Frymer, Black and Blue

Mark Graber

Paul Frymer's Black and Blue: African Amerians, the Labor Movement, and the Decline of the Democratic Party is an exceptional study of the relationships between the civil rights and labor movements during the second half of the twentieth century. Professor Frymer of the University of California, Santa Cruz, challenges both the common view in political science that courts cannot bring about social change, and the common view in law that courts are desirable agents for social change. The result is a far more nuanced understanding of the role of courts in American political and constitutional development. Judicial decisions matter, but they matter for reasons that confound scholars and policy activists. The book also tackles important problems in the politics of race. Race matters Professor Frymer concludes (not exactly a surprise so far), but race matters as a political phenomenon intertwined with constitutional institutions, and not simply as bad thoughts. Some institutions are structured in ways that privilege racism, others in ways that promote liberal equality. The American labor regime, alas, too often had the former characteristics.

Professor Frymer’s story begins with African-Americans seeking entry to labor unions. Entry is desirable because in the early to mid-New Deal Order, labor unions promised members both economic security and political power. Entry was also problematic because whereas previous labor struggles had pitted liberals against conservatives, efforts to integrate labor unions pit racial liberals against economic liberals. The challenge was how to achieve the goals of both so that each would remain a pillar of liberal political power. This challenge was not successfully hurdled. Black and Blue highlights how labor and civil rights had, in effect, established separate governing regimes during the 1930s and 1960s. The result was that when civil rights decisions were made consistent with the regime set up by the Civil Rights Act of 1964, those rulings frequently weakened the labor friendly regime set up by the Wagner Act of 1936.

Litigating civil rights had far more ambiguous results than inherited wisdom proclaims, whether that wisdom celebrates or bashes courts. On the one hand, Frymer documents a liberal success story. Contrary to Gerald Rosenberg and others, courts were able to produce substantial integration. For reasons often unrelated to civil rights struggles, trial lawyers and judges during the middle of the twentieth century facilitated lawsuits as a means of vindicating legal wrongs. Courts could not reshape institutions on their own, but they could order large damages (notice the important riff on the autonomy of law here). These large damages attracted lawyers to civil rights causes and threatened to bankrupt racist unions. The result was a good deal of litigation, a good deal of success, and a good deal more integration as a result of that success than existing models claimed was possible. Controversial judicial decisions do get implemented when, for various reasons, judicial losers cannot rally sufficient political support and those decisions impose substantial financial burdens on the losers. Nevertheless, these victories came with unanticipated costs. The immediate problem with going through the courts was that judicial winner-take all decrees increased antagonisms between two vital democratic constituencies, thus weakening the power of liberals to make policy in general. Faced with liberal politicians unwilling to take clear sides between African-Americans and labor, many union members turned to more conservative politicians. Second, labor unions could be integrated only by means that weakened the economic and political capacity of unions. Thus, while unions are presently integrated and some are now almost completely non-white, unions no longer exercise the power than made them politically attractive to liberals during the late 1960s. Judicial decisions weakened seniority systems and independent labor government. Significantly, Frymer points out, much civil rights litigation on these matters was financed by corporate lawyers and law firms, who had little interest in unionization. In short, courts were able to facilitate black entry into labor unions only by weakening labor unions as a vehicle for black economic and political power.

There is substantial grist in this mill for students of American constitutionalism, American politics, and American political development. Professor Frymer is particularly effective when demonstrating how institutional strategies Democrats employed to consolidated power during the New Deal created a political clash that destroyed liberal power during the Great Society. The Roosevelt coalition moved along two institutional paths. On the one hand, that coalition sought to take labor policy away from hostile courts and vest authority in more friendly legislatures and administrative agencies. On the other hand, prominent New Dealers sought to take race policy away from conservative southern Democrats in Congress and vest that policy in the more liberal justices staffing the federal judiciary, particular the northern circuits. Much has been written on how the latter policy increased tensions between the northern and southern wings of the Democratic Party during the 1940s and 1950s, eventually resulting in the destruction of the solid South in 1964. What Frymer demonstrates is that the same institutional choices had a similarly destructive outcome in the north, as racial liberals who identified with courts did battle with economic liberals who identified with elected officials. His study of the particular details of this struggle, as well as the institutional circumstances that guided the struggle will be discussed for years to come.
Posted 2:51 PM by Mark Graber [link] (10) comments

Don't Ask Don't Tell Don't Make No Sense-- When Will It Be Repealed?

JB

The New York Times reports that "28 retired generals and admirals plan to release a letter on Friday urging Congress to repeal" the law requring the military's don't ask don't tell policy. This is an unjust policy that is on its way to repeal. The only question is when.

Because all of the Democratic candidates are opposed to it, one presumes that don't ask don't tell will be eliminated in the next Administration if a Democrat is elected and the Democrats retain control of both Houses of Congress. In general the Republican candidates have supported keeping it (I don't know if Giuliani has spoken on the question recently). But that does not mean that a Republican President won't sign a bill repealing it, especially if the war in Iraq continues and the military needs all the soldiers it can get. If the military signals it wants a change, I believe that both Congress and the President will go along.

What about a court challenge? Well, although in my opinion, the law is pretty clearly unconstitutional, it was upheld repeatedly by lower federal courts in the years immediately after its passage. Of course, attitudes have changed, but these lower court decisions are still there; the Supreme Court would probably have to get involved. Although the Supreme Court might consider the constitutionality of don't ask don't tell in the future, it would be reluctant to take a case if it was not clear that the military had changed its mind on the policy. That is true even though the swing vote would be the author of Lawrence v. Texas, Anthony Kennedy. All of which means that if a Democrat is not elected President in 2008 (leading to a repeal), the military itself will likely decide when don't ask don't tell will be replaced by signaling that it has no interest in maintaining the policy any longer.

Don't ask don't tell is a good example for analyzing how constitutional law changes. Much constitutional change occurs because social attitudes change that eventually get reflected in law. When that happens, change usually comes first not in federal court decisions but in decisions by the political branches. Federal courts are usually the last actors to recognize changed circumstances and attitudes and act on them. That is why I say that courts are bad at tackling, good at piling on. Where the military is concerned, federal courts are particularly deferential. Bill Clinton, sensing changes in views on gays, tried to abolish the ban on military service early in his presidency but was forced to compromise, in part because lacked the political capital to succeed and in part because he handled the matter badly. The lower federal courts ratified this compromise, which exists to this day. Since that time, social attitudes have changed even more decidedly toward equality for gays, and the Supreme Court has confirmed this shift in the 2003 Lawrence decision. That is, Lawrence followed the trend of public opinion, rather than getting ahead of it. (It's also worth noting that federal courts have not been asked to rule on the constitutionality of same-sex marriage; advocates have pursued change in state courts and state legislatures. If federal courts ever decide in favor of same-sex marriage, it will likely be many years down the road.)

Given these facts, it is a fair bet that the end of don't ask don't tell will probably come from the political branches before the Supreme Court has a chance to pass on it. The Supreme Court will only get involved if the policy lasts for a very long time after the military has effectively signaled that it will not enforce it, and Congress fails to respond.

UPDATE: The comment below about the pending First Circuit case poses an interesting possibility: If the First Circuit were to hold the policy unconstitutional it would create a split in the circuits, which would greatly increase the chances of Supreme Court review. But if the Supreme Court did accept cert, it would probably not hear the case until after the 2008 election. This might well inject the issue into the 2008 campaign, although I am not certain that the Republican presidential candidate would want to make as big a deal out of it as the Republicans did with the gay marriage issue in 2004. It strikes me that the issue of gays in the military has a somewhat different meaning to the public than the issue of gay marriage, and arguing against gay rights in this context would not prove as advantageous as a wedge issue. In any case, the position of military officials would remain crucial, as it proved to be in the Grutter v. Bollinger case on affirmative action.
Posted 9:31 AM by JB [link] (19) comments

Are Law Schools Harming Individuals and Society?

Brian Tamanaha

In a recent post on the NPR Justice Talking blog, I played out the implications of the astronomically high and ever-increasing costs of attending law school, combined with stagnating pay for all legal positions outside of corporate law.

Here is an excerpt from the post:

What does this mean for individuals thinking about becoming a lawyer?

Anyone admitted to an elite law school is in good shape—by all means, go. Everyone else, however, should think long and hard about whether attending law school is the right decision. Specifically, one must take a close look at the financial implications of attending law school: how much money will be borrowed, the expected amount of monthly loan payments upon graduation, and expected income upon graduation. Too few prospective students sit down and crunch the numbers. An after tax monthly income of $3,000 (based on a gross income of about $45,000) sounds pretty good, until the $1,200 monthly loan payment is factored in (then there is rent, car payment, food, etc.).

The key is to be realistic. While many entering law students think (or hope) that they will be in the lucky top 10 percent that land the corporate law job, the hard truth is that 90 percent of graduates from non-elite law schools will not get these jobs, and therefore will earn far less over time. Given these long odds, a prospective student with a degree in engineering or business, or other fields with solid earning potential, or people who already have decent jobs, might be better off not going to law school.

