Balkinization  

Friday, May 31, 2013

A bleg on the Supreme Court and novel technologies

Mark Tushnet

I recall reading (or reading about) a Supreme Court opinion in the 1920s that referred to automobiles as a then-new technology (not using that term, but clearly referring to the automobile's novelty). The case was probably a dormant commerce clause (regulatory or taxation) case or a preemption case in which the argument was that we (the Court) ought to give states regulatory leeway to figure out how to deal with this novelty. Can anyone identify the case? (I have a vague feeling that it was written by Peirce Butler, but maybe McReynolds or Sutherland.) E-mail to me [mtushnet at law.harvard.edu] is fine.

Thursday, May 23, 2013

Obama's National Security Speech--Eloquence, Yes; Change, Less Certain

Jonathan Hafetz

President Obama's speech today at the National Defense University represents a renewed effort to frame U.S. national security policy and to impose a sense of order and coherence amid mounting criticism of drone killings and Guantanamo. While the speech could help shift the direction of U.S. counter-terrorism policy, the President's rhetorical eloquence masks deep and unresolved divides.

The President sought to grapple with the related questions of "what war" and "how long."  In terms of the former, the President spent considerable time contextualizing the fight against al Qaeda as part of a broader struggle against terrorism and extremist violence.  This is important.  If the "war on terror" is ever going to end (more on that point below), the U.S. must internalize the reality that terrorist violence comes in many shapes and sizes, and will not cease even if al Qaeda vanished from the Earth tomorrow.  The President here wisely underscored that force alone is insufficient to fight terrorism and that other elements of "soft power" must be employed to win what he described as "a battle of wills and ideas."

President Obama also reiterated that the U.S. is not at war with terrorism but only with al Qaeda and associated forces.  But while this point may bear repeating, it is not new.  The Bush administration took  the same position, its rhetoric of a global war on terror aside.  The real question has always been--and remains today--how expansive this "limited" war is (and it has expanded under Obama), and how long it will last.

Read more »

More on compromise

Sandy Levinson

Two friends made important points about m previous post.  Dennis Thompson, co-author of The Spirit of Compromise, notes that the term "rotten compromise," used by the Israeli philosopher Avashi Margalit in hid book On Compromise and Rotten Compromise, identifies those compromises that are truly evil and basically to be ruled out categorically save for truly exceptional circumstances.  In my own book Framed, when discussing compromises, I distinguish between the compromises on slavery, arguably truly "rotten," and that on the Senate, which was simply truly awful, but not "rotten."  

My friend Akhil Amar has made another point with regard to the compromises on slavery.  The three-fifths clause, for example, was far worse than extending the slave trade until 1808, as awful as that was, precisely because the latter included a time limit--it was "sunsetted--whereas the 3/5 clause, like the fugitive slave clasue, afflicted our politics forever, or at least until destroyed by the slaughter of war. 

So, to return to the capitulation of Senators Leahy, Shumer, and Franken to mean-minded Republican homophobia, how does one classify it?  Is it truly "rotten," which means that one should condemn them?  I have a hard time believing it meets the tests for ultimate "rottenness," though, frankly, I think it comes close.  But it may be a mistake to assess any given compromise in terms of some acontextual metric of awfulness;  it is necessary also to ask about the goodness of what one is getting in return.  That is, one really does have to engage in cost/benefit analysis.  Thus the alliance with Stalin is justified because the good of defeating Hitler, for which the alliance was absolutely necessary, dominated the evils of Stalin.  So it probably is necessary, against my own desire not to, to discuss the merits of the immigration bill.  I.e., is it really so good that it is worth betraying one's principles, or is it only a marginal improvement over the status quo (not least because it makes the necessary path to citizenship far too long)? 

But Akhil's point is also absolutely crucial:  The Democrats are not entrenching Graham's bigotry into the indefinite future.  What they're doing is saying, "well, we don't have the votes now to prevail, but the minute we do, we will vote to welcome same-sex partners to the US on the same terms that we're willing to accept heterosexual partners of US citizens."  So, again, on the scale of compromises, this is far less bad not only than the 3/5 compromise, which required an unattainable constitutional amendment to get rid of, but even the extension of the slave trade until 1808, which entrenched that for 20 long years.  Here, the compromise is "entrenched" only so long as the Republicans have enough votes to be be obstructionists.  Once the immigration act is passed, then there is nothing whatsoever that should prevent the senators in question from offering a free-standing bill and doing whatever it takes to break a filibuster.  This compromise may be a lot like Bush v. Gore, good for this case (or case) only.  That is surely easier to accept than something truly entrenched (though it is important to acknowledge that the costs of the compromise are paid for by others). 

A final point:  I remain truly uncertain why a decision striking down DOMA would automatically mean the end of the prohibition on same-sex partners, even if the decision is based, as it should be, on equal protection.  If it's based on "federalism," then there's simply no reason to believe that the US has a constitutional duty to recognize marital status as defined by a foreign country's law.  (If there were, this would generate a potential problem with regard to polygamous marriages recognized as thoroughly legal in other systems.) 

Wednesday, May 22, 2013

How (and why) rotten compromises are made (and justified?)

Sandy Levinson

The Times reported earlier today on the truly disgraceful decision of Senate Democrats on the House Judiciary Committee to capitulate to Republican homophobia by withdrawing an amendment by Senator Leahy that would have allowed, in the Times's language "United States citizens to apply for permanent resident status, known as a green card, on behalf of their same-sex partners."

