debating prison abuse

Ian Ayres

The first debate curriously paid little attention to the abuse at Abu Ghraib prison. It is understandable why President Bush would want to avoid the topic. But it is a little troubling that Kerry has fallen silent on this issue. I worry that Kerry thinks that talking about the human rights of Iraqis makes him look soft on terror. There was a time when Kerry a while ago was willing to speak out on this issue. But now adays he just wants to track down and kill terrorists. Most perplexing though is that Jim Lehrer did not raise the subject. That's one of the most important roles of a commentator -- to ask the questions that neither candidate wants to raise. He might have asked: "Did the prison abuse of coalition soldiers tend to undermine the human rights justification for the invasion?" Saddam killed and abused many of his citizens in the past. But would Saddam with weapons inspectors scurry around his country during the last months have killed more innocent Iraqis and abused more prisoner's than coalition forces have?"

Posted 2:42 PM by Ian Ayres [link] (4) comments

Standing Tall

JB

One feature of last night's debate that I was particularly interested in was how often the cameras showed both Bush and Kerry in the same shot. Kerry is much taller than Bush, and Bush has a habit of hunching over the lectern slightly when he wishes to emphasize his sincerity, which makes him seem even a bit shorter than he actually is.

It turns out, for whatever reason, that the taller of the two presidential candidates usually wins the election. I am informed that this trend goes back all the way to the beginning of the country's history, although, if true, I don't know how anyone could have found a candidate shorter than James Madison. The last exception to this general trend occurred in 2000, when George Bush assumed the Presidency rather than Al Gore (but of course we all know who *really* won that election.)

Posted 6:54 AM by JB [link] (1) comments

Begging To Differ

JB

One of my former students, Jennifer Chacon, sends in her assessment of the debate:

I have to tell you that I think you're dead wrong about tonight's debate.

Kerry's challenge was not to appear "transformative". What he needed to do was present himself as someone who would continue waging the "wars" that have been started on the watch of the incumbent, but who would do it better. He didn't need to present a message of transformation; he needed to relay a message of plans for thoughtful and improved continuity. This, I think he did competently.

Most of the undecided voters I know (don't ask me how I came to be related to so many "undecided" types) are wavering not because they favor what Bush is doing, but because they are concerned about changing horses midstream. I wish I was kidding. This seems like a terrible reason to vote for Bush from my perspective, and probably from yours. But you should have no doubt that there is a real concern (no matter how irrational it may seem) that switching bosses in the midst of a swirling foreign crisis abroad and low-level domestic panic at home will open the country up to unspecified grave dangers. Bush thrives on that message. Kerry's real job tonight was to let people know that he could competently pick up the reins and steer us -- smoothly -- in a new, but not radically different, direction.

Apparently Jennifer is not alone in her assessment. (Link via Atrios).

Posted 6:40 AM by JB [link] (3) comments

A Transformative Election Without A Transformative Candidate

JB

I caught the debates tonight. Both candidates acquitted themselves well, but in the current political context this is greatly to the advantage of Bush.

Political scientist Walter Dean Burnham famously argued that American democracy features pivotal and transformative elections, (which Burnham called "critical elections") during which the parties realign, new political collations form, and one party begins to dominate. These elections occur roughly every 36 years; examples are the elections of 1824, 1860, 1896, 1932, and 1968. The last major transformative election of this sort-- i.e., one that produced a major realignment-- occurred in 1968, as the New Deal coalition began dissolved and the South moved from the Democratic to the Republican parties. The 1980 and 1994 elections confirmed and solidified this change. Thirty-six years from 1968 is 2004. Thus, the time is ripe for another transformative election, one in which, one might think, the Democrats would form a new winning coalition.

The problem is that the current Democratic presidential candidate, John Kerry, does not appear to be a transformative candidate. He does not offer a message of transformation. Rather, he offers a message of greater competence and better judgment in prosecuting the war on terror. 2004 will not be a transformative election unless the people of the United States see a clear choice between the status quo and a new approach, and believe that by choosing one candidate they are making a decisive change in the direction of the country. Although it is certainly possible that Kerry might produce such a change, there are few signs of this in his campaign or in the way he delivers his message. This is probably his greatest weakness as a candidate. He is offering competence and judgment when he should be offering a decisively different vision for leadership. He should be campaigning for a decisive rejection of the politics of the past and offer a bold vision for the future. This, so far, he has failed to do.

There are two possible explanations of the current situation. One is that the country is indeed ripe for a transformative election, but it will not occur until 2008, when, tried of eight years of incompetence and kleptocracy by George W. Bush, the people of the United States will decisively reject his policies. The other, and far more troubling possibility from my perspective, is that 2004 is indeed a transformative election, but the transformative candidate is George W. Bush, who is ushering in a long-term Republican majority.

If the second scenario holds, the best analogy would be to the 1896 election, in which the Republicans forged a new winning coalition that replaced the configuration that emerged directly after the Civil War. The Republicans dominated the Presidency from 1860 to 1896, and they dominated the Presidency from 1896 to 1932, but the Republican Party had changed greatly in the interim.