Today, the only reason to go to law school (at least outside of the elite schools) is that one is absolutely determined to become a lawyer. For everyone else, law school is a long, expensive, laborious slog, which offers uncertain rewards.

What does this mean for social justice?

One implication of the current situation is that becoming a lawyer is no longer the sure path to upward mobility that it once represented. It can still deliver this social benefit, to be sure, but the cost barrier is becoming increasingly burdensome. People from low income backgrounds may shy away from taking on a huge debt to attend law school. Not only will this be socially detrimental, it will be a regressive development for the legal profession, as lawyers will increasingly almost exclusively come from upper middle class and wealthy backgrounds (as was the case in the past).

Another implication relates to the provision of legal services. Students who enter law school with the desire to work in public service positions often instead go on to become associates at corporate law firms owing to concern about the hefty loan they must repay. Many elite law schools offer debt forgiveness programs for students that take low paying public interest jobs, but most graduates do not enjoy this benefit. What this means is that fewer and fewer lawyers can afford to work in public service positions. If current trends continue, moreover, it is possible that low paying legal positions of all kinds will go unfilled, as these positions make no economic sense for law graduates (only the desperate will take them). This sector of the legal market consists of the needs of the poor and the lower middle class, chronically under-served as it is, and promising to worsen.

Further consequences relate to the financial pressures put on lawyers and the growing chasm in the legal profession. Although it is true that lawyers have always focused on making money (notwithstanding protestations otherwise), it is not true that lawyers in the past have exclusively focused on making money. Lawyers have also espoused and often tried to live up to a set of professional values. As the cost of becoming a lawyer rises to ever greater heights, lawyers cannot help but be increasingly focused on making money. Lawyers may be less inclined to take a stand against an unethical course of action desired by a client if they are worried about losing the client to another lawyer. More generally, the professional bonds that lawyers share will be frayed by the fact that the profession is starkly divided into such different hemispheres.

None of these observations are new. Some of these developments are already evident; some are speculative and may not pan out. But there is little question that the situation is real and has potentially serious implications for individuals and society.

Every year, law schools sponsor an extraordinary number of conferences on a variety of issues, with justice an often-mentioned theme. Yet I do not recall seeing a conference on the justice-related implications of the high tuition charged by law schools (heading toward $40,000 per year at private schools).

In addition to the points mentioned above, such a critical self-examination might also consider the consequences of the shift away from need-based scholarships, and the fact that in some law schools students at the bottom of the class, those with the most dismal earning prospects, are now subsidizing students at the top of the class, those who stand to earn the most (if you don't believe me, read this).

While on the subject, perhaps we should also examine how law schools have collaborated through the accreditation process to restrict lower-cost competition from for-profit law schools, and to raise the perks and pay of law school administrators and professors....

On second thought, never mind the conference.
Posted 10:11 AM by Brian Tamanaha [link] (26) comments

A Poor Substitute: Why Substituting the Government for the Telecoms Won’t Work

Guest Blogger

Justin Florence and Matthew Gerke

When the Senate takes up FISA next week, it must decide whether to grant retroactive immunity to telecom providers that participated in the Administration’s wiretapping program. The issue is divisive: some Democrats have pledged to filibuster any bill that includes retroactive immunity; the President has threatened to veto any bill that does not. Supporters of immunity argue that it would protect companies that relied in good faith on the government’s assurance that the program was legal. Opponents contend that granting immunity will prevent courts from ever uncovering the truth, and allow the Administration to escape any scrutiny.

Seeking a compromise that would answer both of these concerns, Senator Specter has proposed substituting the government as the defendant in place of the telecom companies in these cases. Senator Specter has the right goals, but substitution won’t accomplish them. Substitution – allowing someone to step into the shoes of a party and inherit that party’s legal position – works well when the substituted party has the same interests as the original party. That’s the case, for instance, when a party dies and his heir is substituted in, or a government official retires and her successor is substituted in. But substitution doesn’t work when the original and substituted parties have conflicting litigation interests and positions. And that’s the case between the telecoms and the Bush Administration.

The major litigation goal of the telecom companies is to avoid costly damages and legal fees; a secondary goal is to uphold their reputations as patriotic and law-abiding corporate citizens. In contrast, the litigation goal of the White House and Justice Department is to avoid the political and legal repercussions of revelations about its surveillance programs. This difference could play out in a couple of ways, were the Government substituted for the telecoms in the lawsuits.

First, a key issue in these cases is whether the telecoms acted in good-faith reliance on the Administration’s legal assurances. Under certain statutory provisions, and common law and constitutional doctrines, the telecoms could defend themselves by introducing as evidence documents provided to them by the Administration certifying the legality of their participation in the program. Although it would be in the telecoms’ clear interest to introduce these documents as a defense, it’s unlikely the White House and Justice Department would want to open their program (and their legal reasoning) to judicial scrutiny. Under a substitution plan, taxpayers – not Administration officials – would pay for any eventual damages. Because they wouldn’t be the ones paying, the Administration might prefer to lose the case and let taxpayers cover the bill rather than reveal potentially embarrassing documents.

Second, substituting the government for the telecoms would make it more likely that the cases would be dismissed on state secrets grounds. The state secrets privilege, as it is now applied, allows the government to ask a court to dismiss any lawsuit that is likely to reveal state secrets. The only purportedly secret evidence the telecoms would be likely to offer in litigation would be the legal assurances provided by the Administration. But the Administration knows all the secret details of the program, and a suit against the government could require looking into those details. As a result, a court is more likely to dismiss these cases on state secrets grounds if the government is the defendant; in fact, while cases against the telecoms have so far been allowed to proceed, a federal appeals court has dismissed a challenge against the NSA. Substitution may therefore have the opposite effect of that which is intended, by keeping cases out of court altogether rather than evaluating the legality of the Administration’s program.

If the Senate wants to transfer money from taxpayers to telecom subscribers, substitution makes sense. But if the Senate really wants a court to inquire into the surveillance program, and to hold the Administration, and not the telecoms, accountable for any illegality, there are better alternatives. The best compromise, as we have explained elsewhere, is to fix the state secrets privilege so that lawsuits against the Administration can proceed, and the telecoms can use the legal certifications given them by the Administration as a defense. If the Senate wants to make sure that the telecoms are protected financially, a state secrets fix could be combined with either indemnification, by which the government would reimburse the telecoms for liability and litigation costs, or damage caps. Unfortunately, Senator Specter’s substitution compromise is no substitute for allowing the lawsuits to proceed against the telecoms.

[Justin Florence and Matthew Gerke are Fellows at the Georgetown Center on National Security and the Law. They have provided members of the Senate Judiciary Committee with model FISA Amendments including a State Secrets Privilege Act.]
Posted 9:25 AM by Guest Blogger [link] (20) comments

The Words of A Principled Conservative on "Law and War"

Brian Tamanaha

Douglas Kmiec is a principled conservative, former head of the OLC under two Republican Administrations. Here is what he had to say about "Law and War":

There is probably no more important executive power topic than the relation between law and war. For example, Chris Matthews asked Governor Romney whether he would need the authorization of Congress to take military action against Iran’s nuclear facilities. Soundly, the Governor responded that his overriding consideration as President of the United States would be to do what is "in the best interests of the United States to protect us against a potential threat." However, because the Governor also commented that " he would consult legal counsel on the range of his available authority," he has been taking some flak.

This criticism is wholly unwarranted....

But when war is unavoidable, what about all the law talk and the consultation with lawyers? Is this faithful or inconsistent with our constitutional expectations for a president? The answer is quickly found by even the most cursory examination of the constitutional convention of 1787. War was not to be exempted from the rule of law in our constitutional design....

Then and now, genuine peace is the aim of the United States. But the premise of Mr. Matthews’ question was that the President of the United States was confronted by a nation with nuclear capacity that had anything but peace on its mind. This is a question not to be glibly answered, for it is more difficult than even the founding generation could anticipate. It involves neither a sudden attack nor a consciously deliberated decision to go to war in an extended, conventional sense. The whole point of preemption is avoidance of an extended war. That said, modern conflicts like Iraq give reason to doubt the ability to surgically preempt in many instances, and in any case, it is seldom clear where preemptive action will lead. In the constitutional convention of 1787, Roger Sherman noted that "the executive should be able to repel and not to commence war."....

For all of their faults, and there are many, lawyers do have the ability to check the abuse of power and in so doing to ensure that the civilized world does not rush headlong into chaos.

It was this thought that lay behind Governor Romney’s entirely appropriate debate response. Candidates too willing to disregard the obligations of the law, be it the law of the Constitution or of our international agreements, do us no favor, and indeed may endanger our very safety. Indeed, Governor Romney’s response is as old as the union itself. To be sure, in this over legalized world, the notion of consulting with lawyers to know the scope of authority against a terrorist force that is the very antipathy of law has an odd resonance. Indeed, in a radio interview, my former colleague in the Reagan administration Ted Olson who has now signed on with Rudy Giuliani, opined that "this whole issue of consulting with lawyers" reminded [him] that "you need to be ready to act and without having to go get a legal opinions."

