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Sunday, August 31, 2003

[Will, 5:02 AM]
Now Featuring:

Brian Weatherson has a fascinating but unbelievably nerdy post about baseball, probability and emotions, proving to me yet again that he is my favorite Crooked-Timberite.

Saturday, August 30, 2003

[Will, 4:36 AM]
Glucking:

Well as I mentioned below, we have a new Poet Laureate, I purchased a book of Louise Gluck's poetry today in the interests of science. It's pretty unexciting stuff. There was one poem (one of the seven in the book called "Matins") that I found interesting, although the elements of power politics in the poem make me wonder who in the Bush Administration is in charge of picking the Poet Laureate. It begins:
Forgive me if I say I love you: the powerful
are always lied to since the weak are always
driven by panic. I cannot love
what I can't conceive, and you disclose
virtually nothing.

So why won't somebody pick Brad Leithauser?

[Will, 4:21 AM]
Hillary Clinton:

Is Hillary Clinton running for president? The news world doesn't think so, though Wales seems to disagree. Compare this ic Wales article:
FORMER US First Lady Hillary Clinton is planning to enter the race for the White House, despite earlier ruling herself out of the 2004 campaign, it was reported last night.

with this quote reported by Fox:
On Friday, Clinton said she definitely is not running next year.

"I am absolutely ruling it out," she said during a visit to the State Fair in Syracuse.


Friday, August 29, 2003

[Amy, 3:34 PM]
Dirty Non-Secrets:

So various bloggers of note are starting to link to this 1977 interview with Arnold Schwarzenegger, in which he discusses group sex, penis size, male body image, and drug use. One suspects that his pro-sex, pro-drugs, pro-gay stance will not go over so well with the conservative establishment--the question is, how much does this matter?

On the one hand, people tend to forget that California has its share and then some (or maybe they just stand out more here) of nutty social conservatives. But on the other hand how many of these people would have voted for Arnold anyways? And furthermore, will their failure to vote for him really hurt him? It doesn't even particularly make sense to talk of Arnold's support base as conservative. Populist would be a much better word for his combination of social liberalism, fiscal conservatism, and throw-the-crooks-out brand of anti-government rhetoric, and populism is what will let Arnold poach from the Democrats. Meanwhile, even if he can't count on the social conservatives to vote for him, he can still count on them to vote to recall Davis--what RealClearPolitics is calling the true battle in the race.

[Will, 2:25 PM]
Poetry:

I don't know much about her, but Louise Gluck has been selected to replace Billy Collins as the new poet laureate. Judging by the poem in today's Times, she's no Robert Penn Warren, but at least she's no Emily Dickinson either.

Thursday, August 28, 2003

[Amanda Butler, 1:22 PM]
U Mich ugrad tries to use race in admissions properly:

University of Michigan Unveils Admissions Policy
The University of Michigan unveiled a new undergraduate admissions policy Thursday that gives the highest priority to academic achievement, but also retains race as a factor, in an effort to comply with a U.S. Supreme Court ruling.

The new undergraduate policy was modeled on the university's law school policy, which sought a "critical mass'' of minorities, and those at some other universities. An optional question about race and ethnicity is on the new application. [Mmm, lovely, like the question about heritage on the Rice application?]

With different questions, new short-answer questions and an optional essay, the university says the application allows students to tell more about themselves, their priorities, intellectual interests and expected contributions to campus.


And will the critical mass admitted now be a different percentage of the ugrad class from the formulated mass admitted in previous years? Wait and see.

[Amanda Butler, 1:16 PM]
Predictions?:

The NYTimes reports, in its South briefing,
LOUISIANA: DEATH SENTENCE FOR RAPE A Jefferson Parish jury sentenced to death Patrick O. Kennedy, 38, for the aggravated rape of an 8-year-old relative. The United States Supreme Court outlawed the death sentence for rape of an adult in 1977, but the decision did not address child rape. Under a state law, aggravated rape may be punished with death if the victim is under 12. Richard Dieter, executive director of the Death Penalty Information Center, said the last execution for rape was in 1964. Ariel Hart (NYT)

[Will, 12:20 AM]
20 Qs:

As you have probably noticed, our lovely co-blogger Amy Lamboley (who does most of the template stuff that I can't figure out) has put up permalinks for our 20 Questions feature on the sidebar on the right. Do stay tuned for next Sunday's installlment, which will be our first interview with a very prominent left-wing blogger.

[Will, 12:16 AM]
GIGO:

Amusingly enough, what Ed Cohn reports about the Moscow subway is also true of the Washington D.C. subway-- the doors don't automatically repoen if they close on somebody. Is this a cost-efficient policy? I did some back-of-the-envelope calculations last weekend (must to the horror of the non-economist bystanders) weighing the cost of injury and possible lost-limbs against the benefit of time saved for daily commuters and decided that it probably is. Anybody with real numbers, please email them to me. I just sort of made mine up, but since the difference was so big, I don't feel that bad about it.

Remember, I'm blogging at Overlawyered this week. Click here for my post on whether babies should vote.

UPDATE: Here's a further intriguing idea from Ed. Despite the fact that he insists his idea isn't based in economic costs and benefits, I think it satisfies such an analysis anyway.

Wednesday, August 27, 2003

[Amanda Butler, 9:33 PM]
Not suprising::

Amnesty International reports a
Missouri Supreme Court decision that executing those who commit murder while under the age of 18 is unconstitutional based on a growing national consensus against the practice. The court vacated the death sentence of juvenile offender Christopher Simmons, citing "evolving standards of decency."


When the Supreme Court declared that it was unconstitutional to impose the death penalty on the mentally retarded (Atkins v. Virginia, 2002), it appeared that they also eviscerated the grounds for the juvenile death penalty. Technically, it still stood. But if one violates the Eighth Amendment prohibition on "cruel and unusual punishment," it seems the other must, too. The Court had last visited the issue of the death penalty for juveniles in 1989’s Stanford v. Kentucky, finding at that time that the execution of juveniles did not constitute cruel and unusual punishment; that same year, however, in Penry v. Lynaugh, the Court had ruled that the 8th Amendment contained no blanket prohibition against execution of the mentally retarded. If Penry can be overturned, then so with Stanford. True, not all juveniles “possess[] less developed cognitive skills than adults. . . [and] being less mature and responsible, are also less morally blameworthy,” insufficiently deterred by the threat of death, not sufficiently culpable as for their deaths to provide "just retribution." Still, there are trends among the states (depending on who plays with the numbers and how) and international consensus opposing it (always how America's Constitution should be interpreted). To abolish the juvenile death penalty would be a prophylactic rule, as is the ban on executing the mentally retarded.

I'm torn, as I was by the Court's decision in Atkins: right result, wrong method. Scalia complains about the increasing politicization of the Court, as more and more advocates bring their cause before judiciary (see also: cases dealing with abortion or homosexuality). I think the death penalty should be abolished entirely by constitutional amendment, the proper way. Not by the Court saying 'these are our rights, our fundamental liberties, egregious offenses against our decency.' Sure, the results are often things I'd include in my ideal world, but ... ah, for St. Thomas More now.

[some background, in case my family ever decides to read this: The language of Atkins v. Virginia quite plausibly can be applied to invalidate the juvenile death penalty. The mentally retarded, the Court declared,
"frequently know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability."
Because of their mental state, retribution and deterrence--two oft-cited justifications for the death penalty--hold lesser sway over the retarded; such persons also stand a higher risk of false conviction because they are less able to act skillfully in their own defense. Finally, the Court looked for trends by the states, acting individually, to exempt the mentally retarded from the death penalty; and at international consensus. From this, they determined that execution of the mentally retarded violated "evolving standards of decency."]

Tuesday, August 26, 2003

[Amanda Butler, 10:53 PM]
Silence, please:

Jonathan Rauch has a piece in the Atlantic Monthly, "Caring for Your Introvert"
How can I let the introvert in my life know that I support him and respect his choice? First, recognize that it's not a choice. It's not a lifestyle. It's an orientation.
Second, when you see an introvert lost in thought, don't say "What's the matter?" or "Are you all right?"
Third, don't say anything else, either.

Read and heed...

(link via Waddling Thunder)

[Amanda Butler, 8:16 PM]
Death by Excorcism:

Courtesy of the Chicago Tribune, detail are here and here. In Milwaukee, there was an 8 year old boy, Terrance, with autism. He was receiving some medical drugs and treatment through Social Security, and had special ed in the public schools. Still, his mother, who was raising him essentially alone, it seems, had trouble dealing with her son. She feared he'd be taken away, institutionalized. For help, she turned to her church, the Faith Temple Church of Apostolic Faith, a Presbyterian congregation. They turned to the Bible--
And he [Elijah] stretched himself upon the child three times, and cried unto the LORD, and said, O LORD my God, I pray thee, let this child's soul come into him again. I. King 17:21.
The presbyterian congregation prayed for the boy three times a week, for an hour and a half a time. They hoped thereby to exorcise the demons from the child, who spoke in fragmented utterances like "shoot me" and "soda" and "water." At Friday's prayer session, the boy was shaking. So the minister lay over him to still him, 5'7" and 150 lbs over the eight year old. His mother cried out that she thought he couldn't breathe. His father, after he saw the body later, said, "there were bruises on his arms and he was told there was skin under the boy's fingernails, which he took as signs that Terrance had struggled." The minister who lay across him has been charged with physical abuse of a child, although not homicide. No one thinks they intented to harm him; he just aphyxiated when they tried to help.


[Will, 12:05 PM]
Whither and Who?:

Two requests for information from our readers:
Firstly, does anybody know what's at the address: http://library.lb9.circ9.dcn/index.htm? It's appeared several times today in our referral logs, but when I click on it, my computer can't find the server.

Secondly, does anybody know anything about the poet Charles Hanson Towne? A few years ago, a friend sent me a poem he wrote called "Nightfall" and I've just uncovered a few books of poetry and a novel by him in our library, but I've never otherwise heard of him, and he's not included in any of my books on early 20th Century poets.

Send enlightenment on either front to baude@uchicago.edu.

[Will, 8:46 AM]
The Week in Preview:

Thanks to everybody for all of the links that helped make yesterday our record-high.

For the next week I'll be guest-blogging over at OverLawyered, so be sure to drop by. Overlawyered tends to be a little more fact-based than my posts here, so there's the off-chance I'll still post something back here. But come on over to OverLawyered.

Monday, August 25, 2003

[Will, 4:49 PM]
Bait and Switch :

So this post by Eugene Volokh might look like it's going to be some sort of point about tolerating Hindus, but it turns out to be a brilliant defense of . . . you'll see.

[Will, 2:40 PM]
Wine:

The New York Times carries a story on direct-wine-shipments, and can't resist paraphrasing the quotable Frank Easterbrook. For what it's worth, my first-year paper on direct shipment laws is available here, and Easterbrook's 2001 decision is available here.
[Full disclosure: My father was involved in arguing this case in the 7th Circuit, and what I recall to be his concsession at oral argument that lots of people violated the lesser laws in place before the statute at issue probably prompted Easterbrook's observation:
What is puzzling is that Indiana appears unwilling to enforce its purchaser-side laws even against consumers who proclaim and revel in their violations, as our plaintiffs do.
]

[Will, 11:26 AM]
Thanks:

And within a few hours, Randy Barnett's 20 questions has become quite popular. Given Professor Barnett's wonderful answers, this is no surprise. Thanks to Matthew Yglesias, Jeff Coop, and Micha Ghertner for their links, and of course Randy Barnett for his link and all the time he spent answering. Soon I intend to format all of our past 20-Questions into some sort of useful archive format, though I haven't quite figured out what yet.

