) And is this solely a higher-than-average opposition to gay marriage, or also to orientation equality generally -- are black women more likely than other Democrats to be against including sexuality in anti-discrimination law?

** At the end of his speech:

A few days after I won the Democratic nomination in my U.S. Senate race, I received an email from a doctor at the University of Chicago Medical School that said the following:
"Congratulations on your overwhelming and inspiring primary win. I was happy to vote for you, and I will tell you that I am seriously considering voting for you in the general election. I write to express my concerns that may, in the end, prevent me from supporting you."

The doctor described himself as a Christian who understood his commitments to be "totalizing." His faith led him to a strong opposition to abortion and gay marriage, although he said that his faith also led him to question the idolatry of the free market and quick resort to militarism that seemed to characterize much of President Bush�s foreign policy.

But the reason the doctor was considering not voting for me was not simply my position on abortion. Rather, he had read an entry that my campaign had posted on my website, which suggested that I would fight "right wing ideologues who want to take away a woman�s right to choose." He went on to write:
"I sense that you have a strong sense of justice... and I also sense that you are a fair minded person with a high regard for reason... Whatever your convictions, if you truly believe that those who oppose abortion are all ideologues driven by perverse desires to inflict suffering on women, then you, in my judgment, are not fair-minded... You know that we enter times that are fraught with possibilities for good and for harm, times when we are struggling to make sense of a common polity in the context of plurality, when we are unsure of what grounds we have for making any claims that involve others... I do not ask at this point that you oppose abortion, only that you speak about this issue in fair-minded words."

I checked my web-site and found the offending words. My staff had written them to summarize my pro-choice position during the Democratic primary, at a time when some of my opponents were questioning my commitment to protect Roe v. Wade.
Re-reading the doctor�s letter, though, I felt a pang of shame. It is people like him who are looking for a deeper, fuller conversation about religion in this country. They may not change their positions, but they are willing to listen and learn from those who are willing to speak in reasonable terms -- those who know of the central and awesome place that God holds in the lives of so many, and who refuse to treat faith as simply another political issue with which to score points.
I wrote back to the doctor and thanked him for his advice. The next day, I circulated the email to my staff and changed the language on my website to state in clear but simple terms my pro-choice position. And that night, before I went to bed, I said a prayer of my own -- a prayer that I might extend the same presumption of good faith to others that the doctor had extended to me.

It is a prayer I still say for America today � a hope that we can live with one another in a way that reconciles the beliefs of each with the good of all. It�s a prayer worth praying, and a conversation worth having in this country in the months and years to come. Thank you.

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June 19, 2007

How You Know the Temp Secretary Doesn't Envy You

She sends the summer associates this.

And via Milbarge for those not spending the summer working in an office, the least weird thing to come up when you search "bar exam" on YouTube. Most weird may go to planetjulie's series of short videos giving a guided tour of the Ontario Convention Center prior to the July 2006 California bar.

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June 18, 2007

Wasting Away Again in Manhattanville

"Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference." -- Justice Stevens for the Kelo majority.

Searching for my just compensation...

"While our goal is to ensure that Columbia has the space needed to carry out its mission of teaching, research, and patient care in Upper Manhattan in the decades ahead, we also aim to help revitalize economic, civic, and cultural life in a project area that has not thrived in recent decades." -- President Bollinger.

Some people say that it's the lib'rals to blame...

(I'm not quite clear on why Columbia Law conservatives haven't rallied to defend Manhattanville from Columbia's takeover -- perhaps because people on the left have? And more, or maybe less, seriously, what did Justice Thomas mean by the first paragraph of his Kelo dissent? "Long ago, William Blackstone wrote that 'the law of the land ... postpone[s] even public necessity to the sacred and inviolable rights of private property.' The Framers embodied that principle in the Constitution, allowing the government to take property not for 'public necessity,' but instead for 'public use.'" Isn't "necessity" actually a more demanding standard than "use"?)

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June 17, 2007

I Want to Take Securities...

... even though everyone tells me to take it easy for my last semester of law school, because the following sounds like a cool job to me:

New York Stock Exchange
New York, NY
* Principal Rule Counsel
Overview/Qualifications: Law degree and New York Bar admission is required.
Duties: Initiate, analyze and develop amendments to Exchange rules, policies and procedures. Provide legal analysis of proposed rule amendments in light of federal securities laws and other SRO rules. Draft rule filings
and other materials for submission to the SEC.
To apply: Visit our website at http://www.nyse.com
Deadline: Not specified.
Salary: $95300-$162000
Also, I heart that this came from the Center for Public Interest Law (CPIL) weekly e-mail of job notices. How many public interest jobs come with six-figure salaries?