That’s a curious comment coming from Mr. Olson, former head of the Office of Legal Counsel and Solicitor General of the United States, and who has devoted a good deal of his life to writing legal opinions to presidents about the scope of their war power....

What is to be regretted is the tendency of some presidential candidates just to look and sound like a tough, as if, upon assuming the presidency in a time of war, law does not matter.

It is sometimes said that Lincoln needed to go beyond the law to save it. Perhaps, in extremis that is so. Yet, Lincoln would likely have been the first to concede that Presidents operating outside the law when making the awesome decision to commit the lives of their citizens to war are to be regretted, not revered.

It's reassuring to read these words from Mr. Kmiec, especially after hearing so much rhetoric from conservatives suggesting that the President's power during war is nigh boundless. Last night on Frontline, for example, John Yoo once against asserted that President Bush has the constitutional authority to do pretty much as he pleases in defense of the nation.

When conservatives develop and articulate their positions on the legal restraints on presidential power, perhaps it would be wise to do so while imagining that a Democrat (say, Senator Clinton) occupies the office. This might help avoid embarrassing future flips in position. While it's hard to imagine Mr. Yoo making the same arguments to justify the expansive power of President Hillary Clinton, Mr. Kmiec can remain true to his already articulated position.
Posted 10:46 AM by Brian Tamanaha [link] (21) comments

All You Need to (Not) Know About the Proposed FISA Fix

Marty Lederman

Seventeen years ago, the very first Bush (41) Administration was considering whether to ask Congress for an amendment to FISA very similar to the one the current Administration is now seeking. Mary Lawton, the FISA guru within DOJ at the time (she tragically died shortly thereafter), wrote a memo to Daniel Levin in the Deputy's Office (yes, that Daniel Levin) discussing why such a proposal might not be such a good idea. That memo has recently been released under FOIA. (Hat tip to David Kris for obtaining it and bringing it to my attention.)

The most important sentence in the memo, I think, is this one, in the penultimate paragraph:

"It should also be noted that the proposed amendment to FISA to resolve the NSA problem . . . is certain to be written in such enigmatic terms that only those who have been briefed in executive session will understand them."

Truer words were never written. And that's why it is, indeed, almost impossible to have a serious, informed legislative and public debate about the current Bush Administration's proposed FISA amendments -- because the public (and most legislators) can never be let in on what the amended statute would actually do: it's secret law.

[UPDATE: That does not mean, of course, that everything about the current legislative debates is inscrutable. For instance, although Joe Klein dutifully published the talking points he was being tendered by Republican strategists -- that the House Democratic version of the legislation "would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court" and "would give terrorists the same legal protections as Americans" -- that was manifestly not the case, as Klein could have learned in a few minutes had be bothered to read the bill, or to contact folks on the outside who had bothered to do so. (That's the Republican strategy: Make sure their own bill is "written in such enigmatic terms" that few in Congress or the public can understand exactly what is authorized, and then feed writers such as Joe Klein the line that the Democratic alternative treats terrorists and U.S. persons the same, trusting that he'll parrot their line.) To make matters (much worse), Klein subsequently conceded that he had been rash in accusing the Democrats of coddling terrorists, but added that "I have neither the time nor legal background to figure out who's right" about the Democratic FISA bill. (He had time to publish the original slur, but no time to bother checking whether it was true . . . talk about your reckless disregard.) And then, as the coup de grace, Time Magazine has appended the following jaw-dropping "correction" to the electronic version of the original article, which will undoubtedly be the subject of countless J-School classes in future years: "In the original version of this story, Joe Klein wrote that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would allow a court review of individual foreign surveillance targets. Republicans believe the bill can be interpreted that way, but Democrats don't. It's not our job to figure out who's correct -- indeed, it doesn't matter." (I added the last sentence, of course -- but it's the logical implication of -- and not much more preposterous than -- what came before.) Glenn Greenwald has been all over this and has all the sordid details.)]

In any event, Mary Lawton's memo reminds me of her testimony several months earlier in 1990 before the Senate Intelligence Committee. Senator Specter was asking her about the prospect of regulating physical searches under the existing FISA regime. Lawton balked. She explained that DOJ would not want the FISA regime to be the exclusive means of conducting physical searches, and it would be difficult to build loopholes into any definition of "physical surveillance" comparable to those in the existing, complex FISA definition of "electronic surveillance." This led to the following revealing colloquy:

LAWTON: The FISA statute, as you know, is crafted in such a way that by definition a number of items fall outside its mandate.

SENATOR SPECTER: Would you enumerate those, please?

LAWTON: I can't in open session, Senator.

SPECTER: Excuse me?

LAWTON: I can't in open session.

SPECTER: But the statute is public.

LAWTON: The statute is public. But . . . in the definitions if the statute, certain things are included and those are public. What those definitions leave out --

SPECTER: Is not public? Can't [I] figure it out from what is in the definitional section?

LAWTON: Not without a considerable body of knowledge, no.

SPECTER: Well, I question that.

[Just to clarify: I'm not suggesting Lawton was wrong. This is one of the difficulties of trying to legislate in this area -- that so much of the subject matter is and should be classified (although probably not as much as NSA insists). But for that very reason, Congress ought to understand exactly what it is authorizing -- and should be very careful to protect the interests of those U.S. persons who cannot possibly know the extent to which their privacy interests are implicated.]
Posted 10:11 AM by Marty Lederman [link] (21) comments

Skepticism About Leiter's Citation Rankings

Brian Tamanaha

Like Mary Dudziak, I’m skeptical about Brian Leiter’s latest citation rankings of law professors. In response to Dudziak’s concerns about the study, Leiter claims that “The study is a ‘true measure’ of what it purports to measure, namely, impact in legal scholarship.”

It is more accurate to say that citation counts measure citations. Whether citations reflect impact is an altogether different question.

My objection to use of citations as a proxy for “impact” is not the claim that articles and books may have an influence without being cited in law review articles, although this is clearly the case. [I have read and learned from Isaiah Berlin, for example, but have never cited him].

Rather, the problem has to do with the bizarre citation practices that have developed in U.S. law reviews. Law reviews typically require that almost every assertion be backed up by a reference; articles often have in excess of 400 footnotes, nearly one for every sentence [invited and symposium pieces escape these constraints].

As a result, law professors are required to produce reams of citations, even for commonplace assertions, a task they sometimes push off on research assistants. Over time, stock or standard citations develop, which are cited again and again. An easy way to come up with a citation is to plumb (or loot) the footnotes of earlier articles on the subject. A lot of parasitic opportunism of this kind takes place because it is an efficient way to come up with the required footnote. [Concrete evidence of this practice: an article I wrote a dozen years ago was erroneously identified as co-authored in an early article that cited it, and to this day it is still occasionally cited as co-authored, which suggests that the people who cite the article are not actually reading it but are merely "borrowing" the (erroneous) cite from earlier articles.]

Owing to this practice (common?), the fact that a book or article is cited does not necessarily indicate that it was read by the law professor who cited it. Even if the professor actually reads it, moreover, the citation does not mean the article or book cited had any impact on the professor, particularly when the citation is produced after the passage was written. Again, many sources are cited solely because a citation is required by law reviews.

A more refined measure of impact or influence would count only the times when a source is actually discussed in the article in some fashion, even minimally. While there is much reason to doubt that a stock cite (or single reference in a string cite) is a reliable measure of impact, there is no question that actually engaging with the article or book constitutes impact.

Even if this problem is corrected, there are other serious problems with Leiter’s citation study as a measure of impact on legal scholarship.

Consider, for example, Leiter’s ranking of Critical Theorists. Roberto Unger is ranked 20th, with 480 citations. Setting aside what one might think of the merits of critical theory, it is absurd to suggest that the “true measure” of Unger’s impact in this field places him behind all the others cited. His Knowledge and Politics and Law in Modern Society influenced a generation of critical theorists (and others), although these works might not be cited very often today. This example alone demonstrates that the citation study is deeply flawed as a measure of impact.

Take a look at the “Law & Philosophy” ranking. A case can be made that Duncan Kennedy (1290 citations) and Roberto Unger, both relegated (or banished?) by Leiter to the Critical Theorists list, should also have been included on this list (both placing in the top ten, with Kennedy second). Leiter will no doubt assert that they do not engage in “legal philosophy” proper, which is a plausible claim, though by no means uncontroversial (Nussbaum and Waldron, on the list, also do much work that does not fit within a narrow definition of "legal philosophy"). Even conceding this, one might ask why such a narrowly defined category was utilized that excludes such important contemporary legal theorists.