[Amy, 2:53 AM]
Arnold's Ambition:

Leadership and integrity are nebulous concepts, but there is a solid reason to think that Arnold Swartzenegger and Arianna Huffington are particularly qualified to enact the sort of career-killing spending cuts and tax increases that are necessary to put California's budget in the black. Because both are naturalized rather than natural-born US citizens, they are disqualified from the presidency. Short of a constitutional amendment, governer of the most populous state in the Union is the highest elected office to which they can aspire.

[Amy, 2:29 AM]
Who Cares:

Reports from France suggest that between five and ten thousand people, mostly elderly, died in August's heat wave. What struck me most, however, in this NY Times account was the following paragraph:

Pascal Champvert, the president of an organization representing homes for the aged, said, "One has the impression that only now France is discovering its elderly." He refused to blame families, saying in an interview with Le Monde that French society was responsible. "The government presents the problem as if the solution were private," he said, but the response had to be "collective, by means of taxes and contributions."


For me, this response encapsulates everything that's wrong with the attitude encouraged by government-mandated charity. One forks over a portion of one's paycheck every month, and in return one is absolved of any sense of personal responsibility for the well-being of one's fellow citizens, neighbors, and even family members. This fuels the social isolation of marginal groups such as the elderly, which leaves them more vulnerable to disasters such as heat waves, and in turn requires even more layers of government involvement. Not only is this a social tragedy, it's grossly inefficient. The bald truth of the matter is that the government does not care about your dead grandmother. To a bureaucracy, she is a statistic, not a person. Give a bureaucracy a mandate to prevent heat deaths among the elderly, and it will enact programs aimed at her demographic, but it will still have no incentive to help her, personally. This is not to say that there aren't things that the government could do, such as building neighborhood cooling centers, or that it shouldn't perhaps do some of them, but that there is simply no way that government care can replace family care.

The French government could respond to this crisis by developing a program whereby they track all individuals over 75, and send a social worker to visit them twice a day whenever the temperature reaches a certain level. This would probably be quite expensive, and perhaps moderately effective. Or, young Parisians could take a few minutes out of their impossibly chic lives to knock on the door of of their elderly neighbor upstairs, and make sure she has a fan and plenty of cold bevarages. This would be quite cheap, and probably just as effective. Nevertheless, I suspect that the French response will end up looking much more like the former program than the latter, as French citizens become ever more detached from the charitible impulse.

[Amy, 1:41 AM]
Consistently Wrong:

Both Brad DeLong and Kieran Healy are both picking on Dan Wientraub because, in the California recall election, he isn't supporting the candidate with the most coherent economic plan.

Brad writes:

The Sacramento Bee's Dan Weintraub is a very strange person. He believes that right-wing politicians like Simon and McClintock are selling snake oil when they tell voters they will balance California's budget without cutting programs or raising taxes by eliminating waste and sticking it to the bureaucrats...admits he has absolutely no clue what Arnold Schwarzenegger would do as governor...and he believes that Cruz Bustamante has a program that at least holds together...A normal person, if offered a choice between candidates (McClintock, Simon) who are lying to you, a candidate (Schwarzenegger) who refuses to say what he would do both because he has no clue and because he thinks "people do not care about the numbers and figures," and a reasonably-smart guy who understands what the tradeoffs are and has a set of ideas about what to do with them--as I said, a normal guy would choose the clued-in candidate who is not lying to him. But, as I said, Dan Weintraub is strange. The clued-in candidate who is not telling lies is to be avoided at all costs.


Put like this, Weintraub certainly does sound strange. But the obvious point that DeLong and Healy seem to be wilfully ignoring is that not all possible solutions to a problem are good solutions to a problem. For instance, I currently have a problem with the neighbor's cats using my backyard as their litterbox. If I were to poison the cats, this would undoubtedly put an end to the smelly messes that appear in my yard with distressing regularity. Nevertheless, because I do not wish to sour the current cordial relationship with the neighbors, and because I do not believe I have the right to kill other people's pets, I'm not going to put out the arsenic-laced Meow Mix. If I were instead to hire someone who claimed to be able to keep cats out of my yard without hurting them, even if he had not told me how he planned to do so, or why he thought his solution would be effective, most people would believe I had acted logically in choosing a solution of unknown efficacy over a solution of known efficacy and known unwisdom.

Reading Weintraub's full assessment of Bustamante's plan shows that while Weintraub is not entirely convinced Bustamante's tax increases for businesses and rich people, combined with unspecified spending cuts and savings on Medi-Cal are sufficient to balance the budget, he is convinced that this is the wrong direction for the state to be moving. He writes:

But his plan’s details didn’t really call for togetherness so much as class warfare wrapped in a cloak of shared sacrifice. He wants to raise taxes on the wealthy, on business owners, on employers, while rolling back community college fees and car taxes on the owners of low-priced and modest vehicles.


One may or may not agree with Wientraub's assessment, but calling him "very strange" for favoring a candidate with unarticulated but vaguely positive ideas over one with articulated, coherent, bad ideas is gratuitous name-calling.

[Will, 12:42 AM]
20 Questions for Randy Barnett:

To continue our weekly feature-- 20 Questions for the Blogosphere, I'm honored to present Professor Randy Barnett, Austin B. Fletcher Professor of Law at Boston University, and co-blogger at the Volokh Conspiracy:

1: Why did you start blogging?

I had not been reading blogs until I noticed all the fun my good friend Larry Solum was having on his Legal Theory Blog. I resolved that I could never undertake the time commitment involved in doing one on my own, but when Eugene invited me to join his Conspiracy, which is a group blog, I thought I would give it a try. I am glad I did.

2: You have been subjected to some criticism as a blogger (though I don't agree with it myself; I'm thinking of the stuff on Matthew Yglesias's blog), that suggested that your considerable scholarly skill has not translated perfectly into blogging. What difficulties have you had in making the transition to blogging, and how is blogging different from what you've done before?

The only serious criticisms I have received came as a result of a pretty contentious blog I did on GlennReynolds.com. From the reaction, I learned the price of being political, including increased sensitivity to what I write that is more innocuous. But if you cannot stand the heat, you need to get out of the blogosphere. I know I learned from the exchange of ideas, as well as from the feedback on style. It reminded me of student evaluations, only immediate.

3: Following up on that, what role do you see blogging playing in your future academic life?

More overwhelming has been the personal interaction I now see you can have with readers. I modified that controversial column the next day in response to thoughtful criticism I found persuasive. That does not happen, or happen overnight, in normal scholarly exchanges. Being an academic writer is very lonely. You write and publish and write and publish, and only rarely get any feedback. Even when you know people are reading you, you rarely hear about it directly. You act almost entirely on faith.

Blogging has changed that. The feedback, whether positive or negative, tells me someone is listening. Entering the blogosphere has also made my scholarship known and available to a much broader audience than just other professors. I now get emails not only from lawyers, law students and law professors, but also from people in all walks of life. I feel much more connected to readers than ever before and it is really quite gratifying. I will continue to blog as time permits, and figure my postings will go in waves. That is the huge advantage of being a part of a well-read group blog like the Volokh Conspiracy.

I also really enjoy promoting the writings of others that I find provocative, entertaining, and informative. Blogging makes this possible.

4: It seems as though your approach to Constitutional Interpretation is basically an originalist one, but one that urges that "traditional" originalists have missed part of the picture. You think that the Ninth Amendment's guarantee of unenumerated rights should not be ignored but balanced into Constitutional decisionmaking as a "presumption of liberty". Is that a fair characterization of your approach?

That's pretty fair all right. The Ninth Amendment is part of the text and its original meaning, though abstract, is demonstrable: it mandates the equal protection of individual rights or liberties. The Privileges or Immunities Clause is also part of the text and it protects these same liberties from state infringement along with additional individual rights in the Bill of Rights. The "Presumption of Liberty" is simply a doctrine by which to put these mandates into practice.

For most of my career I was not an originalist because I found the myriad criticisms of original intent originalism to be persuasive. I still do. I just found another version of originalism--original meaning originalism--that made more sense to me practically and, especially, normatively. I offered my first defense of this in 1999 in an article called "An Originalism for Nonoriginalists," and will greatly expand this in my new book, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, forthcoming February 2004).

I was led to this theory of interpretation when teaching a seminar in which one of the writers we were reading cited Lysander Spooner's The Unconstitutionality of Slavery. I then assigned it to my students and saw Spooner practicing a different form of originalism than his protagonist, Wendell Phillips who was employing an original intent originalism. (I wrote about this in "Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner's Theory of Interpretation.")

5: Could you give an example or two to illustrate how your theory of jurisprudence would work in practice?

Sure. In the medical cannabis cases which I am now litigating in the Ninth Circuit (U.S. v. OCBC & Raich v. Ashcroft) the government would have to show the necessity and propriety of its interference with the state sanctioned liberty of Californians to use medical cannabis pursuant to state law. Under current doctrine, unless we can show that the liberty is a "fundamental right" that is deeply rooted in the nation's tradition and history, the government gets the benefit of an irrebuttable presumption of constitutionality.

Another example is how Justice Kennedy treated the issue of antisodomy statutes in Lawrence v. Texas. After finding that they restricted liberty (which was rightful insofar as it did not harm others), the burden fell to the state to justify its prohibition which it failed adequately to do. In its opinion, the Court shifted the burden of justification to the state without finding the liberty in question to be "fundamental" or deeply rooted in our history and tradition. This is why I entitled my analysis of the case for the Cato Supreme Court Review, "Justice Kennedy's Libertarian Revolution."


6: Very few people hold both Libertarian and Originalist theories of Constitutional Interpretation, but it looks as though you try to bridge that gap. Do those two views ever come into tension with one another?

It took me a while to resolve this tension. I realized that you must separate how a written constitution should be interpreted from the merits of what it says. A writing is an important structural feature used to subject lawmakers and enforcers to the law themselves. This it would fail to do if it could be changed by them. So the meaning must remain the same until properly changed.

But if that meaning is not good enough to provide for a legitimate legal system that produces laws that bind in conscience, then we may wish to disregard the writing altogether. (I explain this concept of legitimacy in my Columbia Law Review article, "Constititional Legitimacy.") I think other theorists want to have the Constitution and eat it too. In other words, they want to substitute for what the Constitution says something they like better, but still claim that it is The Constitution they are expounding. I think this is a deception on the public.


7: In general, it seems as though the results of your theories would lead to a major overhaul of existing government if they were widely held by the judiciary-- much of the administrative state and federal agencies might fall by the wayside. If Libertarian Originalism were to become popular, how should we make the transition from our current government to that one?