Senator Charles E. Schumer, Democrat of New York and an author of the measure, said that not including the provision amounted to “rank discrimination.” But he ultimately concluded, “As much as it pains me, I cannot support this amendment if it will bring down the bill.”
Similarly, Senator Al Franken, Democrat of Minnesota, said: “This is the definition of a Hobson’s choice. In my bones, I believe in equality.”
But [South Carolina Republican Sen. Lindsay Graham, up for re-election in 2014 and desperately afraid that he will be "primaried" by Ted Cruz and his friends] reflected the view of his Republican colleagues when he said: “You’ve got me on immigration. You don’t have me on marriage. If you want to keep me on immigration, let’s stay on immigration.”
Ultimately, Mr. Leahy withheld his amendment “with a heavy heart,” though he can still bring it up on the Senate floor.
Friends, now we should understand why decent people agreed to the 3/5 Clause and why FDR adamantly refused to support a federal anti-lynching bill or, for that matter, was indifferent about the non-extension of the benefits of much of the New Deal to African-Americans in the South.  As Ira Katznelson demonstrates in a brilliant book, Fear Itself, on the Roosevelt and Truman presidencies, FDR needed congressional support for the New Deal, and the only way he could get it from Southern economic liberals (and former Ku Klux Klan members, like Hugo Black) was to promise that it would be, as much as possible, a "whites only" affair.  And, in 1787, the only way to get a Constitution was to capitulate to slaveowners and, for that matter, to the extortionate demands of Delaware and other small states for equal representation in the Senate.  As Madison said with regard to the latter, it was a "less evil" than no Constitution at all, but an evil it remained, and he was absolutely right, as was, obviously, even more the case with the aspects of the Constitution that correctly led William Lloyd Garrison to describe it as a Covenant with Death and an Agreement with Hell.  But, as I myself wrote in the Times during the kerfluffle a couple of months ago about the 3/5 Clause, one sometimes has "to accept some regrettable, even “evil,” means to achieve that end. That’s the way the world works. (Think of the altogether justified alliance with Stalin to defeat Hitler.)" 

But, of course, this is far too facile.  Most of the readers of this blog are not likely to be affected in the least by the withdrawal of the amendment, just as the whites who decided that slavery was "worth it to get the Constitution paid no price--to some extent, of course, Virginia did pay a price for submitting to Delaware's extortion).  And most of those who counseled FDR to accommodate to racism paid little or no price themselves.

One should not gussy up the character of the people with whom mpromises were made in 1787 or in the ;30s.  At worst, Lindsay Graham is simply a bigot; a "best," he is a cowardly opportunist, scared of losting re-election, who after re-election, may "discover" that someone in his family is gay and, like Sen. Portman, suddenly realizes that that person deserves to be treated as a full member of our community. 

Should one be condemnatory of Shumer, Franken, or Leahy, who I assume are genuinely "heavy-hearted" about having to accommodate bigotry?  Is the immigration bill worth selling out one's convictions for (at least until times are more propitious--I presume that FDR would have supported an anti-lynching bill by, say, 1948)?  This is a genuine question.  The answer may well be yes.  The best is often the enemy of the good.  And, let me say, I'm not at all interested in hearing from anyone who is opposed to the immigation bill, not because there's nothing that can be said against it, but becaues that's not really my topic.   Perhaps another way of defining the topic is why should Democrats capitulate to an uncompromising bigot like Lindsay Graham and the faction of the Republican Party for which he speaks?  Is it a good enough response to say that without getting their votes, there is no immigration bill, and one properly pays the "necessary" price to get the greater good (even if those actually bearing the cost are fellow American citizens who happen to be involved in same-sex relationships)?

UPDATE:  This just in from Gail Collins's column in the Thursday, May 23, Times:

The most painful low point in the committee’s deliberations came at the end, when the Democrats gave up on an amendment allowing same-sex spouses the same right as heterosexuals to apply for permanent resident status for their partners. It’s not every day when you hear a senator announce that he had decided to support a move that involved “rank discrimination.” But the Republicans who were needed to get an immigration bill through the Senate had made it supremely clear that if any hint of gay marriage entered the legislation, they were going to take their toys and go home.
Decide for yourself how you feel about this one, people. Stand up for equality or finally get a major bill through the Senate? Defend equality or cave in and hope that the Supreme Court bails you out when it rules on the Defense of Marriage Act next month?

She makes a very good point.  Presumably, if the Court does strike down 'DOMA, as most people seem to think it will--and if it does it, as it should, on equal protection rather than "federalism" grounds--then that might mean that such a bigoted provision of the revised law, assuming it passses, would be unconstitutional.  I say might because existing doctrine is that the US, as a "sovereign power," has plenary (unfettered) discretion to determine who comes in to the country. 

Thursday, May 16, 2013

"Declare Victory and Get Out?" The Future of the AUMF

Stephen Griffin

Today the Senate Armed Services Committee is conducting a hearing into the future of the September 2001 AUMF.  Over at the informative Lawfare blog, the two options on offer are to replace it with an authorization tailored to the new circumstances of a dispersed war against many different terrorist groups or, in the words of Steve Vladeck and Jennifer Daskal in yesterday's NYT, to "declare peace" and get out.  In a world in which we did not have to contend with political parties, I would favor the latter option.  What my book Long Wars and the Constitution calls the "9/11 War" against al-Qaeda and the Taliban is overdue for a breathing space in which we can assess it from a distance.  Presidents Bush and Obama certainly haven't helped -- try to recall a fundamental policy statement in which either president set forth meaningful criteria for success or failure.  It's as if the presidents don't want the war to end.  Why might that be?  In Long Wars, I reject answers based on eighteenth-century theories about presidential motivation.  In other words, it's not because they are power-hungry or want to expand the so-called "imperial presidency."

My title is a reference to Vietnam.  There may have been a moment during that war when key elements in both parties could have supported leaving South Vietnam, even knowing that this may have eventually guaranteed victory by the North.  In addition, there is plenty of evidence we are now in a sort of post-Vietnam moment in which a war-weary public and substantial elements in both parties are questioning the purpose and costs of a permanent war against a now ill-defined terrorist threat.  Hence declaring victory or peace or both is more realistic than many in the DC village might concede.

Yet the logic of the argument I present in Long Wars urges caution, since we still must contend with polarized political parties.  This means concretely that President Obama knows he will be blamed for any future terrorist attack, when it succeeds or fails.  That means to create the kind of breathing space we need, members of Congress would have to agree to, yes, blame themselves as much as the president in the case of a future terrorist strike.  Or move beyond the politics of blame.  Is this beyond them?  If you think so, this counsels either reworking the AUMF along the lines suggested by Professors Chesney, Goldsmith and Waxman or at least staying with the current AUMF and admitting we want the president to do everything he can to protect us.  If you (and I'm really talking to Congress here) can bring yourself to trust that the government is doing everything it can to prevent another terrorist strike and hence not go looking for someone to blame when it happens, we can all create a breathing space for peace together.  If, however, you want to retain the option to blame the president and the executive branch, then you will have to give them the power to prevent those attacks.  The best way to do this is openly and democratically.  But if you can't bring yourself to do this, the president will remain in the same position, responsible for now covertly preventing an attack in a way that may result in a constitutional crisis in the future.  That's the dilemma past presidents have faced, given the dysfunctional structure of what I call the post-1945 constitutional order.