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Bar Exam Laptop Lottery

The word on the street listserv is

For anyone who registered with the bar with their Columbia email account and signed up for the lottery but didn't get a laptop email, know that cubmail blocked all the laptop emails for some reason, so it's not that you just didn't win the lottery. You have to call up the laptop office at (617) 354-7464 to get them to resend the email. Qualification isn't due until tomorrow, so you can still qualify in that last day. (This may already be common knowledge, but just in case it isn't...)

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The Non-Existent Child Molester Lobby

I missed this video when it made the rounds of conservative blogs last month -- a bit surprising, given that bloggers posted it on youtube and msn. In the video, Fulton County Superior Court Judge Craig L. Schwall (R) scolds a woman in court after sentencing her ex-boyfriend to two life sentences plus 20 years for having sexually molested the woman's eight and sixteen-year-old daughters. Judge Schwall faults the mother of the victims and tells her that she is not a victim, that she is the cause, that she is just as guilty as the defendant. I was a little surprised to see conservatives, who frequently decry judges' attitudes of superiority and elitism, could watch a judge say to a woman that she was despicable for having forgiven her boyfriend for sexually violating her, and cheer him on as "the kind of guy I want on all criminal benches." Railing against victims' mothers seems to be a new step for Judge Schwall. In the past, he's gotten similar praise from a conservative columnist for using harsh words toward the actual criminal --

When Fulton Superior Court Judge Craig Schwall says "now it is my time to speak," watch out. With repeat-offender child molester Michael J. Pearson, he got right to the point: "Your perverted and morally repugnant conduct is most repulsive and despicable and cuts to the core of evil. Clearly you have no conscience. What you are and do and what you are all about is offensive to the souls and the conscience of a civilized society." He gave Pearson life without parole. "I am vehemently, adamantly, without equivocation of any kind or type whatsoever, opposed to parole for this defendant ever." Put him on the high court.
However, a fuller transcript posted to a blog reveals that Schwall again saved some of it for the defendant's wife, the grandmother of the victim, because she took his calls demanding that she keep the victim from testifying against him:
Schwall: The grandmother of these children, your wife, is a coward. She is a coward because she can't come and sit in this courtroom and let all these jurors see that you're more important to her as a sexual predator than her grandchildren. She is a coward because she can have all these phone conversations and try to influence witnesses and try to tamper with witnesses, but she can't come here and let this jury see her face, and I cannot imagine the mothers of these children allowing them to have anything to do with the woman you're married to. And if I look or sound upset, I am. I am going to impute the conduct of the grandmother to you. She is despicable and disgusting, and she is morally bankrupt. She has chosen evil -- and you are evil -- over what is right and good and moral.
ChaliceChick commenter Peacebang remarked, "Think he's running for office soon?"

Judge Schwall's rhetoric capitalizes on the judicial bully pulpit, but it accomplishes nothing in itself except getting his name in the newspaper and his face on TV. Yes, child molesters are bad, and repeat child molesters are worse, and they're getting duly punished in his courtroom. However, what good does it do to call non-defendants "despicable"? By all means, prosecute the mother in the first case for neglect, and the grandmother in the second case for obstruction of justice, and give the appropriate sentences as a judge who has them in his discretion should. Measures that are a product of the judge's status and control of his courtroom, on the other hand, make me wary. Judge Schwall made news in 2004 for doing something neither I nor any of the commentators I've read have heard of a judge doing: banning an expert witness from appearing before him.

Schwall also banned a Florida physician who worked as one of the plaintiffs' expert witnesses, Dr. Larry R. Williams, saying the doctor may never again appear as an expert witness in his courtroom. "If Dr. Williams violates the instant order by so appearing, the matter in which he appears shall be summarily dismissed with prejudice and Dr. Williams shall be subject to the contempt powers of this court," Schwall wrote.
Veteran trial attorney Thomas W. Malone of Atlanta, who joined the State Bar of Georgia close to 40 years ago, said he also has never heard of a judge banning an expert. "I suspect the judge has that inherent authority to do that," he said. "But I cannot recall any specific instance of that ever happening."
Earlier this year, Judge Schwall appears to have made a summary judgment that a transit agency was responsible for a rape because the victim was kidnapped from a parking garage at a transit station. As a matter of law, he may well have been right to do so, given that the agency appeared unable to substantiate its claim that it had not been negligent in securing the garage. Still, he once again felt the need to play the scold: "He lashed out at the transit agency for not being able to produce documents to back up their claim that there were plenty of officers on duty the night the woman was abducted from the Buckhead parking deck.
"I will tell you it's a very brazen, intentional, deceitful act on the part of MARTA," Schwall said."

I love adjectives too, but legal writing teachers all say that they aren't optimal in the law, and that it's better to use facts to impress the wickedness of one's opponents on your audience -- the same old "show, don't tell" commandment given to all writers. And whatever objection I have to this sort of judging is essentially a stylistic one. The Judge Judy style of railing at uneducated, low-income, mostly minority persons who come before a white, upper class judge bothers me and doesn't strike me as likely to make such people improve their ways. It's just an easy win, because no one is going to stand up and say that child molesters ought to go free or that their aiders and abetters should either. Telling these dregs of society that they are despicable simply appeals to the reality-TV viewer's impulse to like watching others be humiliated -- as evidenced by the enjoyment the conservative bloggers and their commenters took.