Another general problem with the ranking is that many people are cited for work in other fields: Raz for moral theory; Waldron for political theory; Leiter for his rankings; and so forth. This is true for many professors, not just those in legal philosophy. Leiter does not correct for this, which undermines the accuracy of the rankings (relative position and who makes the cut).

Leiter, to his credit, admits that there are flaws in his citation ranking, although he nonetheless believes that it offers a valid way to measure scholarly impact.

However, it may well be that there is no way to truly measure scholarly impact, which is impossible to quantify. If so, even a measure that is arguably “better” than its competitors is worse than no measure at all because it falsely suggests that it is measuring something which cannot be measured.

Our culture suffers from a ferocious ranking fetish. Leiter’s citation study feeds the beast, when we should instead be starving it.
Posted 3:33 PM by Brian Tamanaha [link] (11) comments

How times change re the Second Amendment

Sandy Levinson

According to a blog published by the New York Times, Hillary Clinton has told Iowa voters, “I believe in the Second Amendment, and I don’t see any contradiction between the Second Amendment and laws that keep guns out of the hands of criminals.” The irony in this statement is that her husband did a great service to the Republican takeover in 1994 by relentlessly pushing his symbolic "assaualt weapons ban." According to Stanford political scientist Morris Fiorina, it probably cost the Democrats at least six seats in the House (including Speaker Tom Foley from Eastern Washington and Jack Brooks, the long-time Texan head of the House Judiciary Committee), not to mention dooming the candidacy of Rep. Andrews in Maine, who was running against Olympia Snowe (I believe) for the Senate. (One might be curious as to what kinds of advice she gave Bill with regard to pushing the bill so hard and forcing House Democrats to take a predictably costly vote for no political gain--and, for that matter, no real gain in public safety, either, given the basically symbolic nature of the bill). So I take Sen. Clinton's declaration of support for the Second Amendment--the next question, of course, is what precisely she "believes" the Second Amendment means in 2007--is the best evidence possible for the new-found respect it gathers, at least rhetorically, across the political spectrum. I wonder if her comment alludes to the fact that the DC gun ban that will be assessed by the Supreme Court is not directed at keeping "guns out of the hands of criminals" except inasmuch as a prohibition of private possession of handguns would, by definition, serve that purpose in addition to keeping guns out of the hands of law-abiding people as well.

I suspect this is not the last we will hear about the Second Amendment in this campaign; and, thanks to the Supreme Court, it may become one of the "values issues" shaping the election. What is interesting is that almost none of the leading candidates in either party, right now, seems particularly "authentic" holding a gun. Any such picture of Hillary or Obama holding a gun would instantly become the "Michael Dukakis in the tank" photograph of 2007. Edwards, perhaps, has actually hunted and might not look ridiculous. Romney has been exposed as an utter fraud re his devotion to hunting, and somehow I doubt that Giuliani, who might well wish to shoot his critics dead (though he might prefer to personally strangle them), has in fact spent much time actually using guns. Perhaps Huckabee has done his share of hunting in the Arkansas pines (or wherever one goes hunting in Arkansas). In any event, it should be entertaining to watch the candidates prove their bona fides with regard to their new-found respect for what used to be "the embarrassing Second Amendment."

[UPDATE: I should have thought of Fred Thompson, of course, the subject of a story in today's Times titled "Thompson Woos Gun Rights Contingent." The print version includes a splendid, and altogether plausible, picture of the candidate (p. 22 in the New England edition) holding, with seeming admiration, what looks to my completely untrained eye like the equivalent of a machine gun. I will be delighted further to update this posting if someone actually knows what kind of gun it is (and under what circumstances it would be maximally useful). The story, datelined Landon, South Carolina, leads off as follows:

Joe McCormick, a burly man over six feet tall, a World War II-era Mauser rifle at his side, said he was frightened.

“Giuliani scares me,” Mr. McCormick said of Rudolph W. Giuliani, the former mayor of New York City who is seeking the Republican presidential nomination. “What does a mayor of New York know about guns?”

I couldn't agree more that there is much about Mr. Giuliani about which to be frightened --indeed, terrified--but his knowledge, or lack of same, about guns would not be at the top of my personal list of reasons. I would expect Mr. Giuliani to be familiar, at least from his former life, with the number of New Yorkers who were killed by weapons bought in South Carolina and brought into New York, but I seriously doubt that he will choose to tell the Republican primary voters what he knows, given his new incarnation as a would-be Charleton Heston.]
Posted 4:00 PM by Sandy Levinson [link] (42) comments

Does Winning in the Supreme Court Galvanize Social Movements?

JB

In a previous post I predicted that the Supreme Court would find for individual rights advocates in the upcoming Heller case, but that this might advantage gun control advocates and the Democratic party in the short run. Responding to my analysis, James Skoufis over at Real Clear Politics argues:

if the conservative Court strikes down the DC law, a scenario I think is likely, it will take the wind right out of the sails of the Brady Campaign and similar gun control groups - to have the highest court in the land rebuke you on something you've been fighting for for decades has to be demoralizing to say the least. Likewise, the NRA and similar groups have historically always been more vocal, more powerful, more wealthy, and thus, more influential when it comes to lobbying and elections - there's no reason to think that a decision that falls in their favor wont galvanize them to fight to keep the Court out of a Democratic President's hands for the next 4-8 years.

Recent historical experience is more complicated. The decision in Roe v. Wade greatly furthered the substantive goals of pro-choice and feminist groups, but it did not galvanize the two movements politically. If anything, it tended to demobilize them by diverting efforts into the defense of Roe in the courts. By 1979, on the other hand, New Right advocates formed a powerful political coalition with an (in those days) unlikely alliance of Protestant evangelicals and Catholics; this new coalition used abortion and Roe v. Wade as the central defining issue in what became the culture wars. In purely political terms, the decision in Roe v. Wade was the best thing that ever happened to social and religious conservative movements, even if they didn't figure this out immediately after Roe, as people have often asserted. And the loss in Roe led the losers, not the winners, to make judicial appointments a central concern of their politics for a generation.

Likewise, Brown v. Board of Education placed the law on the side of the Civil Rights movement, and in the long run it was very important symbolically and practically to the success of that movement. But in the short run-- in the decade between Brown and the 1964 Civil Rights Act (whereby Congress effectively ratified Brown in Title VI)-- Brown became a potent symbol for massive resistance by white southerners. It polarized white politicians and drove even racial moderates into increasingly segregationist positions and rhetoric. Michael Klarman has argued that one perverse effect of Brown was to focus increasing attention on the NAACP, leading to numerous efforts to wipe the organization out in the South, while simultaneously helping demobilize the Civil Rights Movement until the late 1950's. Thus, the short run effects of Brown were quite different than its long run effects. (That is not a reason to think that Brown was a mistake: it is simply a consequence of how judicial protection of controversial rights claims usually works in the United States.).

Lawrence v. Texas, as I noted in my previous post, led to a hardening of anti-gay attitudes in the short run, and following the Goodridge same sex marriage decision in Massachusetts, gains in judicial recognition of gay rights led to a wave of state constitutional amendments prohibiting same sex marriage and, in some cases, even same-sex unions. Gay marriage became a salient issue for conservatives in the 2004 election, and the gay marriage issue may have mobilized some voters to come out to the polls to vote for the Republicans, although the effect is not as great as people originally assumed. In the long run, I believe that Lawrence and Goodridge will benefit the gay rights movement, but, once again, the long run is not the same thing as the short run.

Now it is certainly possible that a victory for the NRA and associated forces in Heller will not mobilize political support for gun control advocates and for liberals. That might be so because liberals and gun control advocates have not learned how to engage in the sort of successful hot button, red meat, symbolic politics, politics of resentment and politics of anger that has characterized various right-wing movements in the past. (One would not get that impression from reading conservative blogs and commentators, which regularly assure us that left wing groups are by turns angry, irrational, and even deranged.) Another possibility is that right wing social movements are simply better organized and funded, so that they can take advantage of wedge issues and whip up emotional resentment against court decisions more easily and effectively than left wing groups can. (Again one would not get this impression if one read only blogopshere denunciations of Moveon.org and George Soros.).

Conversely, it is possible that right wing groups like the NRA, unlike the women's movement, the pro-choice movement, the civil rights movement, and the gay rights movement, will not be demobilized in the short run by a major victory in the courts but in fact will be ever more galvanized. But I wouldn't bet on it. My guess is that following what I predict will be a significant victory in Heller, the NRA and other gun rights groups will overinvest in litigation to push for additional gun rights victories in the courts, and they will simultaneously experience a short term drop-off in contributions and movement energies. That is because they will likely be drawn-- as most recent American social movements have been-- to the idea of gaining significant victories in the courts at minimal cost that also put policy gains beyond the reach of ordinary majorities to overturn. (Does this sound familiar? Just reverse the political polarities.).

