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Like a fair number of other people, I'm completely captivated by Bryan Garner's videotaped interviews with Supreme Court justices on effective brief-writing. There's no shortage of insights to be gleaned from these discussions -- particularly from the Chief Justice. Of all of the interviews, however, Justice Scalia best summarized what's at stake in brief-writing with an anecdote from his D.C. Circuit days (roughly three and a half minutes into his first interview segment):
Let me say first of all how important lawyers' briefs are. One of the happiest events of my life was when I was sitting on the Court of Appeals for the D.C. Circuit, we had a lot of administrative law cases, which tended to be long cases with many briefs, and I remember one case we had, involving standards for automobiles. And there were a lot of intervenors and amici and what-not, and I read brief after brief, and I was really getting pretty punchy.
And I picked up this one brief, and all of a sudden it really captured my attention: Everything was so felicitously put, it was elegant, it was crisp, you could see where the writer was going.
And I said, who wrote this brief? And I turned over the front and it made me so happy to see that it was one of the best lawyers in Washington. And it made me very happy to know that you can tell the difference, you can really tell the difference.
(From what I can tell, he's referring to Center for Auto Safety v. Peck, 751 F.2d 1336 (D.C. Cir. 1985). I won't try to guess which brief was his favorite.)
Brief-writing is the most-enjoyable part of my enjoyable job. What I wouldn't give to someday write briefs that impress judges as much as the unnamed intervenor's brief impressed then-Judge Scalia.
A Side Note: Justice Scalia and his interrogator, Bryan Garner, are collaborating on a book on effective advocacy: Making Your Case.
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On Monday, Treasury Secretary Hank Paulson unveiled the Bush administration's "Blueprint for Stronger Regulatory Structure," its latest response to the sub-prime mortgage crisis and severe case of influenza affecting America's financial markets. No surprise, the plan calls for some fairly sweeping changes in the way the SEC, Federal Reserve, and other agencies regulate America's financial markets. According to the Post:
. . . Treasury Secretary Henry M. Paulson Jr. said he also plans to ask Congress this year to set up a new agency to oversee mortgage lending and take action to enhance his department's role as the chief regulator of financial markets.
The Treasury's initiatives seek to sweep away the current patchwork of regulation over the coming decade in favor of three more powerful agencies to oversee banking, market stability, and consumer and investor protection. The plan's authors have argued that such changes are needed because government oversight has not kept up with the pace of financial innovation.
Paulson acknowledged that the recommendations would not prevent future crises but said that they would make government more nimble in addressing them. "We should and can have a structure that is designed for the world we live in," he said in a speech at the Treasury.
Uh huh. So, let me make sure I have this right. The administration embraced deregulation and free market theory as if it were handed down from Mt. Sinai. It then sat idly by while the sub-prime mortgage market imploded, and watched as that market's failure trickled up into other sectors of the economy. All the while, this admistration spent taxpayer money like a drunken sailor (to use Sen. John McCain's memorable phrase), running up the federal debt and mortgaging our grandchildren's future. And the administration pursued wars in Iraq and Afghanistan likely to cost the country $3 trillion. And now, they want the people trust the Bush administraiton by giving it more power over the American economy?
Wall Street, meet the unitary executive. Another day, another crisis, another power grab.
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DealBreaker offers possible reasons underlying disparate reactions to the Treasury Department's well-publicized new reorganization proposal.
Pure conjecture? Surely. But entertaining conjecture nonetheless.
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When law firms institute family-friendly policies (flex hours, reasonable work loads), who benefits? That depends how you measure it. Mothers at these firms are neither more nor less productive than mothers at other firms, as measured by billable hours, according to a new study of 670 lawyers in Alberta, Canada, by sociologists Jean Wallace and Marisa Young. But fathers at family-friendly firms are less productive than fathers at old-style firms. At the same time, fathers with help at home, like stay-at-home wives and weekly cleaning services, increase their productivity at work, whereas women with stay-at-home husbands and cleaning aren't more productive.
What's going on here? Wallace and Young argue that fathers tend to consider breadwinning an all-important family contribution, so when they have more help at home, they respond by working harder. Also, men are far more likely to have a stay-at-home spouses than women are. Women, on the other hand, seem to sink more time into their kids, if they have it.
The happy spin from the authors is that the family-friendly policies aren't hurting the firms vis-à-vis their women employees, which makes the policies seem less costly. (Their original hypotheis was that the family-friendly firms would find that mothers were less productive, since these policies are often seen as the path to mommy tracking.) The finding about the men working less, though, throws a wrench into the discussion, doesn't it? Mothers are soldiering on for the firm, in gratitude for the break from crazy expectations or for whatever reason. Men are not. The authors ask, "How are men using their free time as a result of working fewer hours?" and then cite other evidence that men may plow their time into more leisure activities. Is that perfectly understandable, or is it shirking? Who's modeling the good behavior here?Given how hard law-firm lawyers often work, are fewer billable hours, whatever the equities, a reason to celebrate? It's hard to tell, but the gender split is there to be mulled over.