Posted by PG at 6:48 PM | Comments (5) | TrackBack

June 13, 2007

Hopefully Overheard at Law Revue

Today on Overheard in New York:

Dean of Students' Services to third year student: You'd make a cute pregnant woman.

--Columbia Law School

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June 12, 2007

Poll: Should PG Die?

I've been blogging and commenting under my initials for several years, but in the last couple of months, I've wondered whether I should blog under my full name (if I continue to blog at all, which is another question I've been considering). Two De Novo posts -- one now deleted -- that criticized or appeared to criticize online speech or actions by people who spoke or acted under their full names garnered angry comments from the people who were mentioned in the post. Both commenters broke with what I'd understood to be the web etiquette of referring to bloggers or commenters by the names under which they write, choosing instead to refer to me by my full name, which otherwise appears nowhere on any blog on which I've written.

Aside from recognizing that this was done with the intent to be rude or to "out" me, I was untroubled by this choice, only curious as to why it was made. When I asked one commenter, he said, "I, for one, am generally annoyed when people hide behind anonymity or quasi-anonymity to personally attack me by name. ... I find ad hominems from the anonymous especially appalling. I can't comment on how other people react, but there's a general sense (XOXOHTH, e.g.) that people say things under the cloak of anonymity that they wouldn't if they had to associate their names to it."

I've had my name occasionally associated with my blogging and even put my blog on my resume when I thought it might be of interest; anyone who knows my name can connect me with my writing by the first couple Google hits, but someone who only knows my writing would have to dig an inch deeper. My reasons for quasi-anonymity have to do with minimizing irrelevant assumptions rather than with any sense of self-protection, which most people who do know me would say I lack entirely. So I'm not terribly bought into being "PG." I have a lot of good memories about friendly interactions tied to the moniker, but if it's a source of angst to others, it's not worth that.

Posted by PG at 6:06 PM | Comments (15) | TrackBack

June 11, 2007

Pointless Snark by Judge Walton

Though I don't join Eugene Volokh in jumping off the deep end of perceived unconstitutionality*, I have to agree with him and Jonathan Adler that Judge Reggie Walton, who has presided over the Libby trial, is unjustifiably sarcastic toward the dozen law professors who asked to file a brief on the issue of whether Patrick Fitzgerald's appointment as special counsel was constitutional. Various liberal bloggers are delighted by the footnote, but some seem to be under the misapprehension that all of the amici are friendly toward the Bush Administration.

In actuality, Bork, Dinh, Kmiec, Lawson and Maltz are originalist conservatives; Nagel is an anti-lawyer populist conservative**; Parker is a flag-obsessed populist conservative. But Barnett is a libertarian who has argued against the Bush Administration (Raich); Vikram Amar and Merrill clerked for Justice Blackmun; Pushaw favors a broad reading of the Commerce Clause; and Dershowitz is... well.

But whatever their political leanings, all of the above are constitutional scholars, several of whom also specialize in criminal procedure. The reason the brief was filed at this juncture (rather than earlier, on a motion to dismiss the charges, or later, on appeal) is that Judge Walton is considering whether to grant Libby bail while Libby appeals his conviction to the DC Circuit. One of the conditions for such a release is "(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." In their brief, "Amici take no position on any other issue raised in this case or on whether this Court should grant or deny bail pending appeal. The sole issue they address is whether the Appointments Clause issue is a close one."

Libby's own attorneys already filed a motion to dismiss on the Appointments Clause issue, back on February 23, 2006. The lawprofs are not going so far out on a limb as to suggest that Walton definitely decided wrongly in ruling against Libby on that issue; they're only uniting to say that it's a sufficiently debatable point to constitute a substantial issue of law.

In comments at Volokh and at N&B, co-blogger Armen points out that members of the legal profession have a duty to serve the indigent and not decline appointments by a court. "I could be wrong, it could just be important legal issues that require the quick thinking talents of 12 law profs only arise in cases where the defendant has the political clout and financial resources of Solomon... Snarky footnote is the perfect response in this case, especially coming from a judge with 16 years of experience dealing with criminal defendants in D.C. I'm willing to bet this is the first time anyone's filed an amicus brief in his court room. You think this is the most pressing constitutional issue he's had to decide? You think this is the most pressing defendant for whom a 'close' constitutional question mattered? Judge Walton is a bit cynical. I'm right there with him."

I disagree with Armen. The average criminal defendant doesn't have an issue of constitutional law that might overturn or at least modify existing Supreme Court precedent arise in her case.