Wednesday, May 15, 2013

David Ignatius can't connect the dots, either

Sandy Levinson

David Ignatius is simply the latest leading pundit who demonstrates an incapaity to connect the dots relevant to his own analysis.  In a column in the May 16 Washington Post, he says many altogether correct things.  Writing of the current scandals, he says, "What should frighten the public is not the federal government’s monstrous power but its impotence....."  The only thing that Congress can do is engage in highly partisan "investigations" most of which simply can't be taken seriously (such as the sudden emergence by non-libertarian Republicans as stalwart defenders of the press after earlier behaving like mad dogs with regard to "security leaks" and demanding that no stones be left unturned in efforts to catch leakers."  No doubt there is some criminal stupidity worth investigating vis-a-vis the IRS, but equally worth investigating, of course, iw the ability of big money to game the IRS system by corrupting our political system and getting tax exemption for doing it.  No doubt the response of the cowed IRS will be shutting down any serious investigation of 501(c)4) groups at all, so that the American taxpayer can in effect subsdizaie our own further descent into plutocracy. 

What Congress cannot do, in any serious sense, is to legislate about the problems that face us.  There are, lf course, many explanations, but surely a part of the explanation must be our 18th-century Constitution drafted by people who had literally no comprehension of what the American political process would fairly quickly become and foisted on us a byzantine system of "checks and balances" that allow well-located veto groups to make a sham of our pretense to being a "democracy" or, more seriously, to be able to confront the most serious problems that face us.  It's so much easier for peoplel like Mr. Ignatius to complain that there's too much bickering in Washington and that we need more "adults" who can take charge.  I see no reason to open this to comments since, as should be obvious, I'm clearly not making anything resembling a new point, but simply venting, once more, at the remarakble blinkers that even our best pundits (as Mr. Ignatius often is) seem to wear whenever they write about the dysfunctionalities plaguing the American political system.

UPDATE:  The lead story in today's NYTimes is "An Onset of Woes Raises Questions on Obama Vision," by Peter Baker.  Its theme is his inabilty to "master his own presidency," though there is one glimpse of recognition that he may be  confronted "by partisanship and forces beyhond his control."  It never occurs to Mr. Baker (or, for that matter, any of the NYTimes' political reporters) that one of those "forces" is the Constitution itself.  And President Obama, as a well-trained Harvard lawyer, was, one suspects, never asked to question any of the structural features of the Constitution even as he got probably the best legal education available on how to analyze cases decided by the United States Supreme Court.  I've compared myself on earlier occasions to Paul Revere or Cassandra.  Perhaps a better comparison is Noah--don't you see the rainclouds accumulating?--but, alas, I can't build an ark because the problems facing us have to confronted collectively--rugged individualism is useless, unless you're a bitter-end survivalist who looks forward to nuts and berries--or not at all.  A truly cogent "vision" would be altogether too scary, so better to pretend that the failings are Presidential detachment or Republican perfidy (both of which may well be part of the problem, to be sure) instead of anything more basic.

Meaningless Arithmetic

Mark Tushnet

At today's press briefing by Jay Carney at the White House, one reporter stated, in a tone suggesting that he was making an important point, that "This administration has prosecuted twice as many leak cases as all previous presidents combined." (That's the version of the statement that I could find in quick search, but I don't vouch for its word-for-word accuracy.) Carney responded that some of the prosecutions were the culmination of investigations begun before the current administration took office, which could be true, for all I know.

The more important point is that the statistic is completely meaningless no matter what. After all, the premise is that prior administrations were conducting the "right" number of prosecutions. But, maybe they were failing to prosecute enough cases.

Sunday, May 12, 2013

Northwestern Symposium on Martin Redish

Andrew Koppelman

My Northwestern Law colleague and friend Martin Redish has been hugely influential in the free speech area.  His work has been cited by the Supreme Court a number of times, and he is probably more influential than any other scholar in transforming the Court’s approach to commercial speech and campaign finance.

The Northwestern Law Review has just published a festschrift on his work, celebrating forty years on our faculty.  It includes contributions by James Pfander, Richard Freer, Richard Marcus, Linda Mullenix, Jay Tidmarsh, Larry Alexander, Corey Brettschneider, myself, Eugene Volokh, Andrea Matwyshyn, Richard Fallon, William Marshall, Howard Wasserman, Matthew Arnould, Andrew Gavil and Christopher Yoo.

Marty and I have longstanding disagreements about free speech theory, which we worked on during a seminar we co-taught a couple of years ago.  During that semester, I wrote a paper which became my contribution to the festschrift, and which will probably end up being part of a book on free speech theory and obscenity law (so comments are very welcome).  The article is called “Veil of Ignorance: Tunnel Constructivism in Free Speech Theory.  Here is the abstract:

Modern free speech theory is dominated, in the courts and the academy alike, by a style of reasoning that posits a few axiomatic purposes of speech and from these deduces detailed rules of law.  This way of thinking can make the law blind to the actual consequences of legal rules, and damage both individual liberty and democracy.  I develop this claim through a critique of the work of Martin Redish, who has developed the most sustained and sophisticated constructivist theory of free speech.

Free speech constructivism is not the only way to understand the First Amendment. It is a fairly recent development, emerging only in the 1970s.  The idea of free speech, on the other hand, dates back to Milton’s arguments in the 1640s.  This article identifies the pathologies of constructivism, and recovers an older and more attractive free speech tradition.


Friday, May 10, 2013

3D Printers and Guns

Gerard N. Magliocca

The State Department's order (or "request") to takedown software that would let people print guns on a 3D printer raises some fascinating issues.  The Government wants to see whether making this software available violates certain arms export statutes, in part because 100% plastic guns would be very hard for airport security to detect.

At the outset, this strikes me as a futile gesture.  100,000 downloads occurred before the takedown was ordered.  Foreign websites such as Pirate Bay have the files and are making them available.  The horse isn't just out of the barn--it's left the farm.  Moreover, I'm not sure what the legal basis for this order (or "request)" is.  Is it clear that the possession or manufacture of a plastic gun is unlawful?  Legislation has been introduced in Congress to ban 3D printed guns, which suggests that currently they are not banned.  If it is legal to own one, then why it is illegal to tell others how to produce their own?

Moreover, there could be a Second Amendment question lurking here.  Suppose I have a disability that makes shooting a gun difficult.  Still, I want one to protect my home.  3D printing would (in theory) let me design a gun that is customized such that I could fire it.  Do I have a fundamental right to do that? Would a total ban on 3D printed guns place an unreasonable restriction on me?