That will happen without any advice from me. Nothing changes overnight in the legal system. All legal change is gradual, nonlinear and at the margin. I am grateful for this because, if everything could be changed quickly, it would have previously been changed by those before me, and we would already have lost the whole Constitution rather than just some of its most important parts.

On the other hand, marginal change in a particular direction is more likely to occur if people believe that more radical change in that same direction is feasible and desirable. That is why it is worthwhile for academics to debate the merits of more radical positions, as I do. At minimum, such analysis cuts short objections that begin, "Well if we take your proposal seriously it will lead to X." My work stands for the proposition that X--meaning a libertarian legal system--is good place to
be. That is one of the principal reasons why the last third of "The Structure of Liberty: Justice and the Rule of Law," (Oxford 1998) describing a polycentric legal order was written. Not because I think it will happen in my lifetime, but because knowing it is practical and desirable makes movement towards liberty more easily achieved at the margin.


8: You spent several years as a Cook County Prosecutor before entering academia, first at the University of Chicago Law School and then elsewhere. How did you come to make the switch? Had teaching always been in your long-term plans?

I wanted to be a criminal lawyer starting at the age of 10 when the TV show The Defenders came on. (read more about The Defenders here) It just blew me away and I immediately resolved to be a criminal trial lawyer. In law school I decided to be a prosecutor, but if I had not gotten the job with the Cook County State's Attorney's Office, I would have been happy in the Cook County Public Defender's Office. In college, I flirted with the idea of getting a PhD in philosophy but decided to stick to my original plan. Half-way through law school the thought occurred to me that I might want to be a law professor. I am glad I stayed with my original plan because trying murders, rapes, and robberies, and working with the police, really was a thrilling and fascinating experience. Sometimes I miss it, but being a law professor is an amazingly rewarding and enjoyable way to spend one's professional life. I think of it as moving from "retail" or case-by-case justice to "wholesale" or systemic justice.

9: Do you have advice for those in law school who hope to pursue a career in the legal academy rather than practice law?

Well, I think all law professors should practice law for a bit, and this is overwhelmingly the norm. But if students think they may want to teach I would advise to them to do as well in school as the possibly can--and frankly, to attend the most prestigious school they can get into, even if this means transferring after the first year. On the other hand, if you want to practice, the status of your law school matters much much less.

A graduate degree in another field is a plus no matter where you go to school, but can also compensate somewhat for a law degree from a less prestigious school. And law teaching jobs candidates are expected to have written and, preferably, published something before going on the market.

Finally, candidates need strong recommendations. So first year law students should talk in class and get to know their professors during office hours. If they just hang back and let other students do the work, it will be very hard for their professors to go to bat for them even if they do well on the exam. Being a research assistant for a professor with high academic standing is an excellent way to spend the summer between first and second years and to build a relationship with a mentor and reference.


10: What originally drove you to study law?

An overriding concern for justice. When I saw The Defenders, I decided this was for me. Justice remains the touchstone of my professional life.

11: You co-wrote the Institute for Justice's amicus brief in the case of Lawrence v. Texas last term. Given that the Supreme Court is generally far from embracing your liberty-centered theory of jurisprudence, what is your goal when submitting an amicus brief?

The actual decision in Lawrence came very close to the IJ brief and the amicus brief of the Cato Institute (which Justice Kennedy cites twice). Our goal was to provide the Court with a theory that other parties might have overlooked. In our brief, this was a discussion of the limits of the police power of the states (which the Court generally ignored) and why the statute failed even rational basis scrutiny (the approach the Court ultimately employed). Frankly this is a new experience for me. Until my involvement in the U.S. v. OCBC and Raich v. Ashcroft medical cannabis cases, I kept myself completely in academia. But my pro bono involvement in this litigation has taught me a lot. Next month, I will be arguing the OCBC case before the Ninth Circuit which will be a real thrill.

12: Some of my readers have suggested that the online community has little to add to legal scholarship other than recounting "current events in the law." Does the blogosphere bring something useful to legal scholarship, and if so, what?

I am not sure, but immediate feedback to trial balloons is always valuable. And Larry Solum's Legal Theory Blog is indispensable to keeping up with what is going on in legal scholarship. I have learned a lot from reading other law blogs, such Howard Bashman's How Appealing. Relatedly, I also enjoy Crooked Timber which I find to be very intelligent. If I had more time to read blogs, I probably would learn even more.

I cannot claim to be a regular reader, but have enjoyed sampling my friend Jack Balkin's Balkanization, Eric Muller's Is that Legal, The Curmudgeonly Clerk, and Eve Tushnet. The enumeration in this list of certain blogs shall not be construed to deny or disparage others maintained by very interesting people.


13: Roe v. Wade is now a cornerstone of many judicial confirmation hearings. What do you think will be the fate of Roe and abortion jurisprudence in the next fifty years?

Roe was undermined by the Court immediately after it was decided, as states tried to fit within the trimester scheme and were repeatedly rebuffed by the Court in later cases. This was a shame. Planned Parenthood v. Casey ignored the trimester scheme and replaced Roe's reliance on the right of privacy with a reliance on liberty (presaging Lawrence v. Texas). So, for better or worse, Roe is not really with us any more.

As for the right to chose abortion protected by
Casey, I think its is pretty secure, but I do not consider myself a good prognosticator of the Supreme Court. The point I make in my article on Lawrence is that the "right to choose" abortion would be on far sounder ground if based on "liberty" (which is in the text) as Justice Kennedy attempted to do in Casey than on "privacy" (which is not). In addition, protecting a more general right to liberty would cut across ideological lines and find supporters on both sides of the left-right divide. It might even hold out hope that judicial nominations could become less contentious than now, when each side is pleading for the liberties of which they approve while denying protection to the liberties valued by the other side.

14: If the Supreme Court recognizes an individual right to keep and bear arms, what limitations should it impose on that right?

It should impose none. But the right to keep and bear arms is no more absolute than the rights of speech, press, or assembly. None of these rights prevent the prohibition of wrongful conduct, nor the reasonable regulation of rightful conduct--provided such regulations are subjected to meaningful judicial scrutiny. So while courts should themselves impose no limits they should uphold laws punishing the use of guns to violate the rights of others as well as genuinely necessary and proper regulations of rightful conduct.

What gun laws would pass such meaningful scrutiny depends a lot on the particular restriction and whether it is truly necessary, or a mere pretext for prohibition. This is a highly fact dependent question. One example that comes to mind is preventing the use of high powered hunting rifles in self defense in densely populated areas. With enough power to bring down a bear or a moose, their bullets are likely to go through the target, and through several walls and potentially an innocent bystander. The much-reviled handgun is a considerably safer alternative for personal self defense in confined areas. Unfortunately, most proposed gun control laws are not seriously meant to address the problem of preventing harm to innocents, but are mere pretexts for raising the hassle of gun ownership as a means of denying rather than regulating the right. As with speech and assembly, that is improper and unconstitutional.


15: I notice that your homepage and your emails have a link to information on Lysander Spooner. What's so special about Lysander Spooner?

Lysander Spooner inspired me as an undergraduate, and as I said above, influenced my thinking about constitutional interpretation. He was a brilliant, fiery radical libertarian whose overriding preoccupation was with justice and who would never stop pursuing his principles. I do not always agree with him, but I am always stimulated by him. It was my privilege to help raise from generous donors the money it took to erect a monument on his grave in Forest Hills Cemetery (click on "photos") in Boston. Working on www.LysanderSpooner.org has been a labor of love for me, and I am grateful to the many student research assistants who have done the heavy lifting over the years.

I am dedicating
Restoring the Lost Constitution to Spooner and to James Madison--an odd couple if there ever was one.

16: What role should the doctrine of stare decisis play in judicial Constitutional decision-making? For example, you have shown that the original understanding of the word "commerce" in the commerce clause was almost definitely much narrower than the Supreme Court's current interpretation, even after United States v. Lopez. In what circumstances should the Court feel empowered to revisit the commerce clause?

I think the original meaning Constitution should always trump Supreme Court opinions. Here I part company from my friend Larry Solum's defense of stare decisis
here, here, and here. But very few Supreme Court opinions are foundational in this way. Most involve complex statutory interpretation. In addition the Constitution is often pretty abstract and requires the development of rules to put it into practice. There is something to be said for sticking to those rules once announced--provided they do not violate the Constitution--even when some tinkering might be an improvement. Finally, outside the constitutional sphere, I think stare decisis has much larger role to play in common law adjudication.

17: Those who do not yet possess full rationality are always a difficult case for a Libertarian political theory. In a society that properly respects liberty, how much should the rights of juveniles be circumscribed?

I do not think libertarianism turns at all on full rationality. To the contrary, libertarianism rests on much more realistic assumptions about human rationality and goodness than does statism in all its guises. Statists must assume that political leaders are not only rational and knowledgeable enough to improve upon the spontaneous order that results from respecting properly formulated rights, but that they will be virtuous enough not to abuse the monopoly power reposed in them. I think both are highly questionable assumptions on which we should never rely (even if they are sometimes true).

As for "juveniles," like Hillary Rodham Clinton in her writings on children's rights, I distinguish between children, who require adult supervision and care until they are able to emancipate themselves, from adolescents who in previous eras were working, fighting for their country, and raising families. If they want to emancipate themselves, I would let them. (BTW, I included an excerpt from her article in my contracts casebook in the section on the defense of "infancy.")

18: Do you read fiction, and if so what sort of fiction do you read?

I do not have much time for fiction. What leisure reading I can squeeze in is more likely to be history such as Ellis's, Founding Brothers, or Hanson's Carnage and Culture. I used to really like spy novels like those by Len Deighton (author of "Spy Game," "Spy Set" and "Spy Match"). I still enjoy an intelligent thriller like To Die in Provence by Norman Bogner, but this may be because it is set in one of my favorite towns, Aix-en-Provence. And I do love films of all sorts.

I am a bit embarrassed to admit that I recently reread all the original Ian Fleming' James Bond novels I had read first as a kid. I had saved a few and since then bought copies of the rest for my son to entice him to read more. Then I began myself by rereading
You Only Live Twice while traveling in Japan. After that, I started from the beginning and read them in sequence. Although I had been warned by friends that I would be disappointed, I thought they held up very well--especially when read in order. I was able to spot that Die Another Day was based on the original story for Moonraker,, one of the very earliest Bond novels. When I reread it, it seemed the most archaic and least susceptible to being translated into a film today. Yet this was one of the best Bond films in recent years. While I am on the subject, I loved Sean Connery as Bond, and really disliked Roger Moore along with Timothy Dalton. (George Lazenby was better than both.) Pierce Brosnan is really superb as Bond, which I do not think he would have been if he had been able to accept the role when it was first offered to him and he was tied up contractually with Remington Steele. Then he was too young and foppish for the part. Now he is just about as perfect as anyone who is not a younger Sean Connery can ever be. Do you suppose I will be flamed for all this?

19: What do you do for fun?

I enjoy movies, theater, concerts, and good television (of which there is more and more these days if you are discriminating) thanks to my beloved TIVO. Broadway in Boston has really made it easy to see all the shows that come through town, and we have season tickets to the BSO and Boston Pops. I also enjoy watching the Chicago Bears on satellite (and used to enjoy the Bulls).