INCIDENTALLY: The man who appointed Patrick J. Fitzgerald as special prosecutor, after Ashcroft was forced by Democratic demands to recuse himself from the case, has now become a recognizable name due to his recent testimony about politicized attorney general firings. Back in 2003, Deputy Attorney General James Comey described Fitzgerald thus: "He is an absolutely apolitical career prosecutor." Fitzgerald had received the Attorney General's Award for Distinguished Service in 2002, but Fitzgerald "was ranked among prosecutors who had 'not distinguished themselves' on a Justice Department chart sent to the White House in March 2005."

* Prof. Volokh concludes,

Finally, as I understand it courts do have the power to require members of their bars (which may well not include many of the twelve amici) to represent some litigant, though that is a power that is rarely used today. But I doubt they have the power to require anyone to file a brief in his own name, a brief in which the person expresses his own view rather than just advocating on behalf of counsel -- such a requirement would, I think, be a violation of the right to be free from speech compulsions.
And it seems to me that it would be unconstitutional for courts to require someone to shoulder an extra burden as punishment, retaliation, or other reaction to that person's past constitutionally protected actions, here the filing of a brief before the court. (The filing of briefs before courts is generally protected from retaliation by the Petition Clause, at least so long as the briefs comply with the proper court rules.) So if the court is threatening, or even sarcastically pretending to threaten, that he will "call for" assistance in a mandatory sense -- rather than just suggesting he would offer a nonbinding invitation -- then that strikes me as threatening to do something the court is not allowed to do.
This is just silly. First, Prof. Volokh gives no basis for his claim that judges "rarely" use the power to require members of their bars to represent a litigant who lacks the resources to pursue his case adequately. Many people pursue claims pro se, and courts want to see the argument presented as ably as possible, so they appoint talented (and more to the point, wealthy) lawyers to do the job, and thank them for taking it (see n.1). Whether the appointed lawyer believes her arguments should prevail is irrelevant.

Second, on the specific amici question, Steve Lubet notes in Volokh comments, "Courts certainly do appoint amici to provide detached input on legal issues. I don't see a problem with that, so long as the amicus's ultimate opinion is not dicated by the court." In response to another commenter's claim that Judge Walton's sarcasm is merely a way to preemptively ignore the amici's arguments, Prof. Lubet adds, "If he wanted to dismiss their views he could have rejected the brief, especially since they didn't fulfill the requirement of setting out an interest distinct from the defendant's."

Personally, I don't think the lawprofs' brief is any worse about setting out a distinct interest than, say, the Urban Morgan Institute for Human Rights was in Hamdan. My gripe is more about the brief's sloppiness. For example, paragraph 2 of the motion section says, "Mr. Libby plans to file a motion requesting that he be released on bail pending appeal pursuant to 18 U.S.C. � 3142." Wrong section, fellas: 3142 covers bail pending trial; 3143 covers bail pending sentencing and appeal.

** Speaking of snark, in reviewing Max Miller's The High Priests of American Politics: The Role of Lawyers in American Political Institutions, Nagel says,

One of Miller's most interesting--and depressing--findings is that lawyers tend to be unrealistic and uncritical in their attitudes towards judges. Lawyers, for example, are more likely than other legislators to believe that judicial interpretations are not political. They are less likely to respond to judicial excesses by trying to limit judges' power. And the most prestigious lawyer-legislators, such as those who sit on the Senate Judiciary Committee, are actually so entranced by the model of "The Judge" that they talk and act as if they themselves were jurists.

Our system was built on the idea that power cannot be trusted -- that ambition must be used to check ambition. To an astonishing extent, this principle has not worked with federal judges, who go merrily on their way enjoying ever more prestige even as they abuse their role. Miller helps us understand why. The legislative branch that is supposed to help check judicial excesses has been infiltrated by the same legalistic vocabulary and value system that fuels judges' behavior. Even more worrisome is Miller's suggestion that this lawyers' ideology now "resides in the minds of Americans": To the extent that we have all become lawyers, there is no one to keep judges in check.

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June 6, 2007

The Invisible Elect

A list of reasons that the Supreme Court Fellows Program gets very little attention [1], despite being, in numerical terms, far more selective than Supreme Court clerkships (a couple dozen clerks every term, but only four fellows):

1) Fellows don't get to write opinions. Clerks hold the power of Grayskull.[2]

2) Fellows have multidisciplinary experience, with significant careers already under their belts. Clerks are twentysomething law geeks. Youth beats age.

3) Each branch of the federal government has fellows. Only the justices have clerks. They special.

4) Despite the name of the program, fellows are spread out, with each assigned to a different aspect of the judiciary: Sentencing Commission, Administrative Office of the U.S. Courts, FJC and SCOTUS itself. Clerks hang out together and can form friendships and resentments to last a lifetime.

5) Relatedly, fellows seem to spend most of their time with people other than the justices. Clerks are excellent sources for tell-alls.