In any case, as I noted in my previous post, I could be wrong about how Heller comes out. And, as I also noted, War on Terror issues and other cases on the Supreme Court's docket, like the crack/powder cocaine case and the child pornography case, might swamp any effects of a victory in Heller for gun rights advocates. Things will become clear in time. But I believe it is wishful thinking to assume that victory in the courts will not usually create short term political setbacks of the type I've described above.

Lest I be misunderstood, let me emphasize that this is not a reason to refrain from seeking vindication of one's civil rights in the courts. It is merely that history teaches us that the most successful social movements have achieved lasting victory by winning the battle of public opinion in a democracy, not merely by winning the battle of elite opinion in the courts. That is because when they win over the public, the courts are usually not far behind. As I have explained in previous work, courts are like placekickers in football. They are bad at tackling, but good at piling on after the running back is already down on the ground.
Posted 2:42 PM by JB [link] (27) comments

The Constitutional Significance of the Thanksgiving Weekend (or, Constitutional Hardball and Recess Appointments)

Marty Lederman

Senate Majority Leader Harry Reid and Virginia Senator Jim Webb think they have found a solution to the problem of unconstitutional recess appointments: every three or so business days during the Thanksgiving break, they will convene "pro forma" sessions of the Senate, lasting only a minute or two. (The schedule was announced by Senator Webb on Monday.) They think this will prevent the President from appointing officers during this intra-session adjournment.

I'm not sure why they're so confident. The Recess Appointments Clause (RAC) provides that the President "shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Art. II, sec. 2, cl. 3. I have argued -- see my posts here and here, and briefs I filed on behalf of Senator Kennedy (with Larry Tribe, Tom Goldstein and Amy Howe) here and here -- that this gives the President the power to make appointments without the Senate's participation only between Sessions of the Senate (of which there are generally one per year, or two every election cycle).

Since 1993, however, the Executive branch's view has been that the term "the Recess" in the RAC refers to any suspension or remission of Senate business, no matter how short. (The history of the Executive branch's views is discussed in the briefs linked above.) That means that if the Senate breaks for ten days, or for three, or overnight, or for a lunch break, the President can unilaterally make appointments to federal office, including to the federal judiciary, and those appointees can stay in their positions until January 2009, when the Senate's next session begins.

On this view, there would be nothing to stop President Bush from appointing, say, a new Surgeon General -- someone the Senate would never confirm -- during the short three- or four-day breaks that Senators Reid and Webb have scheduled.

Senators Reid and Webb are no doubt relying on certain prior representations of the Department of Justice. In briefs to the courts, DOJ has occasionally hinted that, in its view, adjournments of three days or less might not be "the Recess" to which the RAC refers -- a sort of de minimis exception. But there's really nothing to be said for such a de minimis rule -- it makes no constitutional sense -- which is why DOJ has never really embraced it. (See note 10 of the Franklin brief, and pages 39-42 of the Stephens brief. DOJ no doubt occasionally floats the idea of a possible three-day exception just so it can try to distract courts and others from the absurd ramification of its actual legal argument, which is that the President may make recess appointments every weekend, indeed, every night.)

Moreover, President Bush and other recent Presidents have gotten in the habit of appointing officers very soon before the Senate reconvenes -- the most egregious example being Judge Pryor, who was appointed on Friday, February 20, 2004, with the Senate returning three days later, on Monday, February 23d.

What then, is to stop the President from making appointments at the outset of one of the Reid/Webb "mini-breaks," three days before the Senate's reconvening?

Only this: Precedent. No President has ever made a "recess" appointment during an [CLARIFICATION: intrasession] break of fewer than nine days. Technically, then, President Bush would be breaking new ground, taking the Executive's theory of recent years to its logical conclusion, which is that unless the Senate remains continuously in session, the President has the power to circumvent the legislative branch as to any and all federal appointments (of up to two years' duration). It would be an audacious move. But I wouldn't bet against it. After all, other than his reputation for constitutional fidelity -- purporting to respect "original intent" and to reject "living constitutuonalism" -- what has he got to lose?

[UPDATE: Thanks to a post from Brett in the comments section, it now occurs to me that something else might be going on here: Perhaps the Senate is not only splitting up its Thanksgiving break into small segments but also, and more importantly, designating each of those segments a separate "session" of the Senate, so that the First Session of the 110th Congress (of the Senate, anyway), ended on November 16th; the Second Session (or perhaps "Session 1A"?) began and ended on November 20th; the Third Session will occur on Friday morning; etc. That would not prevent the recess appointments during the interim periods, but it would mean that any such appointment would only last a few days (until the end of the next "session"). That would still leave open what happens if the President makes appointments right before the end of the last of these "mini-sessions," i.e., on December 2d. Such appointments would not expire until January 2009, unless the Senate makes a practice of convening these numerous "sessions" during every extended break from now until the end of the Bush Presidency -- which would not foreclose the President's hardball, but which would make it somewhat futile.

Is this what's going on? The Congressional Record is still recording this as the "First Session" of the 110th Congress, but who knows?: Perhaps that's wrong.

I'd be grateful for any insight into how the Senate rules and practices are at work here.]

[FURTHER UPDATE: Some commenters argue that because the RAC applies only to those vacancies "that may happen during the Recess of the Senate," it should be entirely inapposite to vacancies that came about before the recess or adjournment began, regardless of what the right meaning of "recess" might be. This argument is discussed in footnote 11 of our Stephens amicus brief, and it is the principal basis of Judge Barkett's thoughtful dissent from the court of appeals' decision in Stephens. I think it's right. Nevertheless, the Executive branch practice on that question is not at all novel. Since at least 1823, the Executive branch has taken the view that the word "happen" in the RAC must be construed to mean "exist," see 1 Op. Att'y Gen. 631, 632-33 -- although supporters of this argument "must, in candor, admit that their construction is not conformable to either the literal or the ordinary import of the words 'may happen,'" Case of Dist. Attorney of United States, 7 F. Cas. 731, 735 (E.D. Pa. 1868) (No. 3924).
Posted 10:21 PM by Marty Lederman [link] (34) comments

Re-education through labor: a quick way to bypass China's courts

Lauren Hilgers

Last week, a peasant turned activist, Liu Jie, was sentenced to 18 months of re-education through labor after distributing a petition in favor of democratic reform. Too little to send her to court and too much to go unpunished, the petition landed Liu Jie in an area of China’s criminal procedure that lies mostly outside of the courts’ jurisdiction.

Laodong jiaoyang, or re-education through labor (RTL), allows the police to arrest and detain someone who has not been formally convicted of a crime. As the strength of China’s judiciary grows, RTL and other so-called "administrative punishments" are falling under heavy attack from reformers and members of the judiciary itself. Their continuing existence, however, is a reminder of how far the system has to go, particularly when it comes to criminal law.

The system of bypassing the courts was first introduced in 1957 in the Regulations on Penalties for Public Security as a way to easily punish dissidents and to integrate the disenfranchised into the workforce—allowing police to sentence petty criminals themselves. It was maintained for a few years and then mostly abandoned during the Cultural Revolution. In 1979, however, RTL was resurrected in a push to diminish petty crime and has been going strong ever since. 310 re-education-through-labor facilities are reportedly operating in the country today, and the system is said to have processed around three million people since its creation.

Under provisional measures published in 1982 concerning re-education through labor, an offender may be sent to one of China’s re-education-through-labor facilities for one to three years, with a possible one-year extension. RTL commissions, established at provincial and municipal levels and dominated by public security officers, are given the task of sentencing in such cases. Organs within public security bureaus are also authorized to approve sentencing on behalf of the RTL committees.

Seven different circumstances warrant the punishment, including instances in which a person is considered a ‘counterrevolutionary’ and has committed a minor crime, when a person disrupts the operation of his or her work unit or refuses to work, when a person incites others to commit crimes and in situations where a person has acted unlawfully but unlawfully enough to warrant criminal punishment. In a New York Times story from 2001, one resident of the RTL facility laments stealing one belt instead of 10. If he had stolen ten, he might have ended up in court.

In theory, people do have the right to apply for judicial review of their case in accordance with the Law of Administrative Litigation. In some rare cases, RTL sentences have been successfully overturned in court. In 2006, a Christian activist in Henan Province challenged and overturned a sentence of one-year re-education through labor. In an earlier case involving a Shanxi factory worker named Ren Jianguo, the courts overturned the sentence on the grounds that it was not strongly rooted in the RTL regulations.

China’s Ministry of Public Security is the strongest advocate of the RTL system and it’s the ministry that has the most to lose by its restructuring. Administrative punishments, which are not limited to re-education through labor, increase the tools at the Ministry of Public Security’s disposal, allowing them to target specific offenders and punish them quickly with little fanfare. The ministry argues that the leeway this has given police has helped reduce crime and maintain social stability, and that the system helps reform those who are on the verge of committing serious crimes.

Re-education through labor is the most well-known and by far the most severe of the administrative measures—more severe, even, than its equivalent court-imposed punishment, reform through labor.