My son and I make an annual sports week-end pilgrimage to my home town of Chicago to watch the Bears, Bulls, and the Northwestern Wildcats. Perhaps because my professional life provides so much room for self expression, I prefer passive entertainment in which I can lose myself. I also travel a lot and enjoy seeing the world, as well as the well-timed beach vacation.

20: My research has been able to uncover very little information about Austin B. Fletcher. Do you have any idea who he was and why he endowed a chair of law at Boston University (which you now possess)?

Austin B. Fletcher, 1879-1923, was president of the Board of Trustees of Tufts College and a trustee of Boston University. After graduating from Boston University Law School in 1879, he became a well-known lawyer. He also served as professor of oratory at Boston and Brown Universities. The chair in his honor was funded by a bequest from his estate and the trustees voted that it be held by a teacher of the law of contracts. Contracts was my first area of scholarship after becoming a professor--I have a casebook called Contracts Cases and Doctrine (3d ed. 2003 published by Aspen as well as a reader, Perspectives on Contract Law (2d ed 2001)--and I still love teaching the subject. As a contracts professor, I was honored to receive the title--as I was by being chosen to be interviewed for your blog. This is a wonderful idea and I look forward to reading your interviews with other bloggers.

Sunday, August 24, 2003

[Will, 10:14 PM]
Future Reference:

Do any Anglophilic readers know of a good website that provides lists of dining, theater, etc. in London and/or Cambridge, England? I'm thinking something along the lines of The Chicago Reader or Metromix. Many thanks in advance.

[Will, 10:12 PM]
Meta-Times:

Incidentally, when did the Sunday New York Times raise its price to $5.00? Given how much I've enjoyed the NYT Magazine this summer, I suppose it's a small price to pay, but it actually took some work to buy the thing today from the clerk at Borders, since she simply couldn't believe that a newspaper could cost $5.00, and was convinced some sort of error had been made.

[Will, 10:10 PM]
Textualists, take that:

Some of the most interesting things linger in book reviews. Richard Posner has a review of "Lincoln's Constitution" in today's New York Times, but a better part of the review is spent not reviewing the book but wondering why Farber seems to have given up on his pragmatist roots:
''Pragmatism'' for these purposes may be defined as an overriding concern for the practical consequences, long-term as well as short-term, of constitutional principles -- as distinct from a more lawyerly insistence that such principles be ''logically'' derivable from orthodox legal materials, like the constitutional text, its understanding by the text's authors or ratifiers and previous judicial decisions from which rules applicable to new cases can be deduced. The pragmatic approach is forward-looking, asking what the decision in a case will do for us, the living. The orthodox lawyer's approach is backward-looking, asking what outcome would have the longer or better legal pedigree -- that is, would correspond more closely to some authoritative enactment or pronouncement in the past.

The greater the practical consequences of a legal principle or decision, the more attractive the pragmatic approach is. That makes it a natural approach to take to constitutional law. Not only does the Constitution deal with matters of great practical significance, but it is very hard to amend, which magnifies the consequences of judicial decisions construing it. The most critical episode in the history of the United States was the Civil War. Never was the need for adjusting the law to pragmatic realities greater.

[Will, 10:03 PM]
Heroinism:

Twilight of the Idols notes how Rochester accidentally gave tenure to a teacher who was currently under suspension for having her husband sneak her heroin in her lunch. Well, yes, that's pretty silly. But I'm actually kind of curious--

Was the teacher doing anything else wrong other than just consuming heroin on the job? After this summer's research I'm not convinced that merely consuming heroin on a daily basis automatically renders one unfit to work. I mean, sure, if she was unable to teach or stealing their lunch money, or selling the stuff to children, that would be terrible . . . but I'd like to know more about what she actually did wrong.

[Will, 9:50 PM]
Rice Fields:

Another Rice Grad takes issue with the latest US News rankings, which put the U of C out of the top 10, and Washington University at St. Louis in it. Maureen Craig concurs, and has a poem to that effect.

[Will, 9:26 PM]
Comments-- ad nauseum:

All The Sins of Mankind also takes issue with my arguments against comments. And the Curmudgeonly Clerk adds some interesting thoughts of his own-- which I agree with pretty much in their entirety.

[Will, 9:17 PM]
Harvard:

So this New York Times article on Lawrence Summers almost made me want to go to Harvard. But what would the blogosphere be without blogs to contradict the New York Times. Matthew Yglesias responds.

If it's indeed true that Harvard mandates that students take core classes without mandating that any particular professor teach them, then I agree that's really dumb. (I guess that's one of the things the U of C figured out about its core a long time ago). And in my usual contrarian quotation-ridden spirit, here are a fewanti-Chicago remarks by Chicago God Andrew Abbott.
As an example of this change, let me unmince a few words about one of the local sacred cows, a cow I have tended carefully over the last decade. We don't have a faculty taught core. It's more so than elsewhere, and maybe it's better designed than elsewhere, but it's not truly faculty taught. Our humanities core was cut--I was there, my friends--because the faculty involved no longer wished to teach it. They don't believe in teaching students about values. According to what many of them write, they're not really clear whether they have any values themselves. They're not sure what they want to teach (although they'd certainly like to teach it in Paris rather than Chicago). The social sciences core is sometimes thought to be a little healthier intellectually--that's the shibboleth of me and my fellow social scientists--but still a good half the social science faculty avoid teaching in it. The reality of the curricular wars here is that many faculty would like to settle into the fatuous routine of lecture courses, disguised as very-much-needed surveys, in which they can do less work. Most faculty here secretly think it a waste of time for eminent academics with planet-wide reputations like theirs to be at the same time teaching somewhat randomly chosen elite 18-year-olds how to write a paragraph of prose. Surely somebody else can do that.

[Will, 5:24 PM]
Cholera:

Though PG at Half the Sins of Mankind doesn't actually have cholera, I proffer this poem (recently unearthed at my beloved Powell's) nonetheless:
Cholera, by Rita Dove

At the outset, hysteria.
Destruction, the conjurers intoned.
Some dragged themselve off a night
to die in the swamp, to lie down
with the voices of mud and silk.
I know moonrise, I know starrise

Against orders
the well and almost-well were assembled
and marched into the wood. When
a dry open place was found, halted.
The very weak got a piece of board
and fires were built, though the evening was warm.
Said the doctor, you'll live.
I walk in de moonlight, I walk in de starlight

Who could say but that it wasn't anger
had to come out somehow? Pocketed filth.
Teh pouring-away of pints of pale fluid.
I'll walk in de graveyard, I'll walk through de graveyard

Movement, dark and silken.
The dry-skinned conjurers circling the fire.
Here is pain, they whispered, and it is all ours.
Who would want to resist them?
By camplight their faces had taken on
the frail finality of ash.
I'll lie in de grave and stretch out my arms

Well,
that was too much for the doctor.
Strip'em! he ordered. And they
were slicked down with bacon fat and
superstition strapped from them
to the beat of the tam-tam. Those strong enough
rose up too, and wailed as they leapt.
It was a dance of unusual ferocity.

Endnote: PG also asks how much overlap there is between the 7th Circuit and the U of C. To my knowledge, three judges-- Richard Posner, Frank Easterbrook, and Diane Wood

[Will, 11:53 AM]
Miss Manners:

If you've been neglecting the Miss Manners link at the sidebar, you've been missing out:
Dear Miss Manners:

When did it become against the "law" to wear pearls in the daytime? Is it okay to wear pearls to a big fancy luncheon?

Wearing pearls day or night was illegal under periodic sumptuary laws in Venice and Florence between the 16th and 18th centuries, but Miss Manners understands that they have since been repealed. Pearls are now properly worn at any hour. Just don't let her catch you running around decked in diamonds before dusk.

Friday, August 22, 2003

[Will, 5:16 PM]
Recycled Comments:

Via Balasubramani's Mania: Jivha questions why the big-name bloggers don't have comments-- those little javascript links at the end of the post that turn a blog into a disorganized message board. We're hardly a big name, but I thought that I would reprise the reasons that I'm currently tentatively against them. So here is my post on the matter from Last July 10th (the permalink is broken):
Comments?:

With our new template dawning soon, there has been some talk about whether to add comments to our blog. (For an example of what that would entail consider Matthew Yglesias's blog.) Now I'm currently against them, but several of our bloggers are in favor of them. This isn't a total democracy but nor is it a dictatorship. So I'm curious to see if any readers have strong and/or reasoned opinions on whether or not they're a good idea.

My tentative thoughts are that they are bad for several reasons:

1: They clutter up the blog with a lot of different voices. This can be particularly the case on a fairly extensive group-blog like this one.

2: They discourage blog-related links and emails, since people who have comments or counter-arguments can simply stick them in a comment rather than blogging back or writing an email. For those who prefer emails and links, this is a bad thing.

3: They can be abused. Because comments are sometimes uneditable and often unverifiable, people can post as each other and post all sorts of inane and stupid things. Of course, this is the internet and people can do that anyway, but I find it less vexing when it's not happening under my (shared) banner.

4: For those (like myself) who feel compelled to counter reasonable counter-arguments, comments can create a whole lot of work. For some reason not entirely clear to me, people are much more willing to publish repetitive or incomprehensible remarks in "comments" than in emails or blogs. This forces conscientious bloggers to try to decipher them.

5: They can look lonely. A post with no comments at all looks so . . . silly.

6: On a self-referential group-blog like this one comments can get particularly dizzying for the bloggers; if somebody has commented a response to a blog post, when does a counter-response merit a counter-comment and when does it merit a post of its own?

7: They make the blog much harder to fully read, especially on a slow computer. No longer can you simply scroll down post after post looking for something interesting, or reading everything. Instead you have to click at the base of each post to see if anybody has tucked a hidden gem. If bloggers are commenting on one another's posts (see 6) this can get worse.

A "Comments" function turns a blog into a message board. This isn't necessarily a bad thing, and it's particularly warranted, I think in certain circumstances, such as on vast impersonal publications (like the New York Times or Slate), on popular single-person blogs (like Yglesias), and on blogs that occupy a particular . . . niche (like the Hoosier Review or Crooked Timber) they make quite a bit of sense. And it's also true that because they make it easier to comment on a post, they may increase the total amount of dialogue, even if they shift it from links and emails into javascript. Finally, there is the all important empirical argument that comments increase traffic.

I have no idea if this is the case. Certainly it seems that one of the draw of Matthew Yglesias's blog is the pitched debate that often rages in his comments section. On the other hand, Matthew Yglesias's blog is much different from ours in a number of ways, and I confess I often can't make it through the comments on his posts, even at times like now when the posts are few and far between. Maybe I miss a lot of great stuff. I really don't know. But the standards people employ for posting on message-boards seem fairly low.

My personal feeling is that comments don't add anything to the blog that can't be achieved with technorati. But if you have feelings either way, please let me know, and let me know any reasons you might have.

I can't speak for most people, of course, but I can say that I really really like reader feedback-- any blog-post linking to this blog or email (blog-related or not) is highly welcome. I'm just not convinced that "Comments" are a good medium.

[Will, 2:15 PM]
Lounging About:

Julian Sanchez has a very nice defense of homeowner's associations up, as well as an interesting defense of the do-not-call list in response to the piece by Radley Balko I mention a few posts down.