6) Fellows don't have to hold JDs, and academics are favored; they aren't likely to become big names in the law. On a list of past fellows, David M. O'Brien was the only name I recognized, and that was solely because I took two classes with him. Supreme Court clerks have more than the advantage of superior numbers (certainly there are plenty of little-known individuals who have been clerks); clerking is either a near-prerequisite or just very strongly correlated to some positions, including being a federal appellate judge oneself, or a famous scholar or appellate advocate.

7) You can clerk, but you can't fellow.

[1] If the proposition that the Fellows Program is less well known requires support, I refer the skeptic to question 4 of the Fellows application: "How Did You Learn About the Supreme Court Fellows Program? In the text box below, please tell us how you learned about the Supreme Court Fellows Program." I am guessing this question doesn't come up in applying to be a Supreme Court clerk.

[2] Which makes each justice the Sorceress to her clerks, and the opponents of judicial review Skeletor.

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June 5, 2007

Opening in New York City on June 30, 2009

I hadn't realized that mayoral control of the Chancellor of NYC Department of Education had a sunset provision, but there it is in New York State Education Laws: two version of � 2590-h, "Powers and duties of chancellor," which are nearly identical except that the current one says, "Such chancellor shall serve at the pleasure of and be employed by the mayor of the city of New York by contract. The length of such contract shall not exceed by more than two years the term of office of the mayor authorizing such contract. The chancellor shall receive a salary to be fixed by the mayor within the budgetary allocation therefor";
and the one to go into effect two years from now says the office "shall be filled by a person employed by the city board by contract for a term not to exceed by more than one year the term of office of the city board authorizing such contract, subject to removal for cause. The chancellor shall receive a salary to be fixed by the city board within the budgetary allocation therefor."

At the moment, the position is being filled fairly ably by Joel I. Klein, previously best known for prosecuting Microsoft while he was assistant AG at the Antitrust Division. He's steered a sensible course between public and private by encouraging charter schools within the traditional public schools, charters that have the same proportion of low-income students and that have to perform at least as well as the traditional publics or get shut down. That New York charters are popularly perceived as successful is perhaps best evidenced by Gov. Spitzer's quickly authorizing that their number be doubled. I'm a little skeptical of Klein's and Prof. Leibman's enthusiasm for standardized testing, but at least they have more sense than to use the test results for decisions on promoting/ tenuring teachers nor grading/ funding schools. Such uses create an incentive for teachers and administrators at best to teach to the test, and at worst to promote cheating.

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June 4, 2007

Choosing Abortion Because a Baby Is "Inconvenient"

Something to think about the next time you hear someone say that women who seek abortions are selfishly taking life in order to avoid an inconvenience.

But what of the concern for, as a ninth grader expressed it, "someone who is often forgotten, the little life who doesn't even have a chance to live."

No one, neither the patient receiving an abortion, nor the person doing the abortion, is ever, at anytime, unaware that they are ending a life. We just don't believe that a developing embryo or fetus, whose mother cannot or will not accept it, has the same moral claims on us, claims to autonomy and justice, that an adolescent or adult woman has. I have never seen an abortion decision entered into lightly by anyone involved. The decision to have an abortion is most often made in the time of the first great personal moral crisis that ever faces a girl, a woman, her family and the people who love them. It is only those who stand outside and condemn the women and families who are faced with these dilemmas who take lightly the decisions made in these straits and trivialize the circumstances in which they are made.

Moral dilemmas are always about difficult problems. Decisions between right and wrong are not moral dilemmas; decisions between right and wrong should be no-brainers and should never be difficult.

It is in deciding between what we consider morally near-equal alternatives that we are forced to make agonizing appraisals. The decision between competing evils or competing goods - these are the judgments that may burn in your mind and live forever in your memory, that fry your soul. And it matters not whether one believes elective abortion a good or an evil, for every abortion decision is made between self-perceived competing goods or competing evils, not between obvious good and self-evident evil.

And something to think about the next time you're fooled into believing prominent abortion opponents are looking out for women's interests.

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NYT Editorials: One All Wrong, One Half Right

Sunday was a bad day in editorials by New York Times staffers, both the editorial board and specifically Adam Cohen. Cohen's piece on Justice Thomas pretends to examine Thomas's "life experience" and its effect on his jurisprudence, and implies that Thomas sold out to the White Man in exchange for personal power. "In college and law school, he identified strongly with his fellow blacks, and was liberal, even radical, on racial issues. But as he accepted jobs from Republicans eager to hire a conservative black lawyer, he shifted rightward."