Other administrative measures include detention under the Security Administration Punishment Regulations (SAPR), focusing on small infractions of administrative, civil or economic law, and procedures for the detention and rehabilitation of prostitutes and drug addicts. Another measure enabling the detention and repatriation of migrants was abolished in 2003 after the death of a detainee caused public outcry.

Draft legislation proposing reform to the system has been floating around since 2005 and resurfaced this past May with a China Daily article trumpeting the system’s demise. The article admits, however, to disagreements inside the National People’s Congress and the draft law has since disappeared from media reports. Even if was to be adopted, the proposed changes were modest, changing the name of the facilities from “re-education facilities” to “correctional centers” and shortening incarceration periods. In the current climate, even these changes will be hard to make.
Posted 9:04 PM by Lauren Hilgers [link] (4) comments

A Report Card on the War on Terror

Guest Blogger

David Cole

Sometimes a statistic is worth a thousand words. In an effort to demonstrate as simply as possibly how ineffectual and costly the war on terror has been, Jules Lobel and I created a Report Card on the War on Terror, which was published in the LA Times on November 18. It reveals, in a single, digestible page – the print equivalent of a “soundbite” -- that the Bush administration’s strategy has failed. We think this is an especially important message in this election season, where too many Democrats seem to be running scared on the issue of national security. Among other things, the report card shows that since the administration declared its war on terror, the number of terrorist attacks worldwide has increased exponentially; we have discovered not a single Al Qaeda cell in the United States; we have obtained only two convictions for an attempted terrorist act (and only one of those was an Islamic terrorist); none of the more than 5,000 foreign nationals we preventively detained as “suspected terrorists” in the first two years after 9/11 turned out to be a terrorist; and we have spent about twice as much on the war in Iraq (where nearly 4,000 Americans and approximately 80,000 Iraqi civilians have died already) than we have on homeland security.
Posted 11:42 AM by Guest Blogger [link] (14) comments

The Heller Case and the 2008 Election: Has the Supreme Court Helped the Democrats?

JB

What effect will a decision next spring in the Second Amendment case, Heller v. District of Columbia, have on the upcoming 2008 elections?

First let me offer a prediction on the result: I predict that the Court will hold (1) that the 2nd amendment protects an individual right, (2) that this right applies against laws in federal territories like the District of Columbia, (3) that a relatively deferential standard of reasonableness applies, and (4) that, even under this relatively deferential statute at least one part of the D.C. gun control law is unconstitutional. That is to say, I predict a decision that tries to split the difference and is aimed roughly at the middle of public opinion, even if not the exact center.

However, if the Court strikes down any part of the D.C. handgun ban, the headlines in the newspapers will announce that the Court has protected gun owners rights and that gun control laws around the country are now constitutionally vulnerable.

Does this change in the law, or, rather perception of change in the law benefit liberals or conservatives, Democrats or Republicans?

My sense is that court decisions in highly visible and contentious cultural areas often have short term effects that benefit the losing side of the controversy. The reason is that the losers feel especially aggrieved by what the Court has done and they can argue either that the Court (1) has intervened in a controversial public dispute and taken an important issue away from democratic decisionmaking or (2) has endangered an important right that Americans enjoy. This is what happened following Lawrence v. Texas--for a brief period after the decision polls showed that more Americans thought that states had the right to ban same-sex sodomy. Conversely, when the Court appeared to be ready to overturn Roe v. Wade following the Webster decision in 1989, liberal democratic candidates benefited, because they effectively argued to swing voters that the Court was threatening important basic rights. Casey did not turn the tide for George H.W. Bush in 1992, but I believe that was, at least in part, because both strongly pro-life and strongly pro-choice advocates viewed Casey as a loss.

If this basic trend is correct-- and of course there are exceptions to the trend-- what will the partial victory for the right to bear arms in Heller mean? Because I also predict that the public will (mistakenly) see it as a clear victory for 2nd amendment advocates, it will lead to a temporary increase in political support for gun control legislation and will create a wedge issue for liberal and Democratic candidates going into the 2008 elections.

Obviously if I am wrong in my predictions, and the Court adopts the collective rights theory, conservatives will benefit. But I think there is very little chance that the Court would take this case if it a majority did not want to embrace the individual rights position. And even if members of a conservative majority understood that the appearance of a conservative result would help liberals and Democrats, I do not think it would change their decision in the case. Chief Justice Rehnquist understood the likely electoral consequences of Webster and Casey as well as anyone, and he was still eager to overrule Roe in both cases.

Therefore, at least at this point, and given my admittedly limited skills in predicting Supreme Court decisions, the big winners from the cert grant look to be the Democrats. Ironically, today the Roberts Court may have done its small part in helping to elect Hillary Clinton. Whether that is a good thing or a bad thing I leave to the reader to judge.

One last point: Heller is not the only high profile case the Court is taking this year. It is likely that many of these decisions will appear liberal to the public at large. The most obvious example is the Guantanamo bay detention case, Boumedienne; another is the child pornography case, Williams. If these decisions create enough outrage against the Court in the opposite direction, it may well swamp any effects that Heller might have.
Posted 5:35 PM by JB [link] (42) comments

Nativism and the American Right

Sandy Levinson

University of Virginia political scientist Larry Sabato has just published an interesting new book, A More Perfect Constitution, calling for constitutional reform (including a new convention). Not surprisingly, I am a fan, even if I don't agree with him on all of his 23 specific proposals. I have a review in the Austin American-Statesman for those who are interested in finding out more about it. Phyllis Schafly has also reviewed it; perhaps not surprisingly, she's far less a fan. What I find especially interesting in her review is the following: "Sabato would abolish the constitutional provision that the President and Vice President shall be "a natural born citizen." That will bring cheers from the open-borders crowd eager to build a majority of diverse people unfamiliar with our American rule of law."

At a DC event that Sabato organized to discuss constitutional reform, Catherine Krier, the moderator for the panel that I was one, asked the participants about this clause of the Constitution. I quickly endorsed eliminating it. We should not be proud of the fact that the only explanation for Arnold Schwarzenegger's absence from the presidential race is the fact that he, by being born abroad, he is an irredeemably second-class citizen so far as the Constitution is concerned. I obviously wouldn't support him, but that's entirely different from prohibiting his candidacy on nativist grounds. I was more than a bit surprised that the strongest argument made in favor of preserving the Clause was offered by Michael Steele, the conservative Republican former Lt.-Gov. of Maryland defeated in his run for the Senate last year. (He's also African-American.)

I share Ms. Shafly's view that it would be good to have people in the White House (and the Vice Presidency) who were familiar with the "rule of law," but why would anyone seriously think that limiting the pool for presidents and vice presidents would produce such people? That certainly isn't the case with the present President and Vice President, nor, frankly, did I ever get the impression that Bill Clinton was willing to walk an extra mile for "the rule of law" (whatever exactly the term means, about which Brian Tamanaha has written an excellent book). And does anyone seriously believe that Rudy Guiliani has any commitment to the rule of law? It is nothing more that bigoted nativism to believe that being a native-born citizen is the relevant marker. (Obviously, I don't believe that all naturalized citizens are paragons of the rule of law. Just take a look at many leaders of the Cuban-American community in Miami. The point is that there is simply no reason to believe that birth-status correlates with the good we're trying to identify, i.e., "commitment to the rule of law.")

As I noted in my previous posting, I'd love for one of the debate "moderators" to ask the Democratic candidates their views on this issue. I would hope that none would be tempted to go down the nativist path exemplified by Schafly and Steele. (I note, incidentally, that Sen. Hatch proposed an amendment to eliminate the offending clause sometime around 2004, but it never went anywhere, not least because no Democrat had the wit to join Hatch in pushing the idea.)
Posted 11:54 PM by Sandy Levinson [link] (7) comments

Does the Death Penalty Deter? Who Cares?

JB

There seems little doubt-- to me at least-- that the death penalty, if applied consistently and predictably enough (so that there is a real chance that it would be applied to a potential criminal defendant) will deter all sorts of crimes. It will deter murder. It will deter embezzlement. It will deter jaywalking. The fact that various economic studies (as noted in this NYT article) suggest this correlation should hardly startle anyone. People don't like to die, even if the death is painless, and informing people that there is a credible chance that they will die at the hands of the state if they perform a certain activity, all other things being equal, is likely to reduce the level of that activity.

To be sure, the death penalty is not consistently and predictably applied in this country. For one thing, opponents of the death penalty have reduced the number of times it has been used, and they have slowed down the process of executions. Moreover, it is possible to avoid the death penalty through plea bargains, which prosecutors may accept to ensure conviction and to avoid the expense of a capital trial. In addition, the prosecutorial and jury system may offer a much more credible threat of the death penalty to persons who kill whites than those who kill blacks, or at least, this is what the Baldus study seems to have shown.