[Will, 1:54 PM]
Religion:

I'd like to drop a link to this Dahlia Lithwick piece on the Ten Commandments flap. If, like me, you're bored silly by the whole thing, read this, agree that Chief Justice Moore is terrible and has no respect for the rule of law, and then move on.l

But the reaction of people like Moore and his supporters does seem to me to prove the point of the anti-Commandments folks rather well, just as the hue and cry in response to the 9th Circuit's decision to strike down the phrase "Under God" in the Pledge of Allegiance. It's possible that the outcry in response to these decisions would be just as great if we were discussing the Magna Carta and the phrase "Liberty and Justice for all," but I'm not convinced. Certainly there are plenty of principled rule-of-law folks who think these decisions are wrong, but with friends like Moore, they don't need enemies.

[Will, 1:38 PM]
Don't Call Me:

As Daniel Drezner has already provided links to the Pejman Yousefzadeh v. Radley Balko Libertarian-Telemarketing fight, I'll just link to Drezner's post.

Readers of this blog will know that I'm on Balko's side here, though a little unconvinced by his argument that the Do-No-Call list is unconstitutional, I find his television analogy particularly persuasive:
It's no different than buying a television. You understand that there's a spectrum out there that's publicly owned (we can disagree on this, but that's another argument). You buy a TV, you plug it in, and you understand that even though it's your television, you will from time to time be subject to solicitations from advertisers.

[Will, 1:19 PM]
Brotherhood:

Continuing the Volokh trend, Sasha Volokh has just accepted a clerkship with Judge Alex Kozinski, who once accepted his big brother for the same job. Of course, since Sasha Volokh seems every bit as brilliant as the professor, I'm sure there's nothing at work here but similarities in taste.

Thursday, August 21, 2003

[Will, 3:17 PM]
Solutions:

Via Kathleen I also note this long-ago Slate article proposing the E-cash/David Friedman solution for Spam-- precisely what I think ought to be done. But given how small of a political constituency there is for things like this, I don't think it will happen.

[Will, 2:54 PM]
Slate:

I suddenly realized that it's been a long, long time since I read Slate, so I decided to go see what I'd been missing. Answer: some interesting stuff. A movie review of Thirteen, Dear Prudence discussing ponytails (bad) and her attraction to Willie Nelson (good), and the case against August (hurrah!).

Slate also contains this column on multiple universes, which discusses the controversy fairly well, but didn't satisfy me. It flirts with, but then discards, what seems to me to be the best argument about multiple universes (neither for nor against)-- they aren't empirically verifiable, and therefore they're just empty metaphysics.
But when physicists and philosophers talk about different space-time domains being "two universes," what they generally mean is that those regions are 1) very, very large; 2) "causally isolated" from each other (meaning that an event in one cannot have an effect in another); and hence 3) mutually unknowable by direct observation (since observing something means causally interacting with it).

And later:
1) It's not science. Both Paul Davies and Martin Gardner claim that the proposition "the multiverse exists" has no empirical content and hence amounts to empty metaphysics. But the hypotheses that imply it do lead to testable predictions, some of which jibe with the evidence collected so far. In the next decade, as Max Tegmark points out, improved measurements of the microwave background radiation and of the large-scale distribution of matter may fortify or knock down two pillars of the multiverse: the infinitude of space and the theory of chaotic inflation.

This is slippery language. If the hypotheses of chaotic inflation and space infinity directly and necessarily imply multiple universes, then this works, but they don't (unless you turn multiversity into a tautology). Since we're postulating planes of existence whose very laws of interaction could somehow be different from ours, (since these laws are "nothing but" very very very very solid empirical generalizations), the step from chaotic inflation to "multiple universes" is invalid gibberish. Holt's thesis seems to be "our theories imply that these things probably exist, but there's no way we'll ever know, because they're unobservable by hypothesis." But since science only works with some empirical kicks along the way, and multiple universes are by definition immune to scientific observation from earth or anything anybody could ever contact from earth . . . well, you see where this starts to break down.

A closing quote:
Suppose I say "There's a 'Drogulus' over there," and you say, "What?" and I say "Drogulus" and you say "What's a drogulus?" Well, I say, "I can't describe what a drogulus is, because it's not the sort of thing you can see or touch, it has no physical effects of any kind, but it's a disembodied being." And you say, "Well how am I to tell if it's there or not?" and I say "There's no way of telling. Everything's just the same is it's there or it's not there. But the fact is it's there. There's a drogulus there standing just behind you, spiritually behind you." Does that make sense?

A.J. Ayer, The Meaning of Life

Note: You could also take the Lewis/Yglesias line, that multiverses aren't empirical constructs at all but are instead linguistic/philosophical constructs. This isn't necessarily "empty metaphysics" but it's important to keep track of what's actually going on with an argument like this, since the "multiverse" then isn't a question of physical fact at all.

[Will, 2:17 PM]
Summer Homes:

UofC gadfly Nick Tarasen has acquired a second home at The Chicago Report and has a nice inaugural post about IL's law to "get tough on dogs" and better alternatives.

The post has also gotten a mention from the Chicago Tribune's new blog, though the Trib's blog (runby Eric Zorn) doesn't seem to have permalinks, or if it does, I can't find them. Either way, this is a major failing. Anyway, Zorn also notes that "The Things They Carried" will be the next One Book, One Chicago (previously we have had To Kill a Mockingbird, My Antonia, and Raisin in the Sun). Zorn hadn't ever heard of TTTC, but I have; we had to read it in English class my senior year of high school. It made a lot of hay about some things being true but other things being truthful, and other than that was very uninteresting. But then, it might mean a lot more to people to whom the draft-- and not just war-- was a more visceral reality.

[Will, 11:17 AM]
Judicial Review:

Randy Barnett has a paper up arguing that Judicial Review was clearly within the original intent of the framers (and not just a product of Marbury v. Madison).

[Will, 9:51 AM]
What's in a :

Timothy Sandefur is rattling off good Judge names, but somehow misses two of the most courageously-named Judges to desegregate the South-- Judges Wisdom and Godbold

[Will, 9:19 AM]
No Pity:

Begging to Differ notes this poor fellow, who got 1600 on his SAT and an acceptance to UNC Chapel Hill, then had his acceptance revoked because of his senior year grades. Really poor grades. His GPA fell from 3.8 to 3.5 during his senior year. By my rough calculus that means his senior GPA was probably about 2.6.

Unlike Steve, I don't really feel any sympathy for the kid at all. Indeed, I think universities ought to do this a little more often. With early admission being what it is, many people admitted to elite universities are admitted on the basis of their first three years only. I think that's harmful to the kids who only get turned on to things relatively late in high school, like me. I don't think this policy should be overdone-- after a certain point kids have to commit to a school so the schools should be willing to commit to them-- but within limits, if some hard-working senior gets Sam Kinison's spot at Chapel Hill, then that's just a little bit more justice in the world.

[Note: One of the articles linked to by Begging to Differ quotes my former employer. In case that matters.]

[Will, 9:03 AM]
Formalism 101:

PG of All The Sins of Mankind is taking formalism on head-on:
Is what is constitutional declared to be so because it is constitutional, or is it constitutional because it is declared to be so?

That is, if we recognize something to be good, isn't that more important than its being constitutional? What does constitutionality mean, if not our concept of the good within the bounds of the Constitution's language?

Certainly we cannot think that slavery is good and try to re-institute it, because it is specifically prohibited by the 13th Amendment; or that denying the vote to women is good, and try to do it again, because of the 19th Amendment's explicitly enfranchising citizens without regard to sex...

But one can genuinely think that flag-burning is not an activity protected by the First Amendment and therefore democratic majorities ought to be able to prohibit it...

Of course, the ultimate in democratic majorities' decisionmaking is passing an Amendment. If enough of a majority thinks that flag-burning is Bad and should be illegal, they can pass a constitutional amendment making an exception to the First Amendment for flag-burners...

But that's all the Constitution is, really -- an expression of the super-majorities, who decide that their feelings on a particular matter are so important that they must be enshrined in the Constitution...

It's hard to say why the preferences of an ancient super-majority ought to be able to supersede the desires of a more marginal contemporary majority.

For example, if Congress of 2003 has enough votes to pass a flag-burning ban, why should they be overruled by the super-majority of 1791 that passed the First Amendment, without even saying whether they included flag-burning in the protected freedom of speech or not?

Note that this is essentially an attack on the idea of a written constitution. Why, PG asks, should long-dead supermajorities be able to over-rule modern democratic majorities? Are we really interpreting the Constitution or is that just a code-word for "finding things just/good/etc." She's in good company on this sentiment, or at least plentiful company. The British system, for example, involves an unwritten Constitution administered mostly by parliament, which is probably in line with PG's thinking here. Which brings to mind the first tough question that the anti-formalist PG's of the world should have to answer. If the Constitution is merely a code-word for "our concept of good" then why Judicial Review? What do nine unelected lawyers (eight of them white, seven of them men, all of them rich) know about "the concept of good" that I and my unelected representatives don't?

The formalist justification for judicial review is that a judge's job is to interpret law texts, and when these law texts conflict with one another, the judge must figure out which one is overruled by the other. Thus, if the Constitution is a normal text (albeit a vague one) it makes sense to have the judiciary trying to figure out precisely what it says. But I'm not at all sure what the justification would be for having five guys in robes strike down laws simply because they were "bad". That's not in their charter.

But I can't do justice to the arguments for (or against) formalism. On the former prong, I can assign the following reading list:
Lawrence Solum's Neoformalist Manifesto

The sequel, Lawrence Solum's
Fear and Loathing in New Haven

Antonin Scalia's, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)

Frank Easterbrook's Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119 (1998).

UPDATE: Professor Lawrence Solum steps in with a few observations.

[Amy, 1:46 AM]
The motion for a preliminary injunction to delay the California recall vote until March has been denied--decision here. Rick Hansen's analysis of the salient legal points is here.

And in other recall news, both Arnold Swarzenegger and Peter Ueberroth have announced their intention to solve California's budget problems by cutting spending, while the Democrat Cruz Bustamante has proposed raising taxes (See this NY Times article for a summary of their proposals). As I blogged back in June, this choice--tax increases or spending cuts--is really the major issue at stake in the recall election, and given that the two frontrunners are both social moderates, I suspect this will quickly become the overarching point of contention for the two campaigns.

Wednesday, August 20, 2003

[Will, 3:32 PM]
Ivory and Child Pornography:

Ampersand defends Virtual Child Porn laws by using an analogy to elephant ivory:
The analogy I'd use is elephant ivory. Having a market for new elephant ivory is obviously a bad thing; it encourages poachers to kill elephants, leading to near-extinction.

What's not so obvious is that having a legal market for old elephant ivory also encourages poachers to kill elephants. Why? Because in practice, it's practically impossible to tell the difference between new and old elephant ivory. Therefore, if there's a profitable market in old elephant ivory, that will motivate poachers to kill elephants and sell the new ivory, falsely claiming that it's old ivory.

If we want to take as much of the profit out of poaching as possible, it's not enough to just outlaw selling new elephant ivory. We also have to outlaw selling anything that's in practice nearly impossible to distinguish from new elephant ivory.