Thursday, May 09, 2013

The CIA and Drone Strikes

Stephen Griffin

One of the main themes of my forthcoming book Long Wars and the Constitution is that we can gain insight into the unconventional and seemingly novel “war on terror” by looking closely at the history of the cold war.  This approach is especially helpful now in assessing the charges being leveled against the CIA because of the ongoing drone war being carried out in multiple countries under the auspices of the September 2001 AUMF.  It is doubtful anyone is entirely happy with the results of the drone war and the civilian casualties that are its foreseeable consequences.  But the drone war illustrates several things at once about the relationship between the “9/11 War” (my preferred term for the “war on terror”) and the cold war.

Consider what the cold war teaches us about the role of the CIA.  It has to be one of the most mythologized and misunderstood agencies in the American government.  From the very beginning, the CIA conducted clandestine or covert operations abroad, including paramilitary operations.  As recounted in Long Wars, despite persistent claims that it was never authorized to do so, the relevant volumes of the Foreign Relations of the U.S. series show that Congress and the executive branch intended and authorized the Agency to have such a capability.  Some may believe the Agency left this path after the 1975 intelligence investigations and President Ford’s famous ban on assassinations.  In fact, however, the role of the CIA became a key contested point in the cold war of the late 1970s.  Conservatives, including Ronald Reagan and George H.W. Bush, promoted a narrative in which the investigations had harmed national security.  Once Reagan was elected, conservatives were intent on unleashing the CIA against what they saw as the persistent communist threat, especially in Central America.  That’s exactly what happened in the 1980s.
Read more »

Wednesday, May 08, 2013

How “Robust” is Appellate Review of Courts-Martial?

Eugene R. Fidell


HOW “ROBUST” IS APPELLATE REVIEW OF COURTS-MARTIAL?

Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan,
Stephen A. Saltzburg, Kate Stith and Judith Resnik*

   Secretary of Defense Hagel’s March 7, 2013 letter to Senator Boxer advised that he had ordered a review to determine whether the requirements of the Uniform Code of Military Justice were followed in connection with the widely-noted Convening Authority (CA) action under Article 60 in United States v. Wilkerson and whether that case suggests a need for changes in either the UCMJ or the services’ implementation of it. He noted that “this case does raise a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial, particularly prior to the robust appellate process made available by the UCMJ” (emphasis added). On April 8, 2013 he recommended that Congress modify Article 60.

Congress will decide whether the CA’s powers should be reduced or reallocated, but it should do so only with a correct understanding of the appellate process, since changes are needed there as well. The critical point is that the current process is not “robust.”

First, for a court-martial to qualify for review by a service Court of Criminal Appeals (CCA) under Article 66, the sentence as approved by the CA must include the death penalty, confinement for a year or more, or a punitive discharge (i.e., dismissal for officers and service academy cadets and midshipmen, bad-conduct or dishonorable discharge for enlisted personnel). Because of the jurisdictional threshold, many special and general courts-martial are not subject to review by the military appellate courts. Instead, the only available direct review is within the office of the Judge Advocate General under Article 69. That review is conducted without judges, appellate counsel, full briefing or oral argument.

A few numbers demonstrate the limits. In Fiscal Year 2012, 368 (21.3%) of the 1727 special and general courts-martial received by the TJAGs were eligible only for the internal administrative review. A handful of these Article 69 cases may have been referred to the CCAs as a matter of JAG discretion but, once there, they are subject to narrower review than Article 66 cases. Compare Article 66(c) (power to weigh evidence, judge credibility of witnesses, and determine controverted questions of fact) with Article 69(e) (CCA may take action “only with respect to matters of law”).

Do not suppose that courts-martial that don’t meet the jurisdictional threshold for CCA review are unimportant. Many can have significant effects on the accused, including lifelong stigmatization as a federal offender and, in some cases, sex offender registration, loss of the right to possess firearms, deportation, and other collateral consequences.

Second, neither the Constitution nor the UCMJ affords CCA judges the protection of fixed terms of office (much less the life tenure enjoyed by Article III judges). See Weiss v. United States, 510 U.S. 163 (1994). By regulation, Army and Coast Guard CCA judges have three-year terms; those on the Navy-Marine Corps and Air Force CCAs remain without fixed terms of any duration. At-will appellate judges such as these are unheard of in any other part of the American legal system.

Third, cases that come within CCA jurisdiction often meet with significant, and in some instances, extreme delays. A recent case took the Air Force CCA 1024 days from docketing to decision.

Fourth, CCA decisions are in turn reviewable by the United States Court of Appeals for the Armed Forces (CAAF). Under Article 67(c), CAAF may “take action only with respect to matters of law” and does not review sentences for reasonableness. It automatically reviews the few military capital cases, and in noncapital cases grants discretionary review “on good cause shown.” The JAGs, however, need not show good cause to obtain CAAF review: Article 67(a)(2) gives them the power simply to refer (or certify) a case to CAAF. In Fiscal Year 2012 eight cases were certified. Since the JAGs rarely certify cases for the benefit of the accused, this aspect of the UCMJ appellate process is asymmetric.

Fifth, only a limited subset of the cases that reach CAAF ever become eligible for review by the Supreme Court of the United States. Under 28 U.S.C. § 1259, certiorari is available to review CAAF’s capital cases, those certified by a JAG, those in which CAAF grants discretionary review, and others – brought by extraordinary writ -- in which it grants relief. Article 67a(a) adds that the Supreme Court “may not review by writ of certiorari under this section any action of [CAAF] in refusing to grant a petition for review.” Thus, except for the rare capital cases and the handful certified by the TJAGs, a party can petition for certiorari only if CAAF has in its discretion granted review or an extraordinary writ. In Fiscal Year 2012, CAAF granted 202 petitions for review and two petitions for extraordinary writ or writ-appeal petitions and denied 616 petitions and 27 writs, rendering 76% of the total statutorily ineligible for Supreme Court review.

Sixth, the cumulative result of the jurisdictional threshold for CCA review and CAAF’s ability to bar the door to Supreme Court review is that roughly 90% of special and general courts-martial never become eligible for Supreme Court review. In contrast, all federal and state defendants and even persons convicted by military commission have a right to petition the Supreme Court for review of their cases.