I hope that the second scenario does not come to pass. If it does, I fear greatly for the future of my country, for the new Republican party that Bush appears to symbolize is a toxic combination of plutocracy, intolerance, and foreign misadventure.

Posted 11:10 PM by JB [link] (2) comments

Ashcroft: We Need More Death

JB

Attorney General Ashcroft is unhappy that juries around the country seem less and less interested in killing people, the Los Angeles Times reports:

Shortly after arriving at the Justice Department nearly four years ago, Atty. Gen. John Ashcroft was faced with a new internal study that raised serious questions about the application of the federal death penalty.

A small number of federal districts, including pockets of Texas and Virginia, were accounting for the bulk of death cases. Experts decried the geographical disparities.

For Ashcroft, an ardent supporter of capital punishment, the solution was to seek the death penalty more often and more widely.

Since then, he has pushed federal prosecutors around the country — often over their objections — to be more aggressive in identifying prosecutions that could qualify as federal capital cases. Much of that effort has been in states that have banned or rarely impose capital punishment.

But Ashcroft's quiet campaign, which has been overshadowed by his prosecution of terrorism cases, has made few inroads.

With public support for the death penalty in decline, jurors have rebuffed calls for the death penalty in 23 of the 34 federal capital cases tried since 2001, according to the Federal Death Penalty Resource Counsel Project, a court- funded group that assists defense lawyers in capital cases.

Whether one supports or opposes the ability of the state to sentence people to death, one should applaud rather than decry the fact that juries in this country seem less willing to impose it. That trend has been produced by the individual decisions of members of the local communities all over the United States, who are supposed to represent, however imperfectly, the conscience of their communities. Even if one grants, as one must, that prosecutors and existing legal precedents play a role in the decrease in jury sentences of death, the trend is clear.

Juries all over the country are telling the courts that death is a matter of last resort, to be used sparingly, and only in the most serious cases. In many places they do not want it to be used at all. This is not timidity. It is not lack of empathy for victims. It is not insufficient concern with justice. It is civilization. By comparison with these juries all around the country, who regard the taking of a criminal defendant's life with supreme seriousness, Attorney General Ashcroft seems a savage, bloodthirsty brute.

Why is such a man the nation's chief law enforcement officer?

Posted 9:11 AM by JB [link] (4) comments

Remember the Election of 2000

JB

It seems that the ghost of Bush v. Gore is rising again to haunt American democracy. A recent Vanity Fair article has sparked renewed attention about the 2000 Election, and about the badly reasoned Bush v. Gore opinion. Jeff Rosen has pointed out in the New Republic that the political parties are gearing up for fights over recounts along the example of the 2000 election, making use of Bush v. Gore as a precedent. And there is the possibility that there will be a constitutional challenge to Colorado's referendum proposal to split the state's electoral votes by percentage of the popular vote received, based on arguments first offered in Bush v. Gore.

After the last election I did a painstaking legal analysis of both Bush v. Gore and the work of the Florida Supreme Court that led to it. You can find that article here. I concluded that, despite the many criticisms the Florida Supreme Court has received, it didn't do all that bad a job, given the statute it had to work with, and the most controversial judgments it did make (for example, changing the date of certification) weren't essential to the ultimate outcome. When you look at the statutory framework carefully, you discover that, all in all, the Florida Supreme Court has gotten a bum rap. On the other hand, the Bush v. Gore decision-- especially the part concerning the remedy-- was really quite shoddy. Several academics have offered articles defending the decision, but you really have to rewrite the opinion to do that. The decision that the Court actually produced doesn't make that much sense, and it strongly suggests (perish the thought) that ideological considerations may have (consciously or unconsciously) influenced the Justices.

But the important point to remember, as we head toward another election, is that neither the Florida Supreme Court nor the U.S. Supreme Court would have been involved at all, but for another very serious violation of law. Operatives of the Florida Republican Party violated the federal Voting Rights Act by keeping a sizeable number of blacks from voting using inaccurate lists of disqualified felons. For the details, see the discussion in the first pages of this article, written in 2001.

People go on and on about the butterfly ballot, and Bush v. Gore, but the real tragedy of the 2000 election was the calculated and ultimately successful disenfranchisement of African-American voters. This is the real injury to democracy that occurred in 2000, and there is every sign that supporters of the current Administration are up to their old tricks again, not only in Florida, but in other states as well.

I consider myself second to no one in my disdain for the way the Supreme Court conducted itself in Bush v. Gore. But in the larger scheme of things, Bush v. Gore was small potatoes. The real injury to democracy in 2000, and the real threat today, is the theft of the franchise by political operatives who will stop at nothing to keep their party in power.