But I think this analysis misses an important point of economics. Banning fake elephant ivory will save elephants only if it is cheaper to hunt elephants than it is to gather fake ivory (and I don't think it is). If fake ivory is cheaper to produce than elephant-hunting, then banning fake ivory makes things worse, not better. Think of it this way:
... it seems implausible to suppose that legalizing digitized images of children engaging in sex would lead to a deluge of actual child pornography. Economically motivated pornographers would have as little reason to abuse actual children by photographing them in order to pawn the pictures off as fabrications as poachers would have to illegally slaughter elephants in order to market their tusks as imitation ivory. It is hard to imagine that an entrepreneur who chose an inefficiently expensive and illegal way to produce a product in order to pawn it off as a legal, fake and supposedly “inferior” version would survive long.

If the only way poachers can legally sell elephant ivory is by pretending that it is fake, then they may as well just sell the fake stuff in the first place. Similarly for child pornography. Allowing people access to cheaper and less harmful substitutes encourages people to switch away from the harmful behavior and towards the more tolerable behavior.

I think it's actually terrible dangerous to ban low-cost, low-harm substitutes for bad behavior. Yes, people could go out and hunt elephants and then sell the tusks as fake ivory, but why would they want to? If fake ivory is really indistinguishable from real ivory, then it's easier and cheaper to sell the fake stuff. If there are noticeable differences between the two, then the original objection-- that the ivory ban is impossible to enforce-- doesn't apply.

[Will, 3:11 PM]
New Arrival?:

Will JCA of Sua Sponte be coming to the University of Chicago this fall? Only time will tell.

[Will, 3:10 PM]
Words to Live By:

Waddling Thunder is upset at Potter Stewart's epitaph-- A good lawyer who did his best. I think it's very modest, a little charming, and quite revealing. The Very Hand of Justice? Too, too much. If you've got it, I'm not sure you need to flaunt it.

[Will, 2:55 PM]
Good Money after Bad:

I have always been annoyed by people who argue that wars help the economy, but I've never been able to frame my disagreement as well as Jane Galt does hers. (Link via Tim Sandefur)

[Will, 2:19 PM]
Binges:

Amy asks for the logic behind the new Scottish drinking laws. The proposal allows bars to stay open longer in order to decrease problematic drunkenness.

Why does this make sense? Remember that problematic drinking isn't just when people consume a lot of alcohol in one sitting, but it's also when people consume a lot of alcohol in one sitting in a short period of time. Five beers over five hours is better, from an anti-binge standpoint, than three beers over one. Furthermore, the proposal balances the open-hour-increase with a prohibition on cut-price drinks. The usual happy hour problem occurs when restaurants suddenly make present consumption a whole lot cheaper than future consumption-- for the price of two beers a drinker might rather have one now and one later, but if beers now are half as expensive, he might just down four now and forget about the later. This is the same idea that motivates economic-stimulus sales-tax holidays.

Now, the plan relies on the assumption that-- all things being equal-- drinkers will space out their drinking a little bit if they get a chance. By leaving bars open longer and forbidding price changes, the law will allow people to space their drinking habits to their taste. If drinkers like drinking their beer all at once, this proposal certainly won't stop them. In other words, the amount of beer consumed will increase, but so will the time over which it is consumed. Even if these both increase signficantly-- beer consumption increases 50% and time increases 150%-- that could lead to significantly less drunkeness. (In my example above the drinker who used to take 4 beers in an hour might now take 6 in 2 1/2.)

[Will, 2:07 PM]
Kennedy the Formalist...:

This letter in the New York Times a few days ago caught my attention:
In "Justice Kennedy Speaks Out" (editorial, Aug. 12), we read that Justice Anthony Kennedy believes in sentencing guidelines in principle but that the inflexible minimum sentences required by some laws are not necessary or wise. Why, then, did he cast the deciding vote upholding California's "three strikes" law?

In "U.S. Judge Sees Growing Signs That Innocent Are Executed" (news article, Aug. 12), we read that Mark L. Wolf, a federal judge, saw mounting evidence that innocent people were being executed, but he declined to rule the death penalty unconstitutional.

Why don't the votes of a Supreme Court justice and a federal judge in Boston reflect their thinking?

MARY WRAY

The votes of members of the judiciary on constitutional matters do not reflect the personal views of those members because that's not what members of the judiciary are asked to rule upon in those cases. It's ironic that Justice Kennedy, so frequently attacked by the conservative-blogosphere for decisions like Lawrence v. Texas, should be attacked for not doing precisely what the Cons think he does too much.

[Will, 2:01 PM]
Footwork:

The Chicago Tribune carries a short story about how the police shot a man driving a stolen car because they say he pulled a gun on them. But the intriguing thing is that the man driving the car was paralyzed from the waist down, and apparently driving the car with the use of a cane. The first time I read the story, I didn't notice the cane and spend a long time puzzling over how a paralyzed man could drive a stolen car. The cane-work still sounds pretty impressive, though maybe that's why he ran the stop sign in the first place.

[Will, 1:51 PM]
Odds and Ends:

Gosh. My fears that traffic would fade in my absence seem to have been entirely for naught. Maybe I should abandon this blog more often.

Many thanks to the recent links from Julian Sanchez (whose post on the privitization of tyranny is a must-read), from Randy Barnett, from CalBlog, which has taken a step in the pursuit of blogging etiquette, from How Appealling, and of course from Lawrence Solum. (Wow. That's two posts in a row without any actual substance.--ed. Patience, patience.)

[Will, 1:03 PM]
Returns:

I've just swept into Chicago via my beloved South Shore, and now it's time to review what the blogosphere's been up to in my absence. Posts will still be a little catch-as-catch-can as I'm dependent on our libraries for internet access. Hmm, and I see that Amanda has already covered what was going to be my first post of the day-- The New York Hunger Artist. On to other things.

[Amy, 1:27 AM]
Drinking Problems:

From the title of this article in the Guardian, "Time called on binge drinkers," one would expect that, in an effort to decrease overindulgence, Scottish officials are proposing decreasing the length of the drinking evening. But actually, in an effort to decrease overindulgence, Scottish officials are proposing lifting all restrictions on the times at which alcohol may be served. Though the article does mention that a similar measure recently enacted in Ireland only increased drinking-related problems, it does not mention why Scottish officials believe that making alcohol more readily available will decrease consumption. The best explanation I can see is that they hope consumption will only increase slightly as time increases significantly, leading people to drink only slightly more, but over a significanly longer time period, and thus reaching a lower overall level of drunkenness. Anyone have any better suggestions?

UPDATE: Many thanks to Will (as well as others via email) who clarified the logic behind this law. What interests me most, though, is whether the anti-binge effect of the law is strong enough to decrease total consumption of alcohol or only decrease drunkenness levels reached. While I recognize that the latter is a very worthy goal, there are still a number of health problems related to drinking that, to my understanding at least, hinge on consumption levels rather than drunkenness levels (cirrosis is one of these). When one is young, it is easy to believe that the primary consequences of a night of heavy drinking come from the impairment to one's judgement that occurs under the influence (interesting stories about dancing on bars have a much longer life than hangovers) that depends upon drunkenness rather than consumption, long term liver damage is more likely to come from habitual heavy drinking (even if one never becomes drunk enough to offer a demonstration of one's pole-dancing skills).

[Amy, 1:02 AM]
Crazy Californians:

After spending much of the past two weeks enjoying some of the various scenic wonders of California, both natural and man made, one memorable day of which was spent sampling various delicious wines in the Napa Valley, I've returned to reliable Internet access to see that the East Coast media establishment still seems determined to portray California politics as a three-ring circus. At first I was going to complain about this (and in particular, take the Washington Post to task for this editorial) but then I realized that it's actually in my personal best interests to encourage the belief that California is a state full of Very Strange People whose brains have been turned by exposure to too much sunlight, and whose characters have been insufficiently developed due to a dearth of experience shoveling snow. It's this belief, after all, that helps keep the cold, grey hordes from overwhelming the state, and raising property values from the stratospheric to the truly astronomical. So, as I really would like, one day, to afford to settle down in this fair state, I'm instead going to remind readers that the short list of "serious" candidates for governer includes only two people with actual political experience, accompanied by a millionaire businessman, a Green Party member, a gadfly socilite, and the Terminator. Still feel like moving?

And on a less facetious note, I've added this page from RealClearPolitics, which collects links to news stories concerning the California recall, to my links. (Via Virginia Postrel)

Tuesday, August 19, 2003

[Amanda Butler, 5:29 PM]
Performance Art:

David Blaine has announced plans to do just what I've been saying I'll do:
Beginning Sept. 5, Mr. Blaine says, he will spend 44 days in a Plexiglas box, 7 feet long by 7 feet tall by 3 feet wide, suspended over the Thames River in London. He will have just a set of clothes and a blanket, no food, and will receive only water via a feeding tube.
I've been researching the National Endowment for the Arts for my job this summer; although they no longer hand out grants to individual artists, I was going to apply for an individual fellowship from a local group receiving NEA funds. My project was to be performance art -- a recreation of Kafka's The Hunger Artist in Grant Park downtown. Needless to say, I never had any serious intention of doing this, unless I got terribly bored. Blaine does intend to fulfill his plan.

Compare the street magician
"Everything I've done before is irrelevant," he said in a recent interview, speaking in a nasally mumble that falls somewhere between distraction and shyness. "This one is going to be different.". . . . ""It doesn't have anything to do with anything other than I feel I have to do it. I want to do it." . . . "I believe it is completely possible to exist peacefully with absolutely nothing, as it was in the beginning and as it will be in the end," he said. "It will be a public isolation that I will have to endure by adapting and surviving as an animal would. On instinct."


with the hunger artist
Yet for other reasons he was never satisfied; it was not perhaps mere fasting that had brought him to such skeleton thinness that many people had regretfully to keep away from his exhibitions, because the sight of him was too much for them, perhaps it was dissatisfaction with himself that had worn him down. For he alone knew, what no other initiate knew, how easy it was to fast. It was the easiest thing in the world. He made no secret of this, yet people did not believe him, at best they set him down as modest, most of them, however, thought he was out for publicity or else was some kind of cheat who found it easy to fast because he had discovered a way of making it easy, and then had the impudence to admit the fact, more or less. He had to put up with all that, and in the course of time had got used to it, but his inner dissatisfaction always rankled, and never yet, after any term of fasting - this must be granted to his credit - had he left the cage of his own free will. The longest period of fasting was fixed by his impresario at forty days, beyond that term he was not allowed to go, not even in great cities, and there was good reason for it, too. Experience had proven that for about forty days the interest of the public could be stimulated by a steadily increasing pressure of advertisement, but after that the town began to lose interest, sympathetic support began notably to fall off; there were of course local variations as between one town and another or one country and another, but as a general rule forty days marked the limit.



Monday, August 18, 2003

[Amanda Butler, 5:38 PM]
Digesting:

As Will said, certain other bloggers have been incommunicado thanks to a bit of a blackout. I'm just back from being gone for a different excuse, and now I'm catching up on the newspapers and such I've missed while camping. I only learned of the blackout because we hauled out the emergency radio to figure out what a snatch of overheard conversation -- "The entire East Coast is down" -- meant.