Over at Legal Blog Watch, Carolyn Elefant argues that billable hours are a bad measure of productivity. That makes sense to me as a reason that this study may not translate to other professions in which parents can argue they work more efficiently, squeezing more work into less time. But it doesn't seem like a salient criticism of these findings, since hours are firms' explicit measure of productivity.
I posted a version of this earlier over at XX factor, and now I'm curious about the reception to these findings in this neck of the woods.
Read more about the billable hour and family-friendly practices on Convictions, and a discussion on the same topic at our women's blog, XX Factor.
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The new issue of the Legal Times ($) includes several Washington law offices' explanations of their respective efforts to "go green." The firms' solutions are laudable if, often, commonplace: more recycled paper and double-sided printing, shifting communications from hard copy to electronic copy; energy-optimized computers; even encouraging "voluntary 'green pledge[s]'" from attorneys and staff.
Still, when it comes to going green, large law firms are at a distinct disadvantage to new solo practices. While most large law firms, by tradition or force of habit, rely on endless volumes of paper records and archives, tech-savvy solo practices may well go virtually paperless.
Of the many competitive advantages that large law firms boast over their solo counterparts, going green almost surely is not one of them. Getting a "biglaw" firm going as green as these solo shops strikes me as something akin to teaching an elephant to dance -- possible, but requiring a fanatical degree of commitment.
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In his new book, Eric Lichtblau accuses Rep. Jane Harman of having supported the NSA wiretapping program until it was revealed, and then hypocritically opposing it thereafter. In defense, Harman gives this story, which sounds plausible:
1. She and seven other members of Congress were told the basic outlines of the program.
2. They were instructed that they could not tell anyone else -- including their staffs and other members of Congress.
3. They were assured by the Administration that the program "complied with the law and that the senior-most officials in
the Justice Department conducted a full legal review every 45-60 days."
4. "The Gang of Eight was not told – nor did it occur to me – that the
Administration was violating FISA, despite Congress’ clear legislative
intent when FISA was passed that it was the 'exclusive means' for
monitoring the communications of Americans connected to foreign
intelligence."
5. When the New York Times broke the story, Harman "was finally free to consult constitutional experts on the legal issues
it raised. My call to a former CIA general counsel that Saturday
provided the first inkling that the program was in not compliance with
FISA but was conducted pursuant to claims of 'inherent' executive
power. To this day, I have not been shown the memoranda produced by the
Office of Legal Counsel to support the basis for the program!"
6. Once she learned that the program was a violation of FISA, she opposed it.
This is basically the exact, same sequence of events that occurred when Harman learned of the CIA interrogation program: The problem is systemic. (Really, the parallels are uncanny. Go back and read that post.)
Actually, there are at least two very basic, huge problems here:
First, Harman and the other seven members of the Gang of Eight themselves are not only far, far too cozy with the intelligence community they are overseeing, and far too credulous of what they are told (even after repeated incidents such as this one), but, more to the point, they know far, far less about the law they are overseeing than do the officials in the Executive branch who are implementing those laws. As soon as the NSA program was publicly revealed, literally hundreds (if not more) lawyers and others realized that its legality was highly questionable -- and we all presumably had far less knowledge of the details than Harman did. But for some reason, it did not even occur to Harman that the program described to her might be legally tenuous. She took DOJ's word for it.
Second, and more importantly, even if Harman had had doubts about the legality of the program, what could she have done about it? She couldn't speak to her staff, to her colleagues, or to anyone else well-versed in FISA or the law generally. If she had insisted on seeing the OLC memoranda -- which she certainly should have done -- what could she have done when the Administration refused to provide them (as it has continued to do to this day)? If she had told her staff and colleagues, the Administration would have ceased to brief her on classified matters (notwithstanding that that would be unlawful) -- and then the whole point of the oversight enterprise would have been defeated.
As I've previously written, t
Continue reading at Balkinization . .
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Paying due respect to John Adams, Esq., the founder now coming to life in a teleseries, Adam rues the absence today of more than a "lucky few" capable of "deep political, philosophical, and legal argument." An HBO subscription's outside my monthly budget; nonetheless, I've listened to the David McCullough book on which the series is based, to the Ron Chernow work on Alexander Hamilton that Adam also cites, to a work on Thomas Jefferson, on whom Orin chimes in, and to a number of other founders' biographies. Thus I add to their thoughts my own "modest contribution."
It's an understatement to say that the achievements of these fellows were awe-some, in the deep meaning of that word. In so doing, however, we ought not to discount our generation of attorneys. Many of us came to law school broadly schooled in the arts and sciences of human endeavors like politics, literature, logic, biology. Perhaps it is only a lucky few of us who've studied Latin, as the founders typically did. (I thank my father for my own good luck in that regard.) But many of us have far more than a passing acquaintance with still-spoken languages other than English -- and that is more, McCullough's book revealed, than Tout Paris would've said of John Adams or, for that matter, of Ben Franklin.
