Month: January 2007

Picking up on Ethan’s mention, the other day, of the upcoming Constitutional Commentary symposium on Jack Balkin’s recent paper on abortion and originalism, maybe it is worth mentioning — today being the 34th anniversary of Roe v. Wade — Balkin’s book, “What Roe Should Have Said.” And, it might also be worth noting Professor Fallon’s recent lecture, “If Roe Were Overturned: Abortion and the Constitution in a post-Roe World.”

As we all know, John Hart Ely observed that the decision “is not constitutional law and gives almost no sense of an obligation to try to be.” On the other hand, Senator Clinton hailed the decision, two years ago, as “a landmark decision that struck a blow for freedom and equality for women.” Everyone now endorses Brown, and even Chief Justice Rehnquist reconciled himself to Miranda, but both sides are still marching in the streets over Roe. What does this mean?

UPDATE: Balkin has a long, “Roe anniversary” post up at Balkinization.

Posted by Rick Garnett on January 22, 2007 at 10:12 AM

[Ed. this is another post on behalf of Bill Patry on the contemporary experience of treatise writing.]

There are a few things that have surprised me since announcing the treatise’s availability, and perhaps they are related. Copyright is these days highly ideological. I started my blog on the other hand as one hosted by a non-ideologue, one who in A.J.P. Taylor’s words, might still have “strong views lighthly held.” In the blog, I have tried to call it as I see it, sometimes skewering one side or the other, sometimes praising one side or the others, sometimes just laying things out for others to skewer or praise. As in politics, in copyright I am a registered independent. Yet, even though no one had seen the book, and thus could not assess its value, there were a few, including a few academics, who thought it “ironic” or worse, that the treatise was priced at $1498. Old concerns were repeated about the hegemony of copyright treatises, and how with my price, I was setting up a situation where at least one academic would have to stay with Nimmer and who implied that I had somehow failed to realize that purpose of a treatise is to level the playing field between the haves and the have nots. A commenter on my blog said facetiously that he would wait for the paperback.

It seems odd that people would make these remarks ever but especially without having seen the work: who comments on the value of a product without ever having seen it, and, further how did I get drafted as Fidel to Nimmer’s Batista? I am extremely comfortable with the price of $1498 and with the value of the work, which, if you want to include all of the work put into it, represents about 15,000 hours and 25 years of experience as a copyright lawyer in diverse backgrounds. Nimmer’s work is $1745, $250 more and is half the size of mine in addition to being a much older work. If you include differentials in updates, the disparity is far greater. So in both absolute and relative terms, $1498 is a great deal. Nor do I really get the concerns expressed about market barriers where there are dominant multivolume treatises. Nimmer became the dominant treatise merely because it was the only one for decades. There are no entry costs to writing a treatise the size of mine, and mine was researched and written entirely by myself: all you need to do is want to do it, and commit to do it for a really long time. If you do make that huge investment in time (in my case 15,000 hours), how is it that the price should be that of a paperback, or so deeply discounted that those who have the dominant treatise can shift without any real expense? I didn’t have any grants after all, or research assistants, or people paying my mortgage or my kids’ medical expenses, or giving me financial, moral, or any other support. I have, moreover, given away all of my complimentary copies save two (one for me, one for my family) to non-profit organizations, which I am told by them, no one else has done. My question then is, if people view such treatises as valuable, how are they supposed to come about? My understanding from my time in academia, is that at least for untenured faculty, treatises don’t much matter if at all: instead, it is publication of an article in a top 10 law review, edited by students that counts. If people not in academia write treatises and get them published, how are they supposed to be priced? Is there somehow a difference between a treatise on copyright and say one on tax, and if so, why?

Posted by Administrators on January 22, 2007 at 12:01 AM

Comments

$14.98 seems like a pretty reasonable price. I don’t see what the fuss is…the top books on the NYT hardcover list are usually $20-$30.

Posted by: Terry | Jan 24, 2007 5:51:27 PM

The thing I don’t understand is why prices are fixed. Journals are priced differently for universities versus individual buyers. Why couldn’t the cost be, say, $1999 for law firms, $1499 for law school libraries and courts, and $499 for individuals?

Posted by: Roger | Jan 22, 2007 1:21:16 PM

Don’t you realize that all you need to do is start a Copyright Wiki, and that within weeks it will naturally and inevitably become the world’s greatest copyright treatise?