Seventh, in the minority of CAAF cases that are eligible for Supreme Court review, the Solicitor General takes the position (despite contrary legislative history) that the Supreme Court may only decide “issues” as to which CAAF has granted review. On this view, an ungranted issue in a granted case remains outside the Supreme Court’s jurisdiction. The Supreme Court has repeatedly declined to address this question, having never granted certiorari on an ungranted issue.

Finally, the military judicial process does not include a statutory post-conviction fact-finding mechanism like that provided for civilian federal criminal cases in 28 U.S.C. § 2255. Instead, it relies on the so-called DuBay hearing, a judicially-manufactured substitute that seeks to compensate for process failures in the existing system, which lacks a standing trial court. These limited evidentiary hearings are ordered when, for example, a claim of ineffective assistance of counsel arises. Although they avoid “the unsatisfactory alternative of settling [an] issue on the basis of ex parte affidavits, amidst a barrage of claims and counterclaims,” United States v. DuBay, 37 C.M.R. 411, 413 (1967), they remain a makeshift appendage to the military appellate process.

Appellate review under the UCMJ is not “robust.”
 _____

* Eugene R. Fidell, Judith Resnik, and Kate Stith teach at Yale Law School. Elizabeth L. Hillman teaches at Hastings College of the Law. Stephen A. Saltzburg teaches at George Washington University Law School. Dwight H. Sullivan is a civilian counsel at the Air Force Appellate Defense Division. The views expressed here are his personal opinions and do not reflect those of the Department of Defense or any of its components.

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Monday, May 06, 2013

John Bingham and Racial Preferences

Gerard N. Magliocca

With the Court's decisions on racial preferences and on the Voting Rights Act looming, I was mulling over something that I found in a letter that John Bingham wrote in 1877.  When the briefs were being written in the University of Texas case, I was asked by some attorneys whether Bingham said anything about the subject that they could use.  I said no.  Upon reflection, though, I suppose he he did say one thing that was interesting.

The letter was written to President Rutherford B. Hayes while Bingham was serving as the American Ambassador to Japan.  Bingham was commenting on the charge that Hayes was selling out the freed slaves by withdrawing Union troops from the South (or, more accurately, to their barracks) following the resolution of the disputed presidential election of 1876.  Here is what he said:


"Surely you have surrendered no right nor have you done any wrong in seeking by peaceful means to restore the unity of the Republic, the supremacy of the Constitution and "the equal protection of the laws" to all the people of every State and especially to the enfranchised colored people, who are the wards of the nation.  There is nothing in all that you've said or done so far as I am advised which gives color of excuse for the charge made against you, that you have betrayed or that you intend to betray, the colored citizens of the Union, and leave them naked to their enemies."


I've added the underline to this quote.  Why?  Because a strong argument can be made that "wards of the nation" does not equal "color blind."  Is this enough proof to show that Bingham supported racial preferences or rejected a color blind interpretation of the Fourteenth Amendment?  No.  It's one line in a private letter written ten years after he wrote the Equal Protection Clause.  But it is food for thought.

Friday, May 03, 2013

Announcing Long Wars and the Constitution

Stephen Griffin


Books seem to be busting out all over Balkinization and I certainly recommend the ones listed on the right of your screen.  My purpose in writing this and perhaps another post is to highlight the imminent publication (May 13, according to Harvard UP and Amazon) of my Long Wars and the Constitution, a full-scale analysis and history of presidential war power since 1945, the first such analysis to appear in many years.  Although I have something to say about what happened prior to World War II, especially with respect to the eighteenth century, in understanding the situation we face in contemporary times, I think it is most critical to reach an understanding of what happened in the Cold War, our last “long” war.
Books on war powers face some challenges.  In my experience, the general debate over war powers since Vietnam is fairly salient.  I can’t count the number of times non-lawyers as well as well-informed law professors have asked me, for example, “Whatever happened to declarations of war?”  War powers is a freighted subject and people understandably tend to have strong opinions.

So let me describe the approach of the book by drawing some contrasts with arguments and positions you may be familiar with.  For instance, although I argue there is little doubt contemporary presidents have departed from the historical meaning of the Constitution, I do not think there is a way to return to the practices that prevailed in the early republic.  So whatever problems we may have, there is no meaningful eighteenth century fix, any more than we could recreate an eighteenth century military.  I do not mean to say that there are no solutions.  Rather, there are no solutions that anyone in the eighteenth century would find familiar.
I also reject what might be called the “presumption of equal relevance” – the idea that each use of presidential war power, especially in the nineteenth century, is equally relevant to the circumstances we face today.  I largely agree with the “1950 thesis” that Truman’s commitment of troops to Korea without authorization from Congress marked a sharp break in our constitutional tradition.  But the crucial point is not so much the power Truman asserted but rather that he had new state capacities and resources available to him (and all post-World War II presidents) that were not available to prior presidents.  The critical variable of state capacity has been mostly ignored in previous studies of presidential war powers.  Once we take it into account, it will alter our perspective and understanding of the use of war powers since 1945. 

Presidents have often been taken to task for their exercise of war powers and their stance has been described as “imperial.”  To some extent, I argue that the situation is actually worse than it has been perceived, especially by legal scholars (and especially by those who have served in the executive branch).  In saying this, it is important to understand that while I review all significant executive branch war powers opinions since 1950, to understand presidential power we have to concentrate first and foremost on the actions and perspective of presidents, not their able lawyers.  At the same time, I urge a bit more sympathy for presidents than has usually been on display in the war powers debate.  From a presidential point of view, they have not so much been exercising “war powers” as advancing the foreign policy and defending the national security of the United States.  Presidents have had many reasons for thinking this is exactly what the public and the other branches of government expect them to do.  But presidents have advanced foreign policy in a context in which they have the military capacity to intervene almost anywhere in the world on a round the clock basis.  Assessments of the threats facing the U.S. combined with this capacity have led presidents to believe they have much broader war powers than legal scholars typically assume.  I thus maintain that presidential claims of power should be inferred from their foreign policy and national security goals rather than from occasional lawyerly statements.
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Why Everyone Should Read Jack Goldsmith, "The Trust Destroyer"