So why the dearth of depth in legal argument and practice?
Surely some blame may be cast on contemporary legal culture. 1st, there's the way that we learn and practice. Endeavoring to extract precise "holdings," law today tends not to privilege deep thoughts that may lie in the text, subtext, or context of prolix judgments. That, in turn, tends to give little cause for consulting any dog-eared schoolbook we might've carted with us from one move to another. 2d, as Adam notes, there's the time that we're expected to devote to this narrower-scoped legal practice. Electronic gadgets have made our work truly 24/7. It's hard to keep up on Aeschylus -- check out Robert F. Kennedy's off-the-cuff quote of that ancient Greek the night that Martin Luther King Jr. was killed -- when the BlackBerry's beeping.
But let's not forget some important caveats. 1st, Adams, Hamilton et al. were the "lucky few" of their times; far more early Americans lived out lives of far less achievement. 2d, many of these men owed to others their leisure to think as well as act, to pen prose even as they practiced law. John Adams owed much to Abigail Adams, who, McCullough wrote, well managed the farm and household in Braintree in order that her husband might focus his energies elsewhere; in turn, all the Adamses owed much to domestic servants. Abigail's father kept slaves, and of course slaves were forced laborers on the lands of many other founders. Theirs was an economic arrangement this country did well to abandon.
Even as we hold our founders' achievements in awe, then, we must remember their full, complex, and not always laudable stories. And we should not sell ourselves short. Sure, we should make more use of our own breadth and depth of knowledge. At the same time, we should take much comfort in the rich diversity, in class, sex, age, ancestry, and experience, of all of us who today think about, write on, and practice the law.
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continue reading at Balkinization . . .
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In this bloggingheads.tv episode involving my co-bloggers Dahlia Lithwick and Richard Ford (I checked it out because I wanted to confirm that they have corporeal existences and are not merely algorithms invented by Slate's IT staff), Dahlia accuses the Bush administration of hypocrisy for claiming, in the Omar and Munaf case, to be concerned about respecting the sovereignty of foreign countries. The Bush administration, after all, did not care so much about the sovereignty of Iraq as to refrain from invading that country. Iraq aside, is it hypocrisy for a nation to profess respect for international law but then to violate international law whenever doing so is in its self-interest, when all other nations are doing the same thing?
Hypocrisy is something more than dishonesty: not all liars are hypocrites. It seems to have more to do with lying about one's character. A hypocrite holds himself out to be sincere, courageous, respectful, honorable, and in all other respects virtuous, when he or she is none of those things. However, often hypocrisy is a socially necessary trait, and we frequently observe groups of people profess respect for norms, ideals, or aspirations that no one obeys. In such cases, you will often find a few individuals who refuse to go along with the game and pronounce themselves outraged that people are not acting consistently with their words. We need a new word to describe these critics-people who confuse ordinary hypocrisy (which is bad) and social hypocrisy (which is necessary and unavoidable), and accuse everyone of hypocrisy because they act like human beings. Let me propose a new word for this trait: literocrisy. The literocrite condemns people for uttering social lies that no one believes.
When Captain Renault, says "I'm shocked, shocked to find that gambling is going on in here!", he's not being a hypocrite, he is satirizing the literocrite. When everyone understands that gambling is going on, even though everyone professes not to believe that gambling is going on, only the literocrite is outraged. The literocrite believes that people should always be candid about their motives, even when there are good social or political reasons not to be.
Governments understand that they cannot always act consistently with public opinion, in their own countries and elsewhere. And so governments rarely give candid explanations for their actions. This is driven by political necessity: if your support is derived from a coalition of diverse groups, you want each group within the coalition to believe, as long as possible, that the government serves their interests. And so when the groups' interests converge in favor of a particular policy, but are based on different ideological commitments, the government wants to act consistently with the overlapping interest without risking controversy by taking a position on which of the ideological commitments it cares about--hoping to put that off till a later day when no such ambiguity remains possible. When critics detect inconsistencies between the words and the behavior of governments, one can imagine the government officials saying to each other: "What literocrites! Do they really believe that a functioning government can always be honest about its motivations?" And, indeed, because some journalists are not literocrites, but understand exactly what is going on, while realizing that there is good copy in pointing out government hypocrisy, we should recognize that these literocrites are also hypocrites-professing to be literocritic when they really are not.
To be sure, some people are fooled by these governmental statements. The hard case arises when insiders understand the lie and outsiders do not, but most observers would agree that the lie is socially necessary and probably harmless. Here, there is a narrow line between literocrisy and mere truth-telling.