Sadly, I did not succeed in my quest to summit Long's Peak. The people I was hiking with and I were operating on 0, 2, and 4 hours of sleep; when we reached the far side of the mountain, just a mile short of the summit, wind whipping around us in the deep morning shadows, one of us got far too cold to safely continue. It's pretty cold up there, especially since the footing is too trecherous and the slopes too steep to push on very quickly. I was more chilled than I 've been in a while. I had on a t-shirt, umbros, long silk thermal pants, two long silk thermal shirts, windproof pants and jacket, gloves, and a knit hat. I probably should have gone with an insulated jacket. True, a few other climbers were in t-shirts and shorts. But I carry a jean jacket for the shady breezes of a DC early evening in June, and certainly when I'm out around Chicago in August. I never have picked up a tan out West.

[Amy, 12:58 PM]
Twenty Questions III: Lawrence Solum:

This week brings us another installment of our "20 Questions" feature, this time we have turned to Legal Theorist Extra Ordinaire Lawrence Solum:


1: Why did you start blogging?


Curiosity, mostly. When I started I had only a vague notion of what the blogosphere was all about, but I perceived that there might be an open niche in the ecosystem for a blog that focused on the intersection between normative legal scholarship, jurisprudence, and political theory. Another interesting question is: Why did I keep blogging? And the answer is that I was simply amazed and delighted by the response to my blog. I expected a few dozen visitors a week, but I discovered that hundreds and sometimes even thousands visited the blog on a single day. Even more astounding, I found that policymakers and pundits were reading the blog-despite its rather esoteric focus.
2: What blogs or publications do you consider absolute must-reads?


Read my links! Seriously, I regularly read about two dozen blogs, but there are a few that I visit almost every day. Crooked Timber has become a favorite; I was already a huge fan of Chris Bertram's Junius-not to mention the Farrells, Tom Runnacles, and Micah Schwartzman. The Volokh Conspiracy is another daily read. Of course, I knew Eugene Volokh professionally, and I became a huge fan of Jacob Levy and Orin Kerr, and the Conspiracy just keeps getting better, especially with the addition of Randy Barnett and David Bernstein. But the most important blog for me is Howard Bashman's How Appealing-a truly amazing source of information about law in the United States. One pleasant surprise about the blogosphere has been the high quality of many student blogs. Nate Oman just graduated, but his A Good Oman has been a joy, as has been Greg Goelzhauser's blog. Most recently, I'm following Brian Leiter's The Leiter Reports. Jack Balkin, with whom I've had a debate or two, posts irregularly but brilliantly on Balkanization.


Outside the blogosphere, I regularly read
Philosophy and Public Affairs and Ethics. More and more, however, I find that I read articles in working paper form, on the Social Science Research Network (SSRN) and via Online Papers in Philosophy. Almost all the scholarly journals in law are available online (sadly often on proprietary services like Westlaw and Lexis/Nexis), and these days I hardly ever touch a law review article in non-electronic form.


3: It seems as though your approach to Constitutional Interpretation is a very formalist one- one starts by following the rules and precedents laid down by previous courts, then when those are unclear one turns to the text and structure of the Constitution, and when those are unclear one looks to original practice to clarify the meaning of the text. Is that a fair characterization of your approach?

Yes. Until quite recently, legal formalism has been terribly unfashionable as an approach to general jurisprudence. In an important sense, legal thinking in the last century was dominated by American legal realism, from Holmes through Frank, Llewellyn, and Pound to the Critical Legal Studies movement at the end of the century. Sophisticated neoformalism, in various forms, is the hot new thing, although legal formalism itself builds on a set of very traditional ideas about the law. My own approach is distinctive in two ways. First, unlike many originalists and textualists, I view a strong doctrine of precedent (or stare decisis) as an essential component of constitutional formalism. Second, although I think that legal formalism can be defended on consequentialist or deontological grounds, my own view is that fidelity to law is required by the virtue of justice-a position defended in my essay Virtue Jurisprudence: A Virtue-Centered Theory of Judging.

4: You have become one of the most committed defenders of "rule of law" values in the blogosphere. Are there ever situations where rule-of-law values should give way to individual circumstances, or would those be the exceptions that ate the rule?


This is a marvelous question and a very difficult one. My own view is very much influenced by Aristotle's theory of equity. Because legislators or judges must express legal rules in general language, there will always be cases where even the best formulation of the rule will produce unanticipated and unjust results. Hence, if the power to do equity is given to an official-not necessarily a judge-who has the virtue of practical wisdom (or phronesis), equity can be reconciled with the rule of law. The trick is one of institutional design. If abused, the power to do equity becomes the power to judge arbitrarily or, even worse, the power to legislate on an ex post, ad hoc basis. I wrote an essay on these questions, entitled Equity and the Rule of Law, which was published in Nomos some years ago.

5: You have previously a theory of "really strong stare decisis," suggesting that the Supreme Court ought to overrule previously established precedent only in the most extreme cases. Do you have any suggestions for how the court ought to find those extreme cases? That is, when, if ever, is a point of law "better right than settled"?

This is another hard and good question. Let me take it head on, by considering the case that is most problematic for my view-Brown v. Board of Education, perhaps the single most admired decision of the Warren Court. Brown is so difficult, because it is a decision that was apparently contrary to precedent but ended a very great evil, Jim Crow or segregation, the American equivalent of apartheid. In the late twentieth century, Brown v. Board was taken as the paradigm of a great decision-the correction of injustice by a Supreme Court that was willing to overrule precedent and pronounce broad legislative holdings. Surely, if we know anything about normative legal theory, we know that Plessy v. Ferguson deserved no respect on the basis of the doctrine of stare decisis.


>From this view of
Brown v. Board of Education, one can move in a few simple steps to the conclusion that it is the general role of the courts to do justice, and that this task should not be impeded by precedent, evidence of the original meaning of the constitution, or even the constitutional text's plain meaning. The Supreme Court, it would seem, should be a "council of revision" or super-legislature, with the power to do justice.


Everyone is familiar with the difficulties that attend this view of the role of the courts. We all are willing to give the courts license to depart from precedent, ignore original meaning, and disregard the constitutional text, if the Court will only do those things when we approve. We are all ready to condemn the Court for departing from precedent, original meaning, or the text, if the Court does so to further values with which we disagree.


Legal formalism is the view that it is essential to create a wall of separation between the institutions that resolve disputes within the legal framework from the institutions that make and revise the laws. Without such a wall, the pressure to politicize the courts will mount. And once the process of politicization is underway, it is difficult to stop. So the circumstances in which the Courts should act lawlessly are very rare indeed.


Was
Brown v. Board one of those cases? It may well have been. But before we rush to the judgment that it was, we ought to consider the alternatives. If the Supreme Court had never heard Brown v. Board, would segregation have been ended through other means? If the Supreme Court had followed the pre-Brown strategy of holding that particular instances of segregation were unconstitutional, because on the facts, separate was not equal, would the actual pace of desegregation have been different? Those are judgment calls that require greater practical wisdom and experience that I possess to make.


But I am sure about the following. Not every case is
Brown v. Board. Not every social injustice is the moral equivalent of segregation. An adjudicator who possesses the virtue of justice has the disposition to decide cases in accord with the law, rather than her personal views of what the law should be. Judges should twist the law only when that is necessary to avoid a very great and clear evil that cannot better be overcome by other means.


6: Following up on that, what ought the court do when faced with inconsistent precedents? For example, in considering the Texas Statute in Lawrence v. Texas the Court had to grapple both with the ruling in Bowers v. Hardwick (1985) and also those in Romer v. Evans (1996) and Planned Parenthood v. Casey (1992). Which precedent should the court have followed and how does it decide?

Let me preface my answer with two points. First, in my view, prohibitions on private sexual conduct are unwise and unjust. Second, the question whether, precedent aside, laws against private sexual conduct by consenting adults is a difficult one-requiring for its resolution an account of the meaning of the Ninth Amendment and the Privileges and Immunities Clause of the Fourteenth Amendment. I am far from an expert on those clauses, and I simply don't know whether a sensitive understanding of their original meaning would support the result in Lawrence v. Texas. Having said that, Lawrence was decided in a particular legal context-with Bowers v. Hardwick on the books. So one might suppose that I would be committed to the view that the Court in Lawrence was obligated to follow Bowers. And I do believe that the Supreme Court should have respected the Bowers decision.


But the matter does not end there. One problem with discussing the doctrine of
stare decisis is that our contemporary notion of what precedent means has been shaped by legal realism. Whereas legal formalists set great store in the distinction between holding and dicta, legal realists see the holding of a case as a prediction of the behavior of future courts. Thus, if a majority of the Supreme Court is willing to sign on to a "holding" that goes far beyond the facts of the case at hand, realists are more than willing to call this "holding" law. I couldn't disagree more. The holding of a case that is entitled to binding stare decisis effect is the ratio decendi-only that portion of the reasoning that is essential to the result. Broad rules of law, therefore, never emerge from a single case, but are only the result of an accumulation of precedents.


This brings me back around to the situation the Supreme Court faced in Lawrence. Bowers v. Hardwick was relevant to the result in Lawrence, but it was not necessarily decisive. The Bowers court addressed the substantive due process issue, but other legal theories were before the Court in Lawrence-including the equal protection theory that was the basis of Justice O'Connor's concurring opinion and (potentially) a privileges and immunities clause theory, urged in amicus briefs. And believe it or not, I don't know how I would have decided Lawrence, because on my view that would require immersion in the briefs, cases, and history-something I simply haven't done in the serious way that would be required were I to face these issues as a judge.


7: What effect do legal theory and scholarship have on actual legislative/judicial decision-making?

It varies tremendously. Sometimes legal scholarship directly affects the outcomes in particular cases-the famous Brandeis and Warren article on privacy, Charles Reich's article on the new property, and Catherine McKinnon's work on sexual harassment and gender discrimination are examples of direct and immediate shaping of the law by ideas from legal scholars at the level of theory. But the more usual path of influence is indirect and mediated. Legal realist scholarship, which was highly theoretical, had an enormous influence on American law but that influence played itself out over a period of decades. And it goes without saying that quite a lot of legal theory comes and goes without leaving a mark on the law.


8: Given the growth of online paper resources, computer databases, and the like, do you have any thoughts on what will be the future of libraries and paper journals in the next fifty years?

Predicting the future is always perilous, so I prefer to predict the present instead. Online resources are already having an enormous effect on legal scholarship-a much greater influence than in most other disciplines. This is in part the result of a historical accident. Lexis/Nexis and later Westlaw began to put most important primary source materials online in the 1970s and most important law journals went online in the 1980s, a trend that was extended to a variety of monographs in the 1990s. For all practical purposes, if it isn't online, it doesn't exist for purposes of scholarly legal research-setting aside legal history and law and social science work. Recently, however, SSRN has begun to accelerate the pace at which new ideas are disseminated in the legal academy. Increasingly, I find that I read papers before they are published. The role of intermediaries (e.g. journals and their editors) is already on the wane.