Sandy Levinson

Another must-read piece, also, like Steve Coll's New Yorker essay, a review of Mark Mazzetti's The Way of the Knife:  The CIA, a Secret Army, and a War at the Ends of the Earth, is Jack Goldsmith's "The Trust Destroyer," in the current New Republic.  Goldsmith (a friend and sometime colleague at the Harvard Law School) is usually thought of as being on the more conservative side of the spectrum from Coll, but their take on the book, and on the deficiencies of the Obama presidency--again, this is relevant to Mary Dudziak's critique--is remarkably similar.  The Administration is obsessed with secrecy and fundamentally unwilling to work with Congress (perhaps understandably, in terms of contemporary partisan politics), and the cost is (justified) erosion of trust in the presidential apparatus, including Obama himself.  Should we have a genuinely public debate about what forms new congressional legislation might take with regard to regulation of drones and the use of special forces in countries with which we are not at war, I'm not positive how I'd come out, but I agree with both Goldsmith and Coll that the quality of our democracy is being eroded by the coy nature of such debate as occurs, where an Administration official makes a speech, at Oxford, Harvard, or wherever, or the President says something cryptic at a news conference, or, most notoriously, someone leaks the "White Paper" without, however, publicly addressing what many of us view as its near-bizarre notion of "imminence" with regard to justifying assassination. [UPDATE:  A major theme of Steve Griffin's fine new book, which I happily blurbed, is that we have never truly thought through the legal doctrines required to justify what has become basically common practice since Truman's intervention in Korea.  Steve emphasizes not only the changing nature of the challenges facing the US and its presidents, but also, crucially, the remarkably enhanced capabilities that presidents have in their capacity as "commanders-in-chief."  In addition to weaponry that even Truman, who "dropped the Bomb," could not have envisioned, there is also the creation of "special operating forces" and the parallel airforce now apparently under the control of the CIA.

With regard to the White Paper's relianceon "imminence" as a justification for targetted assassination, I think it'w worth noting that the ABA rules of professional conduct, which in many states permit lawyers to disclose confidences when "imminent" danger is presented by a client, are interpreted far more restrictively.  That's not meant to be a knock-down argument.  Back in the days when I taught professional responsibilty, I suggested that a corporate attorney who realized that his clients were violating certain environmental laws and therefore posed a danger to people, even if not "imminently," should still feel at least a permission, and perhaps even a duty, to disclose.  Consider the West, Texas explosion in this regard, where the company storing ammonium nitrate seems, on the face of it, to have engaged in flagrantly negligent, if not outright criminal, misconduct.  This simply illustrates the potential value of a genuine public debate about the meaning of "imminence" and whether we are/should be willing to apply the same definitions to fat-cat lawyers for banks or chemical companies and to suspected terrorists. 

Erie Railroad v. Tompkins and the New Deal Constitution

JB

Last week Richard Epstein and I were on a panel at AEI on the New Deal Constitution, commemorating the 75th anniversary of the decisions in Erie Railroad v. Tompkins and United States v. Carolene Products.  The video is available here.  Michael Greve kicks it off with a fifteen minute introduction to the two cases; Richard's talk begins about 14:30, and my talk begins about 24:55.  I discussed both Erie and Carolene Products in my talk; in this blog post, I will say a few words about Erie.

Erie is often associated with the New Deal, because it resulted in a kind of federal judicial restraint.  Henceforth, federal courts had to defer to state common law decisions in diversity cases. Nevertheless, in my talk, I pointed out that Erie's connection to New Deal ideas was quite contingent.  If Erie had been decided in 1948, after Darby and Wickard, rather than in 1938, the course of history might have looked very different.  It might not have seemed all that important to overrule Swift v. Tyson, and Erie might have come out the other way.

Justice Brandeis objected to federal common law in part because federal judges could make regulatory decisions through federal common law that Congress itself could not make through its enumerated powers.  But that would no longer have been true after Darby and Wickard. Between 1942 and 1995, it was generally assumed that Congress's regulatory powers were plenary.  And even after 1995, it is still generally thought that Congress has wide-ranging powers to regulate economic activity, which might encompass large swaths of tort, contract, and property law.

Another motivation for the decision in Erie was that New Deal liberals (and some of the Justices) did not like the conservative and anti-labor features of federal common law in 1938. But the Wagner Act and a host of later federal statutes and regulations would have eventually preempted many of these federal common law decisions.

Perhaps equally important, federal statutes and regulations also preempted many of the state common law rules that Erie assumed would control in diversity cases-- including the common law rules at issue in Erie itself, which concerned railroad safety. So the long term result of the New Deal was that many of the issues that Erie assumed would be handled by state common law were ultimately controlled by federal courts construing federal statutes and regulations.  (See Sam Issacharoff's recent paper on SSRN on this point.)

Not only was Erie not particularly necessary to the New Deal Revolution, but the case it overruled, Swift v. Tyson, could fairly easily have been adapted to the regulatory purposes of the New Deal.  If the Court had retained the rule of Swift v. Tyson, federal common law would not have stayed conservative for long. It would probably have changed with new judicial appointments. The federal courts and the Supreme Court, staffed by New Deal liberals, would have gradually created a federal common law of tort and contract that would have harmonized with New Deal values.  For example, liberal federal judges like Black, Douglas, Brennan, and Marshall would probably have created a liberal version of federal common law in areas like products liability, just as liberal judges on the state supreme courts did.

In this alternative scenario, conservatives in Congress might have responded to liberal federal common law decisions with federal tort reform statutes and conservative judicial appointments designed to limit or overturn these decisions. Both the liberal innovations and the conservative responses would have have further nationalized tort law. Because of Erie, however, tort reform occurred state by state and conservatives on the federal courts were mostly limited to procedural reforms like limiting federal class actions.  Whether you think this is a good thing or a bad thing, the point is that deciding Erie in 1938 had path-dependent effects that shaped how modern tort law developed.  Today tort law is taught in first-year courses as a state common law subject. But without Erie, it might increasingly have been viewed as a course about federal law and more closely integrated with federal statutory and administrative regulation.

Finally, it's worth noting that the debate over federal common law in Erie presents a very different set of problems than we face in debates over federal common law today-- for example, in debates over whether customary international law is federal common law.  The federal common law of Swift v. Tyson was non-exclusive.  Under the rule of Swift v. Tyson, both the federal courts and the state courts could have their own common law rules of tort and contract.  But the federal common law that people fight about today normally displaces state law to the contrary.



Thursday, May 02, 2013

Must We Be Faithful to Original Meaning?