One of the great sources of literocritic confusion is the law. Law professors (or most of them) have believed since the legal realist movement of the 1920s, that when judges decide cases according to the "law," they are in fact smuggling in personal and political biases, whether they know it or not. Judges virtually never admit that this occurs. Many judges may not believe it, statistical evidence notwithstanding; others probably believe that admitting that their biases might influence their decisionmaking would weaken the legitimacy of the courts, even though bias is unavoidable and there is no realistic solution to the problem, and even though most (?) people suspect that judges have biases. When journalists detect biases in judicial opinions, and express outrage, and accuse the judges of hypocrisy, they sound like literocrites to jaded law professors like me and Jack-who says that he was not "shocked, shocked" to hear from Dahlia that Supreme Court justices' political biases were on display during oral argument.
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Courage, Orin! Your question was a good one and Jack did not answer it. He draws an artificial distinction between questions of constitutional legitimacy ("Rather, living constitutionalism is primarily a theory about the legitimacy of the constitutional system taken as a whole: how and why constitutional doctrine changes in a way that preserves its legitimacy over time.") and questions about how justices should decide cases. He insists the questions are separate, but they are not--at least, not if the justices care about the legitimacy of the constitutional system, as they most certainly do. Here's Justice O'Connor (Planned Parenthood v. Casey), who even uses the word "legitimacy" over and over again.
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States, and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money, and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means, and to declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is [505 U.S. 833, 866] obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.
... However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court.
... That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its [505 U.S. 833, 867] decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
... So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. ...
... It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.
Jack himself has subterranean doubts about this distinction, which keep bubbling to the surface. "Giving advice to judges is not really the goal of the theory." "It is probably best not understood as a theory advising judges...." "It may not be advice directed to individual judges, or, if it is, it must be far more than that." It might not be intended as advice, but Jack's theory certainly has implications for judicial decisionmaking--not necessarily that justices should do the politics of the president that appoints them, but that they should do whatever is necessary to maintain the legitimacy of the system. Why he denies, or may deny this, I don't understand, either. And if the implications are odd or don't seem right, that will cast doubt on the theory, even though the theory itself is intended to answer an entirely different question, and even if Jack himself is not interested in the judicial advice question.
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Eric Lichtblau, in an excerpt
from his forthcoming book, confirms that the NSA wiretapping program
was operated beneath an unprecedented and remarkable veil of secrecy.
He confirms Jack Goldsmith's earlier testimony
that the Deputy Attorneys General (Larry Thompson and then Jim Comey)
were not permitted to be read into the program and, more astonishingly
still, that the lawyers at the NSA itself were not permitted to see the
John Yoo-penned legal opinions that provided the basis for the program
the NSA was operating! (I can't even imagine what those meetings looked
like: "No, really -- you guys do
have the legal authority to secretly violate FISA; but we can't show
you the legal theory why that's the case. Just trust us." And the NSA
responded: "Oh, in that case, ok, we'll get right on it." Huh?)
The
story also appears to confirm that the original Yoo legal theory was in
effect that the President could disregard any laws he wished in
deciding how to surveille al Qaeda. How often have we heard this?: "[Yoo's Opinion] was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers."
I
don't think there's much more to be said about this that many of us
have not already said multiple times over -- except that it remains
scandalous that the Congress would even consider the Administration's
requests for new legislation until the Administration has made public
the entire set of OLC opinions on this issue and interrogation
techniques, etc. (redacted, of course, to protect secret NSA
technological capabilities). Congress has quite a bit of leverage here;
they simply seem unwilling to use it.
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Jack, my apologies for not understanding your earlier posts. Reading over your latest post, I now understand that your view is that each Justice should do his or her thing; as long as the decisions are drawn from shared legal norms, the system will work out pretty well over time. I appreciate the clarification, and I'll just repeat that I do think this is really quite similar to Justice Kennedy's view of the Constitution and constitutional change.
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continue reading at Balkinization . . .
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If I understand Jack's account of "Living Constitutionalism" correctly, the basic idea is that (a) Justices will naturally pull the Constitution in the direction of what they see as sound public policy, and that (b) this is a good thing, as we end up with an updated Constitution over time that balances traditional Constitutional values (the rule of law, etc.) with modern needs. In other words, the system actually works pretty well without any fancy theory at all.
Assuming I'm correct about Jack's approach, here are two quick responses:
First, it is quite similar to that of my former boss, Justice Kennedy. As Justice Kennedy explained most clearly in his Academy of Achievement video interviews, his solution to the countermajoritarian difficulty is that the people want the Court to play a modest but important updating role. They want the Justices to use their insight to reinterpret the Constitution so that "every generation can invoke its
principles in their own search for greater freedom." The idea is basically the same as Jack's: The Court both enforces the Constitution against some majorities and yet also updates it slightly in response to changing majority views.