Posted 10:22 AM by JB [link] (6) comments

"Plagiarism" correction and elaboration

Mark Tushnet

It's been pointed out to me that my assertion that I hadn't read Balkin's book was incorrect -- or, at least, that if I hadn't read it I shouldn't have written a blurb for the jacket! Indeed, I did read the book in manuscript for purposes of writing a blurb (although it remains true that I haven't read "the book" understood to refer to the thing between hard covers). [I don't blurb books that I haven't read at least in manuscript.]

This, though, actually supports a couple of the points I made. (1) I simply forgot that I had read the manuscript a couple of years ago. Were I still working on something about Brown v. Board of Education, and had one of the book's chapters put something I wanted to say in an interesting way, it's entirely possible that I would generate the same phrasing, thinking it was my own. (2) The book contains a narrative of the case's background. There are a limited number of events to deal with, they happened in the order they did, and there are therefore a limited number of ways to provide the narrative. Similarities at least in presentation are inevitable. Combined with (1), one might even find things that look like "copying" even though there was no conscious appropriation of someone else's work.
Posted 7:24 PM by Mark Tushnet [link] (0) comments

"Plagiarism" by Legal Academics

Mark Tushnet

The recent flap regarding Charles Ogletree's work and some follow-ups going after, among others, Laurence Tribe prompt me to recount some incidents in my scholarly life. [Disclosure: I read Professor Ogletree's book in manuscript and did not catch the material drawn from Jack Balkin -- I hope because (my bad) I hadn't read Balkin's book.]

These thoughts are mostly about using the work-product of research assistants. I don't use my research assistants "very well," because my experience is that I know what I need better than they do, even when I am careful about giving them instructions, and I can locate it more quickly than they can. In doing work in archives, I can tell what's important to me far better than they can. Still, sometimes I do ask them to produce memoranda that I think will be helpful to me.

Once I had a very good research assistant who I asked to summarize the interpretations scholars had offered of the discussions within the Supreme Court prior to Brown v. Board of Education, thinking that I would re-work it into a "literature review" section of the article I was writing. Her memorandum was so good -- and, because I knew the literature, I knew the memo was quite accurate -- that I simply incorporated the memorandum into the article, which was published as by Mark Tushnet with Katya Lezin.

More recently I've asked some research assistants to develop "case histories" of important recent Supreme Court cases including Boerne v. Flores and Atwater v. Lago Vista. Some of these case histories have been done very well. The research assistants wrote up the case histories, largely from newspaper accounts, and supplied me with the background material they relied on, such as the articles or transcripts of radio interviews. I read the material and re-worked the case histories I had been given, sometimes changing the order of the presentation, sometimes supplementing some of the quotations the RA had picked out of the newspaper articles. But, when the case history was done well, the final product was not that different from what the research assistant had given me initially. [One question is whether I did enough with the case histories that the published product could fairly be regarded as "mine." Another is whether, when I did change the presentation, the marginal improvements, if any, were worth the effort.]

Here there are questions of attribution. The most interesting arise in connection with a publication format that was not receptive to law-review style footnoting, and did not give me a chance to produce an "acknowledgements" page. For the case histories in that format, I have a long endnote listing the newspaper articles, etc., from which the account is drawn. I remain a bit nervous about not including an acknowledgement of the research assistant in each of those endnotes, at least where my judgment is that the case history is at least as much his as mine.

The case histories raise an additional issue. Once I received a manuscript review from a university press in which the reviewer criticized me for having drawn material from her book without attribution. As it happened, I hadn't even read her book. The issue arose because she and I both dealt with the drafting history of some Supreme Court opinions. There's a limited supply of sources for this, the sequence of events is straight-forward, and anyone with some judgment will know which sentences and phrases are worth quoting from the sources. So, what happened was that my account did indeed read quite like hers even though they were independently written. (Anybody here remember Arnstein v. Porter?) That is, the similarity resulted from the constraints of the sources and the form in which the material was to be published. [In the end, I inserted citations of the form "see also" to her work.]

A final, slightly different problem, not about "copying" but about "sourcing." When you write a long-ish book over a several-year period of research and writing (and don't have law review editors to check your footnotes), the probability approaches 1 that either or both of these problems arise: (a) You quote something and include a note identifying the source, and the identification is inaccurate [for material from archives, you've miscopied the box number in which the document was located; for material from newspapers, you've miscopied the date of publication; and the like), and (b) You read something early in your research that makes a point in an interesting way, but you're not ready to write the material up then; when you are, you write something that's strikingly like what you read a year or two earlier and think that you've come up with a nice way of making the point, not realizing that you are unconsciously "copying" something someone else had written. (Even checking the footnotes wouldn't catch the second of these.) I am quite confident that I've done at least the first of these, and probably the second -- although in the nature of things I don't know where I've done them. But, what my knowledge has done is make me a bit more tolerant than others are about at least minor failings in the transcription-attribution-writing process.

None of these comments are directly responsive to the particular questions that have recently been raised about others' work, but I thought it might be helpful to make them available in the blogosphere.
Posted 1:57 PM by Mark Tushnet [link] (160) comments