9: You have been acquitted of the charge of being a member of the frenzied left. Do you consider yourself more a member of "the right" than of "the left"? Do you think formalists are more likely to be right-wing than left-wing?


I find the simple left-right model of political ideology to unhelpful. My own political views have been formed mostly in reaction to thinkers that would be categorized as on the left. John Rawls, Jon Elster, Gerald Cohen, Amartya Sen, and John Roemer, all have been important influences. But unlike many on the left, I am a great believer in markets and a skeptical fan of a good deal of the work done by "right-wing" figures in public choice theory. As a pro-market/anti-regulation, formalist, egalitarian, I am afraid that I hold views that would result in my expulsion from every camp, right, left and center.


The association of the left with realism and the right with legal formalism is, in my opinion, mostly a historical accident. It just so happens that we are now in an era where the political right is opposed to Supreme Court decisions clothed in realist garb.
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10: Law School is often seen as a more professional and practical discipline than most other post-graduate studies. What sort of role does abstract philosophy have in the legal academy as compared to other disciplines?

The legal academy is more interdisciplinary today than it has ever been, reflected in the increasing numbers of legal academics with PhDs in other disciplines, especially economics, political science, history, sociology, and philosophy. A crude picture of the legal academy might portray interdisciplinary warfare on several fronts. On one side of the canvass, there is a noisy battle between positive and normative theory-with a group of social scientists and historians arrayed against a bickering army of normative economists, philosophers, and doctrinalists. Over at the other end of the picture, however, moral and political philosophers are locked in a to-the-death struggle with welfarist economists, while historians and sociologists do pitched battle with positive economists over explanatory theory.


Abstract philosophical analysis and theorizing plays an important role in the legal academy, but most legal theory bears the same relationship to legal philosophy that political theory (as practiced by political scientists) has to political philosophy (as practiced by academic philosophers in the Anglophone world). Lawyers need to reach bottom-line conclusions, because law is a practical discipline.


When I was a philosophy student at UCLA, it was more usual than not that a graduate seminar would start with an argument on the first page or two of the first assigned reading, and then that argument would be dissected for the remainder of the quarter. That style of rigorous argument is found in the legal academy, but it is rare.



11: Richard Posner, among others, has suggested that Law School now functions as a sort of "brain drain." Bright young people, the argument goes, no longer enter graduate schools in economics, political science, or philosophy but turn instead to Law School where the monetary returns are far greater. This in turn contributes to a dearth of serious philosophers and economists, and a glut of lawyers running around suing each other. Do you think there is any truth to this?

Posner's thesis depends on the facts, and I just don't know what the facts really are. I believe that lawyers play an important social role, and that litigation, in particular, is important to the maintenance of the rule of law-which is foundational for a robust market economy. The solution, of course, is to raise the pay of historians, philosophers, political scientists, and sociologists. Economists, I believe, do a little better-in part because they can find jobs in Business Schools and in the private sector.


12: Do you have advice for those in law school who hope to pursue a career in the legal academy rather than practice law?
First and foremost, consider getting a PhD in addition to the JD, and in the alternative, adding a Masters degree to the JD. Of course, I'd advise a philosophy PhD, but others would counsel in favor of economics, history, political, science or sociology. Second, write, write, write! Early and often. Many law schools will not even look at an appointments candidate who has not published at least one piece of legal scholarship beyond a student note or comment. Third, begin to immerse yourself in the informal networks that make up the legal academy-by getting to know the faculty at your own law school, but also by following new scholarship as it comes out on SSRN or in the law reviews. Consider attending an AALS or APSA meeting as a law student. And a really good blog doesn't hurt!


The market for entry level jobs in the legal academy is intensely competitive. There are literally hundreds of applicants for every job at the top fifty law schools. Even top graduates at very prestigious law schools will find it difficult to place well, unless they are proactive in overcoming the awful and tragic fact that even elite American law schools offer very little in the way of training or support for their J.D. students who plan to become legal academics. (There are exceptions, of course.)



13: What originally drove you to study law?


When I was 14 years old, I attended a summer program for high school debate students and the instructor played a phonograph record of Harvard Law Professor Laurence Tribe as a college senior in the final round of the college national championships. When I learned what Tribe did for a living, teach law, I somehow decided that was what I wanted to do. Although I I thought long and hard about philosophy as an alternative, I stuck with my 14-year-old plan. And here I am!

14: You have recently written about "copynorms," and suggested that RIAA needs to restore the norms that copyright infringement is wrong. do you think copyright infringement has always been taken as lightly as it is by today's youth, and if not, what do you think contributed to the decay of the norm?


I am not aware of any empirical research on this question, but I am inclined to think that copynorms-the informal social norms regarding the rightness or wrongness of making unauthorized copies of copyrighted material-have never been terribly strong. Remember that before the photocopy machine and the tape recorder-relatively recent innovations in the history of copyright law-individuals simply didn't have much opportunity to engage in systematic violation of copyright laws. With the introduction of each new copying technology-the photocopy machine, the audio tape recorder, the VCR, and most recently, peer-to-peer filesharing, individuals have used the new technology to make unauthorized copies of copyrighted material. The case of audio tape is particularly revealing. Before Napster, kids made cassette tapes of their favorite music, e.g., the compilation tapes made by John Cusack's character in the movie versionof High Fidelity. The law actually accommodated itself to the copynorms. The Audio Home Recording Act actually had a provision that immunized noncommercial analog copying of music. Part of the music industries problem with P2P file-sharing is that they don't have a strong set of social norms to build upon.


15: If you were consulted by the president asking for advice to fill the next Supreme Court vacancy, who would you recommend? What if you were consulted by a democratic president with a small majority of democrats in the Senate?


This is the kind of question that one should be very cautious about answering off the cuff. In general, I think that Presidents should appoint judges who possess what I have called the judicial virtues-civic courage, a judicial temperament, judicial intelligence, and judicial wisdom-and especially the virtue of justice, the disposition to decide in accord with the law rather than the judge's own preferences or ideology. My own heroes among legal thinkers all grew up during a period of realist hegemony, and hence they tend to have views about general jurisprudence with which I disagree. Having said that, I think that Richard Posner and Ronald Dworkin are the two most brilliant doctrinal thinkers of our era. Neither will serve on the Supreme Court, but I would be delighted if they could serve together. From a younger generation, I might pick Cass Sunstein and Eugene Volokh, and who knows, they might both have a chance!


16: What Supreme Court decision do you think has been the most harmful to formalist rule-of-law values?

There are so many from which to choose! I think that the Supreme Court's nineteenth century sovereign-immunity decision, Hans v. Louisiana, represents a real low-water mark for the rule of law-although the issues are quite complex and debatable. The Warren Court's Miranda decision represents an extreme version of legal-realist legislative holdings; the Miranda Court essentially wrote a code of conduct for the interrogation of criminal defendants-the very antithesis of restrained, formalist judging.


17: You were a student and friend to John Rawls, the late philosopher who suggested a thought-experiment called the "veil of ignorance," in which members of a society create the rules for that society without knowing what roles in that society they will occupy, or what utility functions they will have. Do you think this is a useful thought experiment, or is it impossible to figure out what one would think and want if one were not necessarily
oneself?


For me, Rawls's description of the original position, in which representative parties select principles of justice for the basic structure of society from behind a veil of ignorance is one of the most important ideas is the history of political philosophy. My friend, the eminent political philosopher and Hobbes scholar, Sharon Lloyd (University of Southern California), uses an analogy when explaining the original position that I think is brilliantly illuminating. Imagine that you are a parent, and that one of your children is tormenting her younger sibling. You say, "How would you feel if your sister did that to you?" Of course, your child cannot become her sibling. That is impossible. But one can nonetheless meaningfully engage in the thought experiment of assessing one's own actions from the point of view of another person. Similarly, we can reason as if we were behind the veil of ignorance in the original position. Indeed, we do this kind of constructivist reasoning all the time as part of our ordinary moral lives. "Would you feel that way if you didn't have a direct stake in the outcome?"-is a question we ask and answer all the time.


John Rawls was both a gentle and generous man and a philosopher of the very highest order.
A Theory of Justice did more than any other work in the twentieth century to revive normative political and moral philosophy. In my opinion, it is the one book from that century that I believe is likely to enter the canon with Leviathan, The Two Treatises of Government, and The Prince.


18: Some people have suggested forcing non-formalist Judges in the judiciary to adhere to formalism through legislative processes-- either by refusing to enforce certain decisions (like the 9th Circuit's Pledge of Allegiance ruling) or by impeaching Judges who egregious ignore the law. What do you think of these tactics?

This question is really several different questions. One dimension of the question concerns the proper limits of judicial power and the deference owed by the legislative and executive branches to judicial decisions. Another dimension of the question goes to the legitimacy, justice, and efficacy of civil disobedience as a tactic to be used by the political branches in response to badly made judicial decisions. And a final dimension of the question goes to the standard for the impeachment of Article III judges. I am definitely not a fan of civil disobedience as a tactic in inter-branch power struggles. I am inclined to think that the standard for the impeachment of federal judges ("high crimes and misdemeanors") should not be stretched to include ordinary disagreements over judicial philosophy. But I also believe that each branch of government should have responsibility and authority to interpret the Constitution within its own sphere, and I am inclined to think that the United States Supreme Court has sometimes confused its legitimate power to resolve with finality the constitutional questions that arise in particular cases or controversies with the very different power to make authoritative general pronouncements about constitutional questions that bind the other branches as a kind of statute or constitutional amendment.


I haven't really seriously studied the Ninth Circuit's pledge of allegiance decision, but my initial impression was that, although unpopular, that decision was within the realm of reasonable legal opinion. My reaction to the tidal wave of criticism at the time was that much (but not all) of it was irresponsible political pandering.


19: Do you read fiction, and if so what sort of fiction do you read?< br>
I am an avid reader of fiction, especially novels, of all sorts. My favorite novels include Iris Murdoch's The Book and the Brotherhood and A.S. Byatt's Possession. I have a great weakness for genre fiction, including mysteries, science fiction, and espionage novels. I just finished Robert Littell's The Company, which I thought was deliciously entertaining. I had lunch with Eugene Volokh recently, and we both remarked how much we enjoyed Vernor Vinge's novel, Fire upon the Deep.


20: You come across on your blog as a very scholarly person. What unscholarly things do you do for fun?


Let me say first that I get a great kick out of my job. When I go on vacation, I am perfectly content to read scholarly papers, write, and blog. Lest I seem unbearably dull, let me add that I love to travel. My favorite places include the American Southwest, especially the magnificent landscapes of southern Utah and the equally breathtaking California coast, especially near Big Sur. I adore lazy afternoons spent reading and daydreaming in cafes in towns and cities-my favorites include Bologna, Vienna, Oxford, Shanghai, Budapest, Hong Kong, Amsterdam, and especially London. And I have a ridiculously large collection of classical music on CD-with an awful weakness for bombastic composers of really big symphonies, such as Bruckner, Mahler, and Shostakovich-redeemed perhaps by an equal and offsetting fondness for the piano music of Debussy and Schubert. If you don't own it, buy Walter Giseking's performance of the Debussy Preludes, and then for an illuminating shock, listen to Arturo Michelangeli Benedetti's recordings of the same works. That's heaven!


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