Second, I'm curious about how Jack would advise Justices tasked with deciding cases who need a bit more guidance than Jack's instruction to decide cases "the best way they can." Take the case of Justice Frankfurter, put on the Court by Roosevelt in 1939 back when judicial restraint was considered a liberal position. By the time Frankfurter left the Court in 1962, the Supreme Court's changing caseload had reversed the political valence of Frankfurter's model of the judicial role. Deference to the elected branches had become a conservative position rather than a liberal one. Would Jack have instructed Frankfurter that "times have changed," and that he needed to abandon his deferential approach? If so, why -- because Frankfurter was put on the bench to be a liberal, because new social movements were afoot, or both?
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If we're going to be admiring the Framers for their many diverse talents, as Adam White ably does below in his post on John Adams, then don't forget ol' Tommy Jefferson. Sure, he was a political philosopher, principle author of the Declaration of Independence, State Governor, and the third President But he was also a world class architect, scientist, cryptographer, and inventor. President Kennedy put it well in 1962 when he introduced a roomful of Nobel Prize winners at the White House by saying, "I think this is the most extraordinary
collection of talent and of human knowledge that has ever been gathered
together at the White House -- with the possible exception of when Thomas
Jefferson dined alone."
He was hardly a perfect man, of course, but his range of talents was truly astonishing.
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Tonight, HBO offers Episode Four in the gripping seven-part mini-series, John Adams. No doubt, each viewer takes something different away from the series; here is my modest contribution.
What I enjoyed in the early episodes was seeing such deep political, philosophical, and legal argument coming from a practicing attorney.
Today, of course, our world is much more stratified: the lawyers practice law, the professors engage in abstract legal/philosophical debates, and the politicians debate in the arena of government. Rarely do players cross from one sphere to another, and even less commonly do they occupy multiple spheres at once.
What a far cry from the founding era! John Adams not only entered the political arena while practicing law full-time, he even maintained his practice until December 1777, when he participated in his last case at the bar. (According to The Legal Papers of John Adams, his last case was Penhallow v. The Lusanna, a prize cause in the Court Maritime of the State of New Hampshire. Unbelievably, that case reached the U.S. Supreme Court in 1795.) According to the preface to his collected Legal Papers, he briefly considered returning to full-time practice after his presidential term ended, but never did.
The best example of the founding-era lawyer-writer is, of course, Alexander Hamilton, who despite a full-time practice found the time to write his Federalist Papers -- his contribution to one of the most cogent arguments of political theory in modern times -- on the side! (As biographer Ron Chernow once said at a book fair, "he was moonlighting the Federalist Papers!")
No doubt, both legal practice and the legal academy have changed since the founding era, and it's far-fetched to think that an Adams or Hamilton could have nearly the same impact on legal debate from a full-time practice as they did in their respective moments of achievement. Legal practice is perhaps too time-consuming and lucrative; legal teaching and writing is perhaps too stove-piped and insulated and segregated. The lucky few who exist in both worlds are the exceptions, not the rule.
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Interesting as the debate over FISA has been, I think this report is important -- the first really serious empirical study of inclusionary zoning, the mechanism whereby localities try to use their zoning powers not to exclude low income housing but to ensure its production. The study suggests that a standard line against inclusionary zoning measures is wrong; the evidence indicates that efforts to create affordable housing through regulation do not ironically impede its production, anymore than minimum wage laws invariably reduce emploment opportuinties. In any event, you can read it here.
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Jack defines living constitutionalism as follows (critique to follow):
Under this model of living constitutionalism, successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations. ...
This model produces a system of judicial interpretation that is responsive to democratic politics in the long run but not directly controlled by it in the short run. It preserves constitutional law's relative autonomy from politics in the short run while making it responsive to constitutional politics in the long run.
It also involves a system of judicial review but not a system of judicial supremacy. This distinction is crucial: Courts act as a stabilizing force, and hold officials (and especially executive officials) accountable to law, but they never have the last word. The purpose of judicial review in this model is to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities, and to prevent quick and drastic changes in those constitutional values unless there has been extended and sustained support for change that is reflected in long term changes in constitutional culture.
Moreover, in this model judges do not have to do anything special or out of the ordinary to participate in the process of living constitutionalism. They don't have to be politicians or moral theorists or divinities like Dworkin's Hercules or philosopher kings. They don't have to be smarter, or wiser, or more moral or more farsighted than anyone else. All they have to do, once they get appointed, is to try to decide the cases according to law, in the best way they can. If they just go about doing their jobs, they will, in spite of themselves, participate in the gradual translation of changing constitutional politics into constitutional law. Meanwhile the job of people like me, and Dahlia, and Eric, and everyone else, is to criticize how they interpret the law and to try to persuade other people, and them, that our interpretations of the Constitution are the best ones and that they should agree with us.
I emphasized three features of this theory in the passage. (1) The purpose of judicial review is to protect the values of temporally extended majorities. (2) All judges do is decide cases according to the law. (3) Observers can criticize them for failing to decide cases according to the law.