That doesn't even make sense in terms of causation. Unless these Republicans figured they could just pick up a heretofore radical black law student and mold him through his gratitude into a conservative*, Thomas presumably was showing conservative tendencies before he became a GOP pet. That is, of course, what an honest glance at Thomas's history reveals: his experiences in law school and immediately after, particularly his being treated as unqualified on the assumption that he wouldn't have gotten a given position without affirmative action, embittered him against AA and made him a great Republican mascot. I find it odd that Thomas didn't detect any hint of the scurrilous policy in his being the first choice to replace the first African American Supreme Court justice, but maybe a guy with only a year as an appellate judge and a mixed "qualified/ unqualified" rating from the ABA did seem like the best option.** Cohen ignores Thomas's year at the DC Circuit entirely, making his conservative jurisprudence on the Supreme Court sound like a big shock, even though liberal groups mobilized against Thomas's nomination precisely because they saw what was coming. All in all, a worthless editorial.

The unsigned editorial starts out promisingly by criticizing Vice President Cheney for his latest attempt to obscure who his buddies are: "The Associated Press reported that Mr. Cheney�s office ordered the Secret Service last September to destroy all records of visitors to the official vice presidential mansion -- right after The Washington Post sued for access to the logs. That move was made in secret, naturally. It came out only because of another lawsuit, filed by a private group, Citizens for Responsibility and Ethics in Washington, seeking the names of conservative religious figures who visited the vice president�s residence." This naturally leads to a recollection about Cheney's refusal to "name the energy-industry executives who met with him behind closed doors to draft an energy policy," though the editorial neglects to mention that the D.C. Circuit ultimately vindicated that refusal on the "no vote? not a member!" theory.

I hadn't heard about Cheney's giving "himself the power to selectively declassify documents and selectively leak them to reporters," but certainly his remark about the gall of detaineers who �demand the protections of the Geneva Convention and the Constitution of the United States� was mildly ludicrous by today's understandings of those protections. Nowadays, we give First Amendment protection even to Communists who advocate for a state that does not protect free speech, and we always have given criminal law protections to defendants who "glorify murder." The defendant's ideology and alleged crimes are seldom relevant to his rights under the law.

So far, so good. But then the editorial goes off the rails:

Mr. Cheney is the driving force behind the Bush administration�s theory of the �unitary executive,� which holds that no one, including Congress and the courts, has the power to supervise or regulate the actions of the president. Just as he pays little attention to old-fangled notions of the separation of powers, Mr. Cheney does not overly bother himself about the bright line that should exist between his last job as chief of the energy giant Halliburton and his current one on the public payroll.

From 2001 to 2005, Mr. Cheney received �deferred salary payments� from Halliburton that far exceeded what taxpayers gave him. Mr. Cheney still holds hundreds of thousands of stock options that have ballooned by millions of dollars as Halliburton profited handsomely from the war in Iraq.

Reviewing this record -- secrecy, impatience with government regulations, backroom dealings, handsome paydays -- it dawned on us that Mr. Cheney is in step with the times. He has privatized the job of vice president of the United States.

The theory of "unitary executive" is not that the other branches have no power to check the president, only that their powers cannot be executive ones because all of those are vested in the president. Note that Bush has not yet dared to defy a Supreme Court decision on the ground that it overreaches into executive power. I consider this theory to be wrong both Constitutionally and prudentially, but it's slightly less insane than the quoted description implies. The separation of powers still exists -- indeed, it's made exceedingly important -- yet is misshapen to maximize precisely the branch of government whose power the Founders most feared.

While Cheney's retained stock options are a little dubious (stock ownership inherently gives the shareholder a interest in Halliburton's future, and unless the Cheneys are refusing the charitable deduction for their dedicated donation of the options' profits to universities, they still get a financial benefit), there is nothing very odd about deferred salary payments; they are a common way to minimize tax impact. The Times editorial board just makes itself sound foolish by putting scare quotes around the phrase. Many workers have various sorts of deferred compensation, and will not see this as obviously sleazy.

I'm not even sure what it means to privatize the job of vice president. Cheney's "handsome paydays" from Halliburton are for work he already did. Surely the Times doesn't think Cheney should be getting paid more by the taxpayers? I agree that Cheney is fond of secrecy and is impatient with government regulations, but these also were traits of Nixon, who hardly can be accused of privatizing the office of the presidency. (Indeed, Nixon probably was one of the more economically socialist presidents we've had, while also being credited both for the modern imperial presidency and the public support for ratcheting that power back.) I'm quite skeptical about the privatization of government functions, but throwing around the term as a catchall synonym for "bad" is stupid.

* Had they taken a tip from Thomas himself, perhaps they would have known to inflict the film version of The Fountainhead on those they needed to brainwash. I am going to be amused if Rand fan Will Baude ends up clerking for Thomas, but even more amused if a SCOTUS applicant who dislikes Rand's work gets that job and has to watch the movie. The whole courtroom speech at the end of the book went into the movie intact.