JB

I've posted my latest article, "Must We Be Faithful to Original Meaning?" on SSRN. The essay came out of a May 2012 conference on Living Originalism held at Hebrew University in Jerusalem. It expands on some of the arguments I made in the book for my version of original meaning originalism. The essay closes by discussing a few analogies between different versions of originalism in American legal theory and different theories of Biblical and Talmudic interpretation in Jewish law. Here is the abstract:

* * * * *


This essay responds to essays written for a symposium on Living Originalism that will appear in the Jerusalem Review of Legal Studies. It expands and develops the book's argument for fidelity to original meaning.

First, the essay explains why interpretive fidelity requires, at a minimum, fidelity to the basic framework -- the Constitution's original semantic meaning and the Constitution’s choice of rules, standards, and principles. This is a hypothetical imperative, not a categorical one. If Americans want to follow the plan of their Constitution, this is the least that fidelity requires. But they need not continue to do so. As they did with the Articles of Confederation, Americans could reject their present Constitution through a new act of constituent power. The argument assumes, however, that Americans are not deluded or disingenuous in asserting that they continue to accept their Constitution as amended.

Second, the article argues for a "thin" theory of original meaning that both leaves room for and necessitates constitutional construction by subsequent generations. To be sure, framework originalism makes use of background context to infer some aspects of original meaning that are not explicitly stated by the text, but it limits these inferences to those necessary to make sense of the basic framework and its economy of delegation and constraint.

A "thin" account of original meaning makes the best sense of Americans' actual practices of constitutional development. It is also the most consistent with the democratic legitimacy of an ancient constitution over time. A theory of original meaning that is too thick will increasingly undermine democratic legitimacy as time goes on. It will fail to make use of the institutional capacities of later generations to adapt government to technological, social and economic change. The problems of the increasing democratic deficit of originalism over time and of the limited institutional capacities of adopters are best solved by a thin theory of original meaning, which leaves ample room for constitutional construction.

The essay concludes by comparing different theories of originalism -- including Living Originalism -- with different theories of Jewish law that explain or justify disagreement or change over time. An important difference must be noted at the outset: According to Jewish tradition, the Torah is the word of God, and therefore cannot be mistaken, while a political constitution is the work of fallible human beings.

Nevertheless, the different rabbinic solutions to (or explanations of) disagreement and change in the Talmud correspond to different positions in American constitutional scholarship. The argument of Living Originalism, it turns out, is closest to the position of Rabbi Moshe Shmuel Glasner (the Dor Revi'i), who argued that while the Written Law does not change, the Oral Law must be dynamic in order to "not to tie the hands of the sages of every generation from interpreting Scripture according to their understanding."

The Left's Failure and the Mismatch Effect

Jason Mazzone

Brian Tamanaha's essay, "The Failure of Crits and Leftist Law Professors to Defend Progressive Causes" is characteristically provocative. Here is one especially interesting nugget from Brian's essay:

Black and Hispanic graduates, moreover, appear especially burdened by law school debt. Ninety-five percent of African American graduates take on debt for their legal education, substantially above the percentage of white graduates who do so (81%). A study of graduates from the class of 2000 found that a much smaller percentage of black (4.5%) and Hispanic (6%) law students graduated from law school debt-free than did whites (17.3%) and Asians (19.9%). The median debt of blacks ($72,000) and Hispanics ($73,000) was higher than that of whites ($70,000) and Asians ($60,000). Half a dozen years out, fewer blacks (17%) and Hispanics (28.9%) had paid off their student debt as compared to whites (37%) and Asians (46.8%).
I immediately wondered how the above claim relates to Richard Sander's account of mismatch in legal education: the phenomenon that (as Sander presents it) race-based affirmative action ends up placing Black and Hispanic students in law schools where they perform worse academically than they would if they attended (in a race-blind system) less competitive schools, with negative career outcomes as a result. Sander doesn't say much about debt in his article, except for the following:

Anecdotal evidence suggests that many law schools try to minimize the size of their internal black-white gap by competing vigorously for black candidates, both by “wining and dining” strong prospects and by offering those prospects generous financial aid. More systematic data from the AJD study shows that blacks in the 2000 cohort of graduates received about three times as much in grants and aid from their law schools as did students of other races. It is reasonable to suppose that in a race-blind system, race-based financial aid would decline (though I would argue that recruiting more blacks into the system as a whole remains a valid and important goal). It is certainly possible that a decline in aid for blacks, if it occurs, could discourage some black applicants. On the other hand, Hispanic law students currently receive far less scholarship aid than blacks (even though Hispanic law students tend to come from less affluent backgrounds) but apply to law school in very similar proportions to their numbers among college graduates.
How do we reconcile Tamanaha and Sander to figure out exactly what the impact of "mismatch" is on the debt load of minority (here, meaning Black and Hispanic) law school graduates? I would have thought that if law school scholarships are heavily based on merit rather than need, a minority applicant would end up with a larger tuition break--and better odds of paying off any loans--by attending Average Law School rather than Elite Law School. Thus, affirmative action would drive up debt. On the other hand, if, as Sander suggests, Elite Law School is willing to pay a very high premium for a minority candidate, affirmative action should reduce the debt incurred by minority graduates. Perhaps we need information about the distribution of debt figures (rather than simple averages) -- but do readers have thoughts on the financial impact of affirmative action?      



Wednesday, May 01, 2013

Why everyone should read Steve Coll's review in the New Yorker: A point on Mary's side

Sandy Levinson

Anyone interested in the more ominous side of the Obama presidency, where it is reasonable, as Mary Dudziak has recently suggested, to focus more on the contingency of who is President than on the deep structures established by the Constitution, should read Steve Coll's review in the current (May 6) New Yorker of two recent books on the rise of targetted assassinations (and much else) by Mark Marzetti (The Way of the Knife) and Jeremy Scahill (Dirty Wars).  The single most depressing line is a (purported) quote of the President made during a Situation Room meeting in which a member of the Joint Chiefs of Staff questioned the rise of a parallel airforce controlled by the CIA:  According to Marzetti, Obama said, "The C.I.A. gets what it wants."  (One assumes that this was a performative utterance, expressing Obama's own preferences, rather than a merely descriptive statement made by a man lamenting that he did not have the power, as President of the United States, to prevent the CIA getting "what it wants.")  Were this a statement of George W. Bush, I presume that many people would be up in arms (so to speak).  Coll suggests that the message of the two books, and much contemporary journalism, is that the Obama Administration, far more than its predecessor Bush Administration, has adopted a policy of  cold-blooded assassination without any public disclosure, save for the "White Paper," of even the general criteria, let alone the specifics, that have resulted in de-facto capital punishment for an undisclosed, by obviously non-trivial, number of America's enemies.  (At one point, the CIA claimed, preposterously, that there was no collateral damage in the drone attacks, that everyone attacked was in fact an enemy, a position similar to that taken in Vietnam during Operation Phoenix.)  The Obama Administration's position is ultimately "Trust Us" (and accept the fact that we're leaving a legacy of remarkably unconstrained powers, at least in conventional terms where we look to courts, Congress, or an informed press to supply some constraints). 