If I understand Jack correctly, the first feature is the structural aspect of living constitutionalism, while the second and third features are something like normal judging and criticism that occurs within that structure. The lynchpin of the system is that "political" appointment to the judiciary of people with (unavoidable human, partisan) biases that are appealing to the elected officials who select them, plus lifetime appointment, result in the protection of the values of the temporally extended majorities; but the judges themselves just decide cases in what seem to them in the appropriate manner, and the rest of us criticize those judges for violating legal craft values when they do. This system as a whole provides stability while also "changing with the times" in a manner that approximates public values: hence it maintains its legitimacy for the public, which wants just those things.
Jack warms my heart by comparing constitutionalism to markets:
Suppose for example, that we want to design an efficient market. We ask how its design and incentives produce certain types of results, and if it does not, we redesign the market and shape the incentives. We do not spend very much time giving advice to people in the market about how to behave so as to produce efficiency; rather we assume that efficiency arises from the sum of their interactions, and not from each of them following our advice about how to behave. In fact, it may be a mistake to focus primarily on advising individual people about how to behave in the market, although educating people about costs and benefits, might be a good idea; so too much be educational campaigns to shape people's values and preferences. Another example of a focus on systems is our Constitution's separation of powers. It tries to preserve republican government by balancing contrasting interests, under the assumption, as Madison put it, that enlightened statesmen (the sort who would respond to good advice) will not always be at the helm.
I take Jack to be saying that we should distinguish between constitutional design (designing an efficient market) and individual case outcomes (advising someone to charge a certain price). We should recognize that a market may be efficiently designed even if some individuals make bad pricing or purchasing decisions; we should recognize that a constitution may be legitimate even if some judges make bad decisions.
Alas, I don't think the analogy works. If a business sets prices too high, it loses its customers and folds; if it sets prices too low, it loses its shareholders and folds. When it vanishes, another firm takes its place. The business's bad decision doesn't have any effect on the overall structure of the market-the system of property and contract rights that are enforced by courts-or even the market's output.
When a Supreme Court justice makes a decision, however, that justice does affect the system. Jack wants courts to protect the values of temporally extended majorities: that's part of the "structure." But justices can change this structure if they want to. They can, for example, make it harder or easier for Congress to pass laws (for example, by adopting narrow constructions of statutes, inventing new rights, etc.), in this way making it harder or easier for the temporally extended majority to have its way.
Or, to go way back to the beginning of the discussion, when Dahlia was criticizing the Supreme Court for (presumably) making a bad decision in Heller, and Jack wrote a response describing how living constitutionalism works, I (and Dahlia) thought that Jack meant that Dahlia shouldn't bother criticizing the Supreme Court for allowing political biases to influence decisionmaking. If she doesn't like the way judges decide cases in a manner that reflects their political biases, she should join a social movement and effect political change through politics. Now it is clear that Jack didn't mean that Dahlia should stop criticizing the justices. Jack says that Dahlia should go ahead and criticize the opinions; perhaps she'll persuade the justices to change their minds. But Dahlia should recognize that the system as a whole remains legitimate, and that she'll get her day when her political views prevail at the polls.
I think, however, that Jack's theory has more radical implications for Dahlia's job than he says.
To see why, suppose that our system is legitimate precisely because, as Jack says, it allows temporally extended majorities to entrench their political preferences beyond their time in power. And let's say that such a system is not just legitimate; it's actually best or as good as one can hope for (perhaps that's why its legitimate).
Now consider Dahlia's worry that the (future) Heller decision will entrench a politically conservative outcome, one that we won't be able to eliminate until many decades of liberal hegemony occur-long enough to build up a liberal majority in the Supreme Court, while maintaining liberal domination in the political branches.
And suppose that the current conservative majority reads Dahlia's critique and says, by golly, she's right. Let's not find a gun right. Let's instead exercise judicial modesty and allow contemporary political majorities to craft gun control policy on their own.
If Jack is right, then these judges are doing poorly-not at the case-outcome level, but at the systemic, living constitution level-by following Dahlia's advice. After all, if they forsake their opportunity to entrench current conservative opinion, then it will be much easier, than it would otherwise be, for the next generation of liberals to implement their liberal agenda. The justices will be thwarting the political agenda of the currently entrenched majority, and in this way undermining the system of living constitutionalism that Jack celebrates-the system in which parties take turns in power and stability is maintained because parties can partially entrench their policies through the judiciary. They will be failing to serve their political role of "stabilizing force," which is so necessary for maintaining constitutional legitimacy. It would be as though Republican elected officials all started voting Democratic: they've had a change of heart and they don't give a damn for the opinions of the people who elected them. Democrats would be happy in the short run but everyone would feel uneasy about such an outcome. Dahlia shouldn't want to give justices bad advice; she shouldn't want them to act like my imaginary elected officials; she should want the justices to maintain the legitimacy of the constitutional system by serving as a "stabilizing force."