Posted by: Orin Kerr | Jan 22, 2007 12:21:29 PM

First, a quick note: That $1498 isn’t all going to the author. I haven’t seen his contract, but I’m well aware of West’s standard terms… and let’s just say that the author isn’t going to get rich on 10,000 copies.

Second, a procedural note: The author has virtually no say in the list price of a book, whether in professional publishing or in trade publishing. In fact, if you read a typical publishing contract you’ll find that format and pricing are strictly reserved to the publisher. Thus, if you have complaints, send them to West — not to the author.

Third, the reality of the publishing process: I’ve been in-house at an academic publisher, handling both legal and editorial. Making a decent treatise in any field requires an absolutely shocking amount of work; if one adds it up across the entire publishing effort — editing, typesetting, production, marketing, fulfillment — an academic publisher puts about an hour and a quarter (admittedly, of generally poorly paid employees’ time) into every printed page. And then, for treatises of this nature, we’ll have periodic updates. Now factor in that relatively low sales expectation, and the extra costs imposed by a loose-leaf format, and that $1498 price doesn’t look quite as outrageous.

* * *

I certainly wish I could afford a personal copy of every treatise to which I refer. That, however, is what “libraries” are for. Yeah, those buildings with books in them that we don’t teach law students to use any more, because they’re too busy Lexercising their way toward dubious conclusions.

Posted by: C.E. Petit | Jan 22, 2007 12:17:15 PM

Clearly you have done the copyright community, and the world, an enormous service with your work. But copyright has become “ideological” because we are increasingly aware of the stakes of unequal access to knowledge. No one would dispute that you fully deserve not merely recognition and prestige, but monetary recompense for your labor. However, if we have learned one thing from open access advocates like Peter Suber and Sean Willinsky, it is that unequal access to knowledge can create social divides that reinforce existing inequalities. I have carried that point forward here:

http://madisonian.net/archives/2006/10/07/a-sketch-of-my-paper-on-ppei/

You may be understandably peeved by being drawn into this dispute in a case where the problems of inequality of access appear quite readily resolved. After all, academics and students get access on Westlaw, perhaps other users can use their local libraries’ subscriptions, and public interest groups like the Chilling Effects Clearinghouse can help the ordinary consumer use it.

Nevertheless, open access is a very sensitive moral issue for many scholars, particularly in the humanities, who may have to decide between prestigious publication + alienation of copyright OR lower-end publication + preservation of maximum public access to one’s work. My own sense is that academics should try to create a generalizable norm of open access to their work. But the unique labor and dedication involved in creating a treatise may be a reasonable exception to that rule.

PS: I just noticed your extensive comments here:

http://madisonian.net/archives/2007/01/10/patry-copyright-treatise/#comments

So I responded to them.

Posted by: Frank | Jan 22, 2007 11:44:38 AM

Congrats on the treatise, which is an under-appreciated form of work.

As to the price, you comment, “I am extremely comfortable with the price of $1498 and with the value of the work, which, if you want to include all of the work put into it, represents about 15,000 hours and 25 years of experience as a copyright lawyer in diverse backgrounds.”

I can understand why you think about it that way. But the purchaser doesn’t use the labor theory of value. It uses a marginal utility anlysis. Right?

Posted by: “Carl Menger” | Jan 22, 2007 10:44:24 AM

I agree that the whining is weak and add the following comments: 1. The primary market is law firms, and they pay if they find value 2. Libraries will have enough money for a copy, and academics can get it there – how many academics have a personal copy of Nimmer in their office 3. If Lexis or Westlaw picks this up, academics can get this for free 4. Copyright professors have little need for treatises – I can’t remember the last time I looked at Nimmer 5. I wonder whether the whiners make any money on their casebook sales…

Posted by: Anon | Jan 21, 2007 10:28:36 PM

There are a few reasons the Coke analogy doesn’t work, not the least of which is that the market for Coke is in the hundreds of millions: if a multivolume treatise on copyright law sells 10,000 copies it is a cause to rejoice. Moreover, once the initial investment into Coke was made, you can crank them out millions after millions every day; not so in legal treatises, which have to be constantly updated and researched.

I see at least two ways of looking at the pricing of legal treatises, and they aren’t mutually exclusive: what were your lost opportunity costs in writing it? After all, if you don’t think it is going to pay off, one (and certainly me) is not going to do and time and resources will go elsewhere. In my case, for example, I could have spent my time developing clients and building a big book of business.