However, put those objections to one side. Even if we grant that the death penalty deters, surely the appropriate question is whether the application of the penalty is worth the gains that accrue from it. If it is cruel and unjust, we would not apply it even if it saved lives. For example, I assume that however one feels about the use of torture in ticking time bomb scenarios, most people would not support torturing convicted murderers for several weeks immediately before they were executed. But if the death penalty without torture deters, surely the death penalty with torture might deter even more murders. Similarly, I assume that most people would not support either torture or the death penalty for financial crimes, even if they cost the country billions of dollars, or for knowingly selling ineffective (or watered-down) drugs to patients, even though it caused terrible amounts of suffering and led to many unnecessary deaths. The reason, I assume, is that people would regard such punishments in those circumstances as independently evil. Similarly, I take it that no amount of economic studies today would convince most Americans to reinstitute slavery, even if it were shown that it actually improves the lot of the vast majority of Americans, perhaps even the lot of those enslaved themselves. They would not reinstitute slavery even if multiple economic studies showed that a system of chattel slavery would save many lives.

The question of whether to abolish the death penalty,-- or, as seems to be the case in this country-- to confine it to so small a class of crimes with procedures so expensive and drawn out that it has very little practical deterrent effect-- is a question about the moral meaning of the death penalty as much as it is an argument about its deterrence. (This is a point that my colleague Dan Kahan has made in a series of articles over the past decade.).

Given the infrequency (and cost) of the death penalty in America, which I do not see changing anytime in the near future, arguments about deterrence are a sort of sideshow that allow people to avoid talking about these larger questions with the hope that they can solve the issue by the application of generous amounts of social scientific studies. The more important question is what the death penalty means morally to its supporters and to its opponents.

Although most of my friends are abolitionists, I am not. I don't in fact think that the death penalty should be abolished for all crimes. (Nor do I think that it is cruel and unusual punishment in all cases, which is a separate question). I would reserve the death penalty for a very small number of crimes of such moral atrocity that death at the hands of the state is a suitable moral response. Those crimes rarely occur in the United States, and some of them tend not to be prosecuted by state officials. But the primary reason I would permit the state to carry out a sentence of death is not because the death penalty deters or does not deter. Crimes that deserve the death penalty-- like genocide-- may or may not be performed by persons who could be deterred. For all we know, such persons might think they are on a mission from God. The question of whether they deserve death-- and whether it is morally just for the state to administer death-- is separate from the question of whether the threat of death would deter them.
Posted 12:17 PM by JB [link] (39) comments

Will John Edwards Connect the Dots?

Sandy Levinson

John Edwards is not my candidate (as of last week, I've come off the fence in favor of Obama). But there is much I admire in Edwards's campaign, including his willingness to talk about the class structure and the de facto class war that the Bush Administration has all too successfully carried out the past seven years. And I was struck by one of his comments in the recent debate in Las Vegas. Criticizing Hillary Clinton, Edwards said, " ..she says she will bring change to Washington, while she continues to defend a system that does not work, that is broken, that is rigged and is corrupt; corrupted against theinterest of most Americans and corrupted...and corrupted for a very small, very powerful, very well-financed group ." I think this is a bit over the top, but not much. Needless to say, though, I'd be far happier (and might even switch candidates) if Edwards were willing to take the essential next step and note that the system is not so much "corrupt"--if by that we mean an emphasis on charcter deficiencies and consciously selling out to "small, very powerful, very well-financed group[s] ," like, I'm sure some of Edwards's detractors would say, the American Trial Lawyers Association--but, rather, is truly "rigged . . . against the interest of most Amercans" because of the deficiencies of our constitutional structures themselves. (It was never intended to operate in the "interest of most Americans," who, at the time, were some combination of slaves, women, and decidedly unmonied.") If Edwards had been running for office 100 years ago, the odds are relatively high that he would have articulated a constitutional critique along with his more standard-form political one. Both Woodrow Wilson and Teddy Roosevelt, to name the most dramatic examples among the highest of "respectable" politicians, were more than willing to take on the Founders--or, more to the point, to say, altogether correctly, that the most important thing they taught us was the necessity to respond to exigencies and support change in basic structures (the monarchy in 1776, the Articles of Confederation in 1787) .

I suppose it would be just too unorthdox, given the ridiculous veneration accorded the Constitution, for Edwards to take the next step and move toward constitutional critique. I note, though, that it would have one virtue (beyond acceptance of my own views): It would move away from the quasi-conspiratorial overtones of his current critique and toward a much more fundamental discussion that requires no lambasting of Hillary Clinton (whom I would be more than happy to vote for, just as I would happily vote for Edwards even though I prefer Obama to both), but, instead, a frank recognition that the system established in 1787 works to defeat most fundamental changes unless the stars are aligned in literally once-in-a-generation accord.
Why doesn't Edwards lead a discussion of the presidential-veto system, which has almost the sole function of stifling change that is desired by a majority as represented in Congress? (Some of this change, obviously is unwise, but, overall, it would be extraordinarily difficult to show that we have so benefited from warding off unwise changes as to justify the costs of accepting all sorts of wise changes that have also been torpedoed by presidents.) Presumably, he is looking forward to being able to exercise the veto power himself should he be elected. But wouldn't it be refreshing if he would ask exactly why he or any other president SHOULD have that power, which works primarily as part of the "rigging" that justifiably turns most Americans away from politics because they correctly believe that elections rarely matter with regard to truly important issues.

And, needless to say, I would be almost as elated if CNN, which saw fit to prime a student to ask the quite likely next President of the United States if she prefers diamonds or pearls--I suppose there is no suitable underwear question that can be asked Sen. Clinton analogous to the "boxers or briefs" question directed at her husband in 1992--might actually have the wit to have one of its many pundits, currently eager only to generate a food fight among those who would lead us, ask the candidates what they really think about the Electoral College, placement of limits on the pardoning power, life tenure for federal judges, and the like. Indeed, I'd be interested to know what the Democratic candidates think of the provision in the Constitution that is the sole reason that Arnold Schwarzenegger is not now one of the leading candidates for the presidency. It is surely as important as the issue of drivers' licenses for illegal aliens. Do they believe in second-class citizenship (which is the only kind given Schwarzenegger) of not? But such questions require taking the Constitution (and the politics it generates) seriously, which Wolf Blitzer (and all other TV personalities) are incapable of doing. I continue to be angry at Jim Lehrer, usually a fine journalist, for his utter and completely disgraceful failure to ask either George W. Bush or John Kerry a single question about Abu Ghraib or torture in the first debate of the 2004 election. I'm no happier at the abysmal examples presented by Blitzer, Tim Russert, Chris Matthews, and other such figures at present.
Posted 9:09 PM by Sandy Levinson [link] (7) comments

Why Even OLC Lawyers Ought to be Ethical

David Luban

Marty doubts whether ethics rules get at what’s wrong with OLC lawyers giving legal advice tailored to letting the President do what he wants to do. And he invites me to respond. Here goes.

He writes:

Now, it's not at all clear to me exactly what "ethical obligations" are pertinent to, for example, OLC lawyers who are providing advice to the President in furtherance of his constitutional obligation to faithfully execute the law. Such lawyers have a very different sort of relationship with their client -- and their client has a very different sort of function -- than in the prototypical case of a private lawyer giving advice to a private client who wishes to avoid legal liability. Personally, I'd say that OLC's obligations are in some respects more demanding than those required by ordinary ethics rules -- but in any event, they're different; and my inclination is to say that ordinary ethics rules therefore don't really capture what is at stake here.

Marty doesn’t mean his first sentence literally. Of course it’s clear to Marty that an OLC lawyer who goes to a party and tries to impress the admiring guests by blabbing about the hush-hush FISA opinion he is working on at the office has violated an ethical obligation – the obligation of confidentiality. And it’s clear that if the lawyer writes an opinion without doing the legal research, his negligence violates the ethical obligation of competence, because, in the words of the D.C. Rules of Professional Conduct, "Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." I can’t believe that Marty thinks the basic rules of lawyer’s ethics are irrelevant just because the lawyer works for the Office of Legal Counsel. You might want to quibble about labeling all these rules "ethical obligations," because Rules of Conduct don’t always have to do with ethics in the moralist’s sense. Sometimes they are just a regulatory code. But in the examples I gave, the ethical dimension is undoubtedly there: the rule against betraying confidences and taking the pains reasonably necessary for doing your job are regulatory rules with an ethical basis.

Now it happens that one of these rules is labeled "Advisor." It reads: "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice."

"Independent" professional judgment means "independent of the client," as the first comment to the rule makes clear: "Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront....However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." And "candid" advice means telling the client what the law, in the lawyer’s best judgment, actually means. This rule, too, has an ethical basis. In the first place, it tells lawyers not to chicken out from hard conversations; it's a requirement of a certain measure of guts. In the second place, it tells the lawyer that as an advisor, he or she is more than an instrument of the client’s will. This is true for lawyers in private practice, but I see no reason at all to think that a lawyer-advisor carries different obligations when the client is White House.