Dahlia (Dahlia!, are you paying attention?), who may, like the rest of us, have partisan views, but also is public spirited, and surely wouldn't want to undermine the legitimacy of our living constitution, should give the justices good rather than bad advice. She should praise conservative justices for entrenching conservative political opinion; praise liberal justices for entrenching liberal political opinion (should we live long enough to witness this happy eventuality); and criticize mavericks who cross party lines. Dahlia, you have been doing everything backwards!
Such a conclusion is not as crazy as it might seem (though it is crazy). In fact, an academic paper proves that, if you accept certain (apparently reasonable) assumptions, the best supreme court is one in which justices engage in partisan activism (to hit you between the eyes with this point, the authors call their paper a defense of "unprincipled judicial activism"). (See here; and for some criticisms by me, here.) The ingenious point of the authors, James Rogers and Georg Vanberg, is that activist supreme court justices, in effect, merely elevate the level of supermajoritarianism in our law-making system. A high level of supermajoritarianism prevents mere majorities from passing laws that transfer resources from minorities to majorities, while allowing laws to go through that benefit everyone (an old Buchanan & Tullock argument). The authors don't acknowledge the implications of their paper for public-spirited journalists and critics, but they are exactly as I state above. If the legitimacy of our system depends on justices acting on their political biases because they were appointed just because they have those biases, then we should encourage justices to act on their biases rather than say "gotcha!" whenever they do. It would be a terrible thing if they rose above partisanship, a real mistake for them to assume the mantle of impartiality. Any justice who got religion would need to be subjected to immediate deprogramming.
Does Jack believe this? He does hedge his bets by saying that even as justices work to protect the values of temporally extended majorities, they should do so in "as legally principled way as possible," but the very fact of hedging in this way indicates that he is aware that the implications of his theory for judicial decisionmaking are radical rather than modest.
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David asks an interesting question (which I overlooked before--apologies):
But the plain fact is that the President could have sought an injunction. And the simple fact is that our elected president did not seek an injunction in this case. So the reason no judge weighed in here on whether this should have been published is that no president asked a judge to do so. So, on Eric's own reasoning, the truly irresponsible actor here is none other than President Bush, right? So why take on Mr. Lichtblau?
There is a funny notion embedded in this question that I have to choose between Bush and Lichtblau, that if I criticize Lichtblau, I must be defending Bush. However, the question is a good one. And the answer is probably not, or not just, that courts are extremely reluctant to enjoin media from publishing stories, so such an effort would have been futile and politically embarrassing. The most plausible answer is that The Times gave Bush no choice. In Lichtblau's words:
Th[e] decision was helped along by a chance conversation I had soon after our White House meeting. The administration, I was told, had considered seeking a Pentagon Papers-type injunction to block publication of the story. The tidbit was a bombshell. Few episodes in the history of the Times-or, for that matter, in all of journalism-had left as indelible a mark as the courtroom battle over the Pentagon Papers, and now we were learning that the Bush White House had dusted off a Nixon-era relic to consider coming after us again. The editors in New York had already decided they would probably print the story in the newspaper for that Friday, Dec. 16, 2005, but when word of the Pentagon Papers tip reached them, they decided they would also post it on the Internet the night before. That wasn't routinely done at that time on "exclusive" stories because we would risk losing the scoop to our competitors, but the editors felt it was worth the risk. The administration might be able to stop the presses with an injunction, but they couldn't stop the Internet.
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For your latest entry in the seemingly non-stop barrage of fawning Barack Obama major-media coverage, look no further than Newsweek's latest cover, which offers "When Barry Became Barack."
All very interesting, I suppose. But while Newsweek's on the subject, I'd be interested to learn about "Baruch Obama." That's the version that Eleanor Kerlow repeatedly used in Poisoned Ivy, her 1994 review of Harvard Law School's troubled late-1980s, early-1990s days.
Perhaps one of my Convictions colleagues -- or one of our readers -- can clear this up for me: Did Barack actually go by "Baruch" at some point in time? If so, why did he change it to "Barack"? The Newsweek piece never mentions "Baruch."
I suspect that, in fact, he never used the name "Baruch," and that Kerlow made a mistake. (In the 1990 volume of the Harvard Law Review, for example, he's listed as "Barack Obama.") Then again, I've long thought that Kerlow's entire book was a mistake.
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AP reports that in a recent speech Justice Scalia criticized press reporting on the Supreme Court:
Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.
He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured."
The media often make it appear as though the court is reaching policy judgments on its own rather than basing its decisions on the text of the law at issue in a case, Scalia said.
The decision in question is Riegel v. Medtronic. I looked at the stories in the New York Times, the Washington Post, and the L.A. Times. The N.Y. Times and Post stories say accurately that the Court held against the plaintiff because it found that a 1976 federal law preempted state common-law tort claims. The Post quotes a professor who says that the court engaged in a "narrow, textual interpretation" of a federal statute. Neither of the stories says that the Court decided on policy grounds that federal regulation is superior to state regulation, though both gave a flavor of the political background of the rulings (accurately, I think).