** Roberts's tenure on the DC Court of Appeals was not much longer -- only two years -- but he received a unanimous ABA vote as "well qualified." He had argued 39 cases before SCOTUS as Principal Deputy Solicitor General, and another 39 in private practice, as well as having a Supreme Court clerkship under his belt. Had his nomination to the DC Circuit by George HW Bush not expired, he would have accumulated as much time on the appeals court, during the Clinton + first Bush term drought of Republican nominations, as Justice Ginsburg did after her 1980 appointment by Carter, which gave her 13 years to wait for a Democratic president.

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Torture Memos or Torture Briefs?

Prof. Dorf makes the implausible claim that law schools train lawyers to think about what their clients morally should do as well as what they legally can do: "As for legal education, the whole point of the Socratic method is to bring out the moral and policy consequences of various rules of law, so that, to the extent permitted by authoritative sources, one can select the best rule under the circumstances." Having taken one of Prof. Dorf's exams, if he was expecting answers that considered explicitly moral consequences of various rules of law, I at least can console myself that my mediocre grade was due to a failure to meet that expectation rather than a general lack of Fed Courts understanding. Certainly my other professors never have indicated that they wanted us to discuss what the client morally ought to do. I'm not even sure how to apply that to something like my tax classes -- on an individual basis, presumably one morally ought to pay lots of tax and support the government, but on a corporate basis, one's obligation is to shareholders and thus to corporate tax minimization so the money can be passed on to shareholders who then as individuals can pay lots of tax.

Professional Responsibility is our ethics class, but it essentially comes down to 1) not intermingling with the client unless we tap that ass before it is client ass; and 2) steering between the Scylla of the bar and the Charybdis of government subpoena when it comes to disclosing privileged information. Telling our client the moral course and refusing to tell him what are the other options, which though less moral are still legal, is a good way to get into trouble for bad practice of law, just as nowadays doctors aren't supposed to act paternalistically in presenting only the treatment they think you should pursue.

A more interesting point is raised in the comments. Jamison Colburn says, "I do, however, recall a colleague who teaches ethics and methods suggesting at the time that the torture memos were a category mistake: they were packaged as an unvarnished presentation of the law when, in fact, they were an exercise in subtle twisting usually reserved for appellate papers." For any reader who hasn't gone through legal research and writing, there are two main types of writing law students are taught. The first is the memo, which is supposed to be "an unvarnished presentation of the law." The underpaid and underappreciated LRW teacher hands out a hypothetical case and we research and write a memo that evaluates the client's chances in court. It is not supposed to be biased in favor of the client, because that would be completely useless; the client -- and if working contingency, the firm -- wants to know whether this case is worth pursuing. The second is the brief, in which even a supposedly neutral portion like the Statement of Facts is presented to emphasize those facts that favor one's client and disfavor the opposition (like their saying her mastectomy was a "boob job"). This is literally a somewhat academic distinction; in practice, what gets the catchall label "memo" slapped on it may have been requested as, "How can we structure this transaction to minimize exposure to regulation?"

If Bush asked for a dispassionate assessment of the legal arguments for and against his intended treatment of detainees, he was poorly served by the work produced by Messrs. Yoo and Bybee. If, as I find more likely in Bush, he asked for them to figure out the best arguments to give their client the broadest possible scope for action, then they delivered.

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June 3, 2007

Structural Invisibility, Individual Singling Out

Maggie Gallagher wrote that "you may have seen the story on the lawsuit on eHarmony. You may not know about a recent case in which a federal district court ruled an Arizona adoption biz could be forced by Calif. orientation law to serve gay couples on its adoption website." I appreciate her calling attention to these articles, as I hadn't heard about either story.

The NYTimes story on the eHarmony lawsuit isn't very clear, and the possibility of discrimination is in the details. I'm on eHarmony's side if the lawsuit is based entirely on the site's not offering a "men seeking men" nor "women seeking women" option. This may be bad for their business because they're missing out on a non-negligible portion of the population, but if they're basing their sell on having done extensive research into how to form lasting marriages, this possibly may be somewhat different for opposite-sex relationships than for same-sex ones. For example, if eHarmony wants to come across as helping people bridge their differences based on sex (hence the "harmony"), that would not be an advantage in getting same-sex couples together. I wouldn't want to use a dating site that is intensely gender-oriented, but if you're a Focus on the Family type, this might be your kind of site. On the other hand, if the plaintiff in the suit attempted to sign on and the site literally would not accept her account because she described herself as a lesbian, that's discrimination and I hope she wins. If a lesbian wants to be on a website where if she picks the W-S-M option she's going to be getting a lot of gross messages from guys who think this is their chance for a threesome, and if she picks the M-S-W she's going to get ignored by the women, hey, it's her time to waste. The company is not obligated to make a major structural change in itself -- i.e., by having to do research on what keeps same-sex couples together -- merely because someone wants them to offer a particular option.*