The other thing to look at is, what is the existing market price for a comparable book? Nimmer is $1745, for almost half the textual analysis.

Posted by: William Patry | Jan 21, 2007 10:03:58 PM

My father’s approach to business is to make his product as cheap as possible. He believes that the cheaper you make the product, the more money you’ll make. No one thinks “gee, can I afford this Coke?” Therein lies the genius of their success. On the other hand, few people will turn to your treatise on a hot day. I suppose the idea is that very very few people need to buy your treatise. Therefore, their share of the costs that go into the product are justifiably greater. You might consider practicing price discrimination and giving group discounts. If the idea is that you’re only going to sell a few copies, justifying the price, why not give a 50% discount on orders of 10 or 20 copies? Specialists who are motivated to buy your product will be people who know other people in the field. Make them your sales force.

Posted by: Bart Motes | Jan 21, 2007 8:51:11 PM

I enjoyed a number of AALS panels that I attended and thought it might be worthwhile to pass on some of the interesting issues discussed there to folks reading the blog, especially students looking for issues to write about for paper courses and student Notes.

The Privacy and Defamation section meeting had an all-star information privacy lineup. Daniel Solove moderated the discussion of panelists Julie Cohen, Neil Richards, Pamela Samuelson, Paul Schwartz, and Lior Strahilevitz. The panelists highlighted neglected/emerging issues that they think deserve scholarly attention. Examples included: (1) empirical work on privacy issues, such as studies of corporate data-privacy practices, (2) the comparative competency of institutions addressing privacy issues (state AG offices, state consumer protection boards, self-regulatory industry groups, etc.), (3) our changing conceptions of privacy given society’s increasing use of social networking sites and the impending use of cellphones to connect with friends and strangers, (4) lessons learned from recently de-classified government documents related to surveillance activities of the 1960s to evaluate today’s government surveillance efforts in this post-9/11 era, and (5) our understanding of identity in the twenty-first century.

The panel fielded a number of interesting questions from the attendees. A participant asked about the propriety of law enforcement’s use of face-searching technologies to identify potential criminals from pictures posted on social networking sites such as MySpace. For example, a college student posts a picture of friends smoking pot. Using advanced face-identification software, police identify the individuals in the photo and follow up with arrests (or desk appearance tickets). The panel asked whether we want to encourage the use of such technologies by law enforcement given the attendant sacrifice of privacy with their use.

Pamela Samuelson and Julie Cohen also discussed the UnBlinking symposium held at Berkeley in November 2006. At that conference, academics from different disciplines gathered to address the effect that our “environment of unblinking eyes” will have on privacy and our behavior in public and private spaces in the twenty-first century. The symposium has a Wiki.

More AALS Highlights to follow this week.

Posted by Danielle Citron on January 21, 2007 at 04:21 PM

Comments

Thanks for the nice summary of our panel!

Posted by: Daniel J. Solove | Jan 22, 2007 11:46:32 PM

Constitutional Commentary will be publishing a symposium on Jack Balkin’s “Abortion and Original Meaning” in May 2007. You can already get many of the articles on SSRN:

Jack Balkin: Abortion and Original Meaning

Randy Barnett: Underlying Principles

Ethan J Leib: The Perpetual Anxiety of Living Constitutionalism

Mitchell Berman: Originalism and Its Discontents

It is a fun group of papers — and others are expected from Mike Rappaport (with co-author John McGinnis), Mike Paulsen, Sandy Levinson, and Dawn Johnsen. Balkin will then shut us all down in his Reply.

UPDATE: I’m told Levinson dropped out.

Posted by Ethan Leib on January 20, 2007 at 02:38 PM

Cellphones provide more information about us than ever before. Not only can the government track our whereabouts using GPS devices embedded in our cellphones, but the FBI now uses cellphones to eavesdrop even when our phones are turned off. To activate these so-called “roving bugs,” mobile providers remotely install software that turns on a cellphone’s microphone and transmits audio detected by it to a FBI listening port. Computer-surveillance expert James Atkinson explains that if “a phone has in fact been modified to act as a bug, the only way to counteract that is to either have a bugsweeper follow you around 24-7, which is not practical, or to peel the battery off the phone.” Security-concious corporate executives reportedly remove the batteries from their cell phones to avoid unwelcome audiences.

In a recent opinion, federal district court Judge Lewis Kaplan (S.D.N.Y.) upheld the FBI’s use of such a “roving bug” in a racketeering case. Judge Kaplan concluded that federal wiretapping law sanctioned the use of a cellphone bug to capture hundreds of hours of a suspect’s conversations because the FBI obtained a court order and because “alternative methods of investigation either had failed or were unlikely to produce results” given the subject’s deliberate avoidance of government surveillance. Serious discussion is warranted about the practical and constitutional significance of these cellphone spies.

Posted by Danielle Citron on January 17, 2007 at 02:38 PM

Comments

Police can use cell-site simulators to try to find a suspect when they already know their phone’s identifying information, so they can find anyone.

Posted by: Bruno Araujo | Apr 29, 2020 10:25:11 AM

Paul, interesting but I’m not sure it’s right. (I should preface this with an admission that I’m not a 4A guy.) If I go jogging w/ Danielle in the park and we’re not the subject of the warrant but we are planning some misconduct as we jog in the park, and we pass someone whose phone is tapped, don’t you think D and I have a reasonable expectation of privacy regarding our conversation as we pass the bugged phone, notwithstanding it being a “public place?” Otherwise, the cops can just put bugs on every lamppost, no? Come to think of it, maybe you are right. I would guess we could have a CCTV surveillance society like London w/o constitutional issue, so perhaps there’s no reason to think audio pickup is different than visual pickup. So let’s change the hypo a bit: D and I go to a large party in a private residence, where the suspect and his interlocutor are. Don’t D and I have a reasonable expectation of privacy in our phone conversation if we chat in a closed room adjacent to the bad guys standing outside the room in which we are talking, and now our conversation is picked up by the bug? Again, I’m not sure what the answers are, but I would think that if it turned on the reasonable expectation of privacy, the jogging in the park conversation and the closed room conversation at the party would qualify as 3d party interests worthy of consideration.

Posted by: Dan Markel | Jan 21, 2007 10:32:02 AM

I’m a little skeptical of the third-party claims. There are two possible relationships for third parties to be in vis a vis these phones. Either they’re talking to the phone owner (in which case the conversation is covered by the warrant for presumably probable cause, etc. anyway), or they’re not. And I think this is the really important point. Older kinds of surveilance take third parties into the net all the time: if you happen to be dating the mafia don’s daughter, your conversations are gonna be recorded by the FBI. That’s a normal incident of the phone tap, and I think it’s one that we accept — it’s an unavoidable incident of recording the calls that go to the don. Mutatis mutandis to house or office bugs, or, for that matter, stool pigeons following him around, and again to cellphone mics.

If they’re not talking to the suspect, either they’re in a public place or they’re not. If they’re in a public place, they have no or next-to-no expectation of privacy anyway — that seems pretty well established, and, anyway, an undercover cop could be hanging around listening in person with no constitutional claim. If they’re in a private place like someone’s home, I imagine that most of the time the reason they’re in the private place and the phone is in the private place is because they’re talking in a group that includes the suspect. In which case, yet again, that seems like a totally reasonable place for a normal tap/bug warrant to go.

So there’s a pretty rare case where we ought to be seriously concerned about third party rights. Maybe if the suspect leaves his phone in someone’s house and they talk merrily along with it sitting there or something.

Posted by: Paul Gowder | Jan 21, 2007 5:29:28 AM

I so appreciate Orin, Bruce, and Dan’s comments given that I only have just begun to delve into the area. As Dan suspected, I am interested in the zone of privacy afforded third parties vis-a-vis newly emerging surveillance technologies. Roving bugs catch all conversations/noises within a certain area of a suspect’s seemingly turned-off mobile phone, whether that zone encompasses a place of worship, home, or even a faculty meeting. I wondered whether the increasing use of such roving bugs might leave many so paranoid as to silence us in our daily affairs. It sounds like all of this could be tightly regulated through strict warrant laws and more protective state constitutional and regulatory schemes, but I wonder if potential constitutional issues remain as to third parties that are left unresolved. Much thanks to all.

Posted by: Danielle Citron | Jan 18, 2007 4:48:35 PM

Orin (and others), do you think the government should have to show, under 2518(3)(c), that normal forms of electronic surveillance are unlikely to succeed, or is it enough just to make the showing that normal forms of non-electronic surveillance are unlikely to succeed? I.e., is a normal wiretap or stationary bug a “normal investigative method” when the issue is roving bugs, or does a roving bug just become part of the electronic surveillance toolkit when non-electronic surveillance is ineffective? The lower threshold seems insufficiently protective of privacy, and the higher threshold seems at least a plausible reading of the text. This is statutory, not constitutional, but perhaps it would address Danielle’s concerns.

Posted by: Bruce Boyden | Jan 18, 2007 2:52:37 PM

Danielle,

No, I think it doesn’t. To be sure, we would want this to be tightly regulated with a very strong warrant requirement, such as that imposed by the Federal Wiretap Act. And in the case of state investigations, we might want this authority to be even more tightly requlated, such as by federal laws limiting state wiretaps, as well as state statutory and constitutional regulations that can exceed the already very restrictive federal standard. But unless I’m missing something, that’s already the law. So the question is, is the preexisting law that covers this sufficient? I tend to think it is. Danielle, do you disagree?

Posted by: Orin Kerr | Jan 18, 2007 1:39:25 PM

FYI the link above to the decision is broken. The decision is United States v. Tomero, 2006 U.S. Dist. LEXIS 85560 (S.D.N.Y. 2006), available here:

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=2006+U.S.+Dist.+LEXIS+85560

This development seems to collapse boundaries that previously existed for technological or practical reasons between bugs and wiretaps, and also further uproots such interceptions from a particular place. Cell phone taps have long been legal, but even then with the tapping occurring only when someone is on the phone, i.e., isolated conversations. It strikes me that bug that is attached to a person (for practical purposes) rather than a location is more intrusive than your average bug, and should get additional scrutiny.

But it looks from the opinion like Judge Kaplan may have taken that into consideration in finding that Section 2518(3)(c)’s exhaustion requirement was met, which SDNY caselaw allows if the government can “demonstrate only that normal investigative techniques would prove difficult. All that is required is ‘a reasoned explanation, grounded in the facts of the case, and which squares with common sense.'” In this case, Kaplan found that the government demonstrated not only why normal methods of investigation wouldn’t work, but also why normal methods of *electronic surveillance* wouldn’t work. E.g., “wiretaps on the Ardito and Peluso cellular telephones were not successful because the subjects ‘were extremely careful and guarded on the cellphone, [and] recognize[d] the potential for electronic interception.’ Further, the conversations intercepted at the four restaurants painted a limited picture of the subjects’ criminal activity because defendants were aware of the listening devices there and held meetings in other places, such as public streets, where the risk of surveillance was low.” But he didn’t expressly state that that is a required showing before getting one of these “roving bug” orders. That strikes me as a reasonable requirement, but we’ll see if it sticks.

The ongoing arms race here between investigators and racketeeers here is also interesting. The next logical step, I guess, will be to remove the cellphone battery before talking business. Maybe nanotechnology will be next?

Posted by: Bruce Boyden | Jan 18, 2007 12:05:20 PM

One might think that everyone buying a phone like this is now opting in to the field of surveillance, especially if the law enforcement use is constrained by warrants. But here’s the thing that eluded me earlier and that perhaps Danielle was getting at: if the phones are picking up ambient conversations aside from those who are targeted by the warrant, then those persons’ privacy interests are arguably being invaded by the gov’t. Orin, you may know this: is a 3d party’s privacy interest implicated if the government is trying to snoop only on the conversation between the owner of the phone with a wire-tap warrant?

Posted by: Dan Markel | Jan 18, 2007 10:26:08 AM

Dan and Orin, Even if the cellphone bugs provide significant advantages to law enforcement, might this new technology push the envelope too far in terms of the privacy society forfeits with their use?

Posted by: Danielle Citron | Jan 17, 2007 10:00:33 PM

I’m also curious as to what the constitutional issues might be. The technology is really interesting, but I tend to think that there aren’t any particularly new legal questions here.

Posted by: Orin Kerr | Jan 17, 2007 5:58:10 PM

Danielle, about six years ago I gave a presentation with Eric Saltzman about wireless tracking devices to the NAAG, and it seems to me that there are a lot of benefits that can accrue from “roving bugs” as well as some dangers (to privacy). I guess I’m wondering what constitutional issues do you think are raised by these cellphone bugs? That the FBI can ever tap into these phones (as opposed to our landlines)?

Posted by: Dan Markel | Jan 17, 2007 4:42:02 PM

Greetings, sportsfans! The Court pitched its fourth CA9 shutout on the season in today’s lone opinion, an immigration-law decision that will principally be of interest to (1) law