The L.A. Times story is fully consistent with Scalia's charge. It's dreadful. It says nothing about the law except: "the court read federal law broadly to protect companies from juries and state regulators." The reporter provides no evidence that this is true.
However, the NYT editorial is not as bad as Scalia says. Although certainly not a model of careful legal analysis, it correctly says: "The court's decision hinged on whether the Medical Device Amendments of 1976 - which gave the F.D.A. the prime responsibility for regulating medical devices - pre-empted the right of injured patients to sue for damages in state courts."
The offending language seems to be:
The court's majority opinion, written by Justice Antonin Scalia, stressed that intricate medical devices go through a rigorous assessment process in which F.D.A. experts balance their potential risks and benefits while a lay jury simply looks at the possible damage done to a patient by a device and is not concerned with its benefits to other patients.
Justice Scalia's faith in the F.D.A. far outstrips our own. The supposedly expert and rigorous reviewers at the F.D.A. are hardly infallible. They may approve marketing of a device based on questionable evidence and they are notoriously derelict about removing dangerous products once they are on the market.
This does sound as though the Times is accusing Scalia of making a policy judgment, namely, that national regulation by the FDA is superior to state common law regulation, and one can understand Scalia's irritation -- how does the Times know that Scalia has "faith" in the FDA (I suspect that, in fact, he doesn't have much faith in the FDA)? Scalia would reply that preemption is plain on the face of the text.
But how one reads the text of a statute depends on what one thinks Congress was trying to accomplish, and it is hard for an interpreter to avoid assuming that Congress was trying to implement good policy unless the statute plainly contradicts that assumption. This type of thinking is ubiquitous in judicial decisions, and, in my view, it can be found in the majority opinion in Medtronic as well, as Justice Steven notes in his separate opinion:
There is nothing in the preenactment history of the MDA suggesting that Congress thought state tort remedies had impeded the development of medical devices. Nor is there any evidence at all to suggest that Congress decided that the cost of injuries from Food and Drug Administration-approved medical devices was outweighed "by solicitude for those who would suffer without new medical devices if juries were allowed to apply the tort law of 50 States to all innovations." Ante, at 13 (opinion of the Court). That is a policy argument advanced by the Court, not by Congress.
Can the Times editorial be blamed for echoing the judgment of Scalia's colleague?
See Dan Slater's post for more.
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As Jack has recently observed,
apart from Katrina, the Iraq War and the conflict with al Qaeda, there
has hardly been a government challenge of greater enormity this decade
than the economic crisis we are now facing. Yet someone who is neither
elected nor politically accountable, Ben Bernanke, is making virtually
all of the nation's most momentous monetary decisions . . . and there
is little the President can do about it. (The President may not remove
members of the Board of the Federal Reserve except "for cause," 12
U.S.C. 242, which has long been understood to reflect congressional
intent that the President may not remove such officers merely because
of a substantive disagreement with their particular monetary
decisions.) What's more, virtually everyone in the Nation now accepts
this as the Way Things Ought to Be and, truth be told, is grateful and
relieved that the President is not "the Decider" when it comes to the
fate of our economy.
And what does the Bush Administration have
to say about this profound threat to the "unitary executive"? After all, even with respect to the much-less-powerful Consumer Product Safety Commission, the Bush OLC (per John Yoo), wrote that a similar for-cause removal condition for CPSC Commissioners "could prove to be unconstitutional."
Well, on
Monday, the Administration's Department of Treasury will
"propose a far-reaching overhaul of the nation's financial regulatory
structure that would reshape the relationship between Wall Street and
Washington and redefine the responsibilities of some of the federal
government's most powerful agencies." In particular, and most
strikingly, the powers of the Federal Reserve would be dramatically expanded:
the Fed "would gain the power to investigate any aspect of financial
institutions that threatens the stability of the entire system,
gathering information and taking action to combat risks to the
financial system as a whole." In the words of one Treasury official,
the Fed "would act as a 'free safety,' . . . with broad but somewhat
undefined powers to roam the entire playing field of Wall Street's
activities."
Needless to say, the Administration has not -- thus far -- added that tis bold new proposal "could prove to be unconstitutional." The Blueprint for Monday's statutory proposal does not even mention the
apparent constitutional anomaly that these important functions would be
transferred away from the control of the elected President and other
politically accountable officials.
* * * *
As Jack wrote:
Within
the halls of the Bush Administration, nobody seems to be thumping the
pulpit, arguing about the framers and demanding the sacred prerogatives
of the Unitary Executive. Messrs. Cheney and Addington are nowhere to
be heard from defending the President's powers to take responsibility
for the money supply and for the financial crisis we are now in.
President Bush doesn't want the buck to stop in his office. He likes
the dictatorship of the Fed just fine.
Continue reading at Balkinization . . .
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