That type of discrimination does appear to be the case for the adoption suit that settled, where there is no "knocked-up teen seeking [fill in the blank] parents for baby" menu on the website. If Adoption.com is truly seeking to serve the population of pregnant women who need parents for their forthcoming spawn, it should include the profiles of all people who seek to be adoptive parents. If a pregnant woman picks the gay couple, that's her choice. It's a choice plenty of such women have made. Gay couples often are more accepting of kids that straight couples, still fantasizing about the kid they'd wanted to make together, would consider too damaged. I don't see any structural change that would have to be made at Adoption.com for it to allow same-sex couples to post their profiles. The site does no work itself; it relies instead on state adoption attorneys or agencies vetting the couples even to do the qualifying home study. They claim,

We are aware of a large body of social and scientific research that supports the historically-established premise that children will have a better chance of doing well in their lives if they are raised in a stable, two-parent family environment, under the nurturing influence of both a mother and a father, and that fathers and mothers can each make significant and very unique contributions to the emotional, intellectual, social, physical, spiritual and gender development and well being of children. Although we realize that this point of view is subject to a substantial amount of public debate, we still find it to be consistent with our own personal and religious beliefs and what can easily be observed from decades of social development in this country. We have therefore found this position to be persuasive in helping us establish the conscience and traditional family-based policies of the Website. We are very aware that our beliefs regarding what rights children have, what is in their best interests and how the rights of children should be protected are not shared by everyone. We are therefore grateful to be part of a civil society in which private citizens are free to express and act in conformity with their own individual beliefs.
What scientific research is this? Paul Cameron's? Maybe eHarmony just has better PR people, but I can roll with their explanation that they don't understand the dynamics of same-sex relationships and don't want to hold themselves out as doing so when what they are promising is your Soulmate. I cannot condone Adoption.com's relatively hands-off approach to facilitating adoptions that still manages to discriminate against same-sex couples. Homosexuals are the only people who can be approved by the state yet not use Adoption.com, while people on their fourth marriage, too old to chase after small children easily, and many others who would not be considered "best" parents by some standards** (like China's!) are totally OK for Adoption.com. That doesn't come across as a sincere attempt to do what's best for the children getting adopted; it comes across as bigotry and discrimination against homosexuals.

* I know those who have read my posts about same-sex marriage immediately are going to think, "If eHarmony doesn't have to restructure itself to accommodate same-sex couples, why should the legal institution of marriage have to do so?"

1) eHarmony is a single provider in a massive market of dating websites, and there are dating websites that cater exclusively to homosexuals. The plaintiff in this case has plenty of options to find a mate online. She doesn't have plenty of options to get married offline. The market is working; the government is not.

2) The government has a higher obligation not to discriminate than the private sector does, particularly in the provision of benefits. Homosexuals pay the same taxes as heterosexuals.

3) The government has to recognize marriages if they meet certain basic requirements (the parties are of age, not closely related, not already married). eHarmony would be completely different if it just threw up a bunch of profiles and let whoever hook up with whomever. Its business model is based on having Dr. Neil Clark Warren's algorithms decide who's your ideal mate.

I often say that opposites do attract, and then they attack. It is downright exciting to find that someone who is quite different from you is very attracted to you. But, over time, when you have to negotiate all these differences and try to find one compromise after another, the task often becomes daunting.
It is so much better to find someone to love who is a lot like you. We have dozens of empirical research studies that stand behind this statement. ...
Similarities in areas that are really crucial to persons are the most critical similarities of all. If spiritual orientation, for example, is highly defined and passionately held for a person, it would be a mistake to try to match them with someone with a significantly different spiritual orientation. The same is true of politics -- and any other body of convictions and values about which people often feel very strongly.
I bet Dr. Warren's calculations don't stretch to encompass having people who describe themselves as evangelical Christians go off with fundamentalist Muslims, yet the government's marriage laws do.

4) There is no way in which legal marriage would have to be changed to accommodate same-sex couples. As I've said many times, marriage law has become essentially gender-less. In some state laws, men still are described as husbands and women as wives, but the duties and benefits each receive from marriage are the same. Men can get custody of children, women may have to pay alimony, and they are equally responsible for the support of the other during the course of the marriage.

** I once had a reasonably sane person suggest to me that boys needed fathers because the boys would reach an age, while still a minor, where they would get too big and strong for the average woman to be able to restrain them physically. Coincidentallly, my parents know a couple who are much smaller than their youngest child grew up to be, and when he went through a wild phase, they were indeed unable to cope with him physically and ended up sending him to a military school. If Adoption.com also thinks this is a necessary quality in a father, presumably they are discriminating against couples where the father is in a wheelchair or lacking in upper body strength. I'm not really sure how you predict a man's body strength in 15 years compared to where his infant son will be at that time, but I'm sure the sophisticated scientific research Adoption.com accesses can provide some answer.

Posted by PG at 10:37 PM | Comments (0) | TrackBack