Coll ends his review with a discussion of the remarkable documentary The Gatekeepers, in which five former directors of the Israeli Shin Bet, certainly no shrinking violets when it comes to conducting wars on terror, all express their reservations about Israeli policy.  One hopes that Obama has seen the movie and has genuinely wrestled with its arguments.  If he hasn't, then that would even more justify the criticism directed at him by Mary, since, obviously, even I cannot possibly blame the Constitution should that be the case.  If he has seen the movie, then I would like him to assess it in his next news conference. 

Like Mark Tushnet, I find myself genuinely ambivalent about drone attacks.  I suspect that they are often less destructive of human life than conventional warfare.  But the Obama Administration simply has not encouraged or, more to the point, participated in the kind of systematic discussion that we need, as an ostensibly free people, before so enthusiastically adopting this new model of warfare.  I happened to listen to an NPR segment driving home about the history of the ban on chemical weapons.  From a coldly ratioonalist point of view, it is not clear why use of chemical weapons is so much worse than other weapons designed to kill and maim people.  But there does appear to be a strong international convention against their use, and we may find ourselves (unwisely, I think) intervening in Syria because that almost mystical "red line" has seemingly been crossed.  How, at the end of the day, do we decide what is acceptable and unacceptable as means of killing, maiming, and otherwise destroying the lives of people?  Cf. the Boston Marathon event, which certainly killed and maimed using very primitive weaponry indeed. 

The Health Care Case -- The Book!

Nate Persily

Oxford Press has just published The Health Care Case: The Supreme Court's Decision and Its Implications, which I edited along with Gillian Metzger and Trevor Morrison.  Many Balkinization bloggers have contributed chapters.  The Table of Contents appears below:



Introduction
Nathaniel Persily, Gillian E. Metzger, and Trevor W. Morrison
Part I             Reflections on the Supreme Court’s Decision
1          The Court Affirms the Social Contract
            Jack M. Balkin
2          Who Won the Obamacare Case?
            Randy E. Barnett
3          A Most Improbable 1787 Constitution: A (Mostly) Originalist Critique of the Constitutionality of the ACA
            Richard A. Epstein
4          The June Surprises: Balls, Strikes, and the Fog of War
            Charles Fried
5          Much Ado: The Potential Impact of the Supreme Court Decision Upholding the Affordable Care Act
            Robert N. Weiner
6          The Missing Due Process Argument
            Jamal Greene
7          “Necessary,” “Proper,” and Health Care Reform
            Andrew Koppelman
8          The Presumption of Constitutionality and the Individual Mandate
            Gillian E. Metzger and Trevor W. Morrison
9          The Individual Mandate and the Proper Meaning of “Proper”
            Ilya Somin
Part III          The Important Role of the Chief Justice
10        Judicial Minimalism, the Mandate, and Mr. Roberts
            Jonathan H. Adler
11        Is It the Roberts Court?
            Linda Greenhouse
12        More Law Than Politics: The Chief, the “Mandate,” Legality, and Statesmanship
            Neil S. Siegel
13        The Secret History of the Chief Justice’s Obamacare Decision
            John Fabian Witt
Part IV          The Decision’s Implications
14        Federalism by Waiver after the Health Care Case
            Samuel R. Bagenstos
15        The Health Care Case in the Public Mind: Opinion on the Supreme Court and Health Reform in a Polarized Era
            Andrea Louise Campbell and Nathaniel Persily
16        How Federalism Looks Now: Medicaid and the Nationalizing Effect of the Supreme Court’s Old-Fashioned Federalism in Health Reform
            Abbe R. Gluck
17        Constitutional Uncertainty and the Design of Social Insurance: Reflections on the ACA Case
            Michael J. Graetz and Jerry L. Mashaw
18        The Affordable Care Act and the Constitution: Beyond National Federation of Independent Business v. Sebelius
            Timothy Stoltzfus Jost
19        Medicaid’s Next Fifty Years: Aligning an Old Program with the New Normal
            Sara Rosenbaum
20        Health Policy Devolution and the Institutional Hydraulics of the Affordable Care Act
            Theodore W. Ruger 


Defining "the recess"

Gerard N. Magliocca

The Noel Canning case addressing the President's recess appointment power should be the star of the next Supreme Court Term, assuming that certiorari is granted.  I want to raise the following question about the panel opinion's interpretation of "the recess" to mean only an intersession recess.

One other provision of the Constitution refers to "the recess."  It is in Article One, Section Three, and describes what would happen (prior to the Seventeenth Amendment) if a Senator died or resigned.

"[I]f vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies."

This other use of "the recess" could point to a textual problem with the panel opinion.  It would mean that the Constitution imposed a federal definition of "recess" on state legislatures. If Connecticut said that intrasession breaks were recesses, or did not subdivide its legislative meetings into sessions at all, then that either would not be valid for purposes of a Senate appointment or would make a hash of the constitutional language.  Note also that Art. I, Sec. 3 refers to "the next meeting" of the legislature, not "the next session," which can support the intrasession interpretation.

Now you could say two things in response.  First, in practice all of the interim appointments of Senators prior to 1913 probably were intersession, for the simple reason that intrasession breaks would probably have been too short to make it worthwhile to name an interim person.  Second, "the recess" could mean different things in these provisions, one about states and the other about the Senate.  All of this is well worth exploring in more detail.

A Reconstruction of Conventional Understandings of Jurisprudence

Brian Tamanaha

The Third Pillar of Jurisprudence: Social Legal Theory, available here.

The abstract:

Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism.

A Leftist Critique of the Left

Brian Tamanaha

"The Failure of Crits and Leftist Law Professors to Defend Progressive Causes," available here.

The abstract:

Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation’s highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.

The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.

Liberal law professors often express concerns about class in American society — championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.

This is offered in the spirit of critical legal studies — as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia — including the Crits — with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. It may even lose me some friends. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.




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