This obligation of the advisor is very different from the standard conception of the lawyer’s role as courtroom advocate. In the courtroom, the lawyer’s job is to press the client’s case, counting on the opposing lawyer to highlight its weaknesses, and on the judge to check the lawyer’s one-sided presentation of the law. In the advice-giving setting, there is no opposing voice and no judge. That’s why, for more than four decades, the codes of responsibility for lawyers have distinguished sharply between the advocate’s role and the advisor’s. The advocate, in the words of the 1969 Code of Professional Responsibility, "should resolve in favor of his client doubts as to the bounds of the law." But not the advisor: the advisor is supposed to give the law to the client straight.

But what if the client doesn’t want the law straight? There’s an old legal adage attributed to Elihu Root: "The client never wants to be told he can't do what he wants to do; he wants to be told how to do it, and it is the lawyer's business to tell him how." Root was a corporate lawyer, and he was cynically expressing – a century ago – the scofflaw attitude of business people who resent lawyers who say "no." But lawyers who say yes to whatever the client wants ("Dr. Yes" was reportedly John Ashcroft’s nickname for John Yoo) violate basic ethical norms of what legal advisors are supposed to do. As I’ve written elsewhere, lawyers who write opinions saying yes to whatever their clients want are no better than indulgence sellers.

Marty thinks that OLC lawyers are in a fundamentally different relationship with their client than private lawyers of corporate clients. I think that’s partly right – but only partly. The part that’s right is that OLC opinions can bind the executive branch – if not by law, then by custom. That puts OLC opinions on a nearly-equal footing with decisions of the D.C. Circuit Court of Appeals, where most cases involving the executive branch get litigated. The big difference is that the OLC renders its opinions in secret, and without hearing adversarial arguments to satisfy the basic maxim of procedural justice – audi alteram partem, "hear the other side."

That makes the duties of independence and candor even more crucial. Lawyers whose legal advice – including secret advice – writes the law for the most dangerous branch of government have an awesome responsibility. It’s a responsibility not only to the client and the law, but to a country that is, without knowing it, being governed by twenty unknown lawyers in the Justice Department. (Quite frankly, the OLC is a scandal to democratic government, but that’s a subject for a different day.) Marty is quite right that the OLC’s mission should be to help the President fulfill the duty of faithful execution of the laws. But he’s wrong if he thinks that mission substitutes for the basics of legal ethics. That mission is over and above the duties of legal ethics.

And he’s wrong if he thinks that indulgence-selling is fundamentally different when the lawyers are writing indulgences to the President rather than private clients. Indulgence-selling is fundamentally worse when lawyers are absolving the President rather than Enron – but that’s because the President’s public trust runs deeper, not because the nature of the sin is different.

Marty is a constitutional lawyer, and an extraordinarily good one. If I were to venture a diagnosis, I think that fact makes him suspicious that ethics rules – mere ethics rules – miss the special, exalted status of constitutional lawyering at the upper reaches of government. He thinks that ethics rules don’t capture the refracted sunbeams of the Faithful Execution Clause.

Constitutional law, in the eyes of many, is the Holy of Holies in American law. It’s up there in the Empyrean. Ethics rules, by contrast, are the lowliest of the low. They are court rules rather than statutes, they are state rather than federal, and they govern a million people rather than 300 million. They are also, to be perfectly frank, very dull. Constitutional law is exciting and charismatic. It’s the province of The Supreme Court of the United States. Legal ethics is the province of grubby little grievance committees. It’s what you cram for before you take the multistate professional responsibility exam. (As one of my students remarked some years back, the MPRE is like the written part of the driver’s test.)

The fact is, though, that the ethical conduct of the million lawyers is far more important to the legal system than the journeywork of the nine justices. As I have written in Legal Ethics and Human Dignity, the lawyer-client consultation is the primary point of intersection between "The Law" and the people it governs, the point at which the law in books becomes the law in action. Most law is outside the courts, not in it; and most legal "decisions" take place in conversations between lawyers and their clients – conversations that never leave the office. This is a familiar law-and-society theme – but familiar as it is, we often forget it.

Marty errs, if I’m right, in thinking that the constitutional tremendousness of what the OLC does puts it on a plane above ordinary legal practice. But it’s a mistake, in my opinion, to get swept up in the higher ecstasies of Constitutional Law and the Thrones, Powers, and Dominations who occupy Constitutional Law Heaven – the Justices, the clerks, the theorists (sorry, Jack!), and the high priests in the OLC and the Solicitor General’s office. The law, as the Book of Deuteronomy says, "is not in the heavens, that you should say, ‘Who among us can go up to the heavens and get it for us and impart it to us, that we may observe it?’" The law is very near. It's what we find in our lawyer’s office on the fourth floor of the Kresge Building, three doors down from the orthodontist. (If you see the Home Depot on your left, you've gone too far.) It’s law’s ordinariness, and the extraordinary role that lawyers play in vending it to us, that is precisely why legal ethics is important: if the lawyers are just Holmesian Bad Men and Bad Women following Elihu Root's cynical advice, the law might as well not be there.

And that is why ethical obligations matter in the Office of Legal Counsel. It's perhaps odd that the OPR is investigating for violations of the maxim of competence. But it makes a certain amount of sense: a legal opinion that is deeply eccentric in its interpretation of the law is not much different from an opinion written without adequate research. I've suggested that the more genuine violation is of the rule requiring candid and independent advice. But it would be almost impossible to prove a violation of that rule: to show lack of candor would require showing that the lawyer knew how eccentric his opinion was, and that seems impossible.

Posted 11:25 PM by David Luban [link] (17) comments

China's new labor law

Lauren Hilgers

China’s new Labor Law is expected to come into effect on January 1st next year and both domestic and international companies are responding with mass layoffs and general panic.

The law promises to expand worker’s rights and limit employer freedom when it comes to hiring, firing and changing the workplace environment. Rumors are flying that Chinese lawyers are lining up clients in advance, targeting foreign companies. Olympus, the camera-manufacturer, is moving half its China business to Vietnam and miners recently laid off in attempt to preempt the law’s requirements are reportedly taking to the streets to protest their treatment. The new law is, I suspect, the first of many that could raise the cost of doing business in China.

On the positive side of things, the process of formulating the new law was one of the most transparent China has seen. In 2006, the government opened the draft law to public comment and received around 200,000 responses, many from international companies who, in general, opposed the new law. Complaints focused on the increased difficulty of hiring and firing and the proposed role of China’s Labor Union, which, under the draft law would have had veto power over planned changes in a company’s workplace rules. The companies' position provoked criticism from the Chinese public, some of whom claimed the foreign companies were simply trying to maintain the sweatshops they have become accustomed to running.

Foreign businesses also ran afoul of U.S. labor unions in their complaints about the draft law. U.S. labor unions have long advocated labor reform in China. In 2004, the AFL-CIO filed a 104-page petition calling for an investigation of China’s labor practices.

They have a point. Present-day China presents a paradise for the potentially abusive employer. With a labor force estimates put as high as 900 million people, long hours under poor conditions are common. In a particularly spectacular labor violation this spring, 100s of laborers were rescued from slavery at a brick factory in Shanxi. Under the current laws, employees themselves are not able to file claims against their employers. Complaints are instead presented to local government agencies or to their unions who then decide whether a claim should be filed. China’s unions, tied to the state, are likely to support economic growth over worker’s rights.

Recent scandals, which have been devoured with glee by the Chinese press, involve violations of the current law from MacDonald’s Corp. and Yum! Brands (the owner of KFC) who were found to be underpaying their employees. Factories manufacturing for Disney have been accused of working their employees 15 hours a day.

Under the new regime, employees with a more than ten-year history with a company are required to get a permanent, open-ended contract. No more than two temporary contracts can be signed and any employee who goes without a contract for one year is entitled to indefinite employment, a relationship much harder to terminate.

The law also restricts the use of probationary periods, limiting an employer to one six-month probationary stretch per employee. Non-compete clauses limiting employees from moving to competing companies have also been restricted. Unions, all part of the All China Federation of Trade Unions, now have to be consulted if any changes to workplace policy are under consideration.

If enforcement of the new law mirrors that of the current law, it would not make waves. The government has shown a large degree of dedication to the new labor policies, however, and has gone so far to include an article addressing the punishment of government officials who do not enforce the laws. It also increases the penalties for those disobeying the law.

The law has companies spooked enough to start taking action early. A handful of domestic companies (and WalMart) have reportedly starting firing and, in some cases, rehiring their employees to try and avoid the ten-year cut-off on temporary contracts.

Foreign companies are not the ones committing the majority of labor violations in the country. Many are worried, however, that multinationals will be held to a higher standard than domestic operations and the allowance for civil suits will open the floodgates to a population who loves to see the foreign giants go down.

The new law falls in line with a continuing strategy coming out of Beijing, which is increasingly emphasizing high-tech, better-paying enterprises over those that bring low-paying, low-skilled jobs into the country. While cheap labor remains at the foundation of China’s economy, prices are slowly but surely going up.
Posted 7:17 AM by Lauren Hilgers [link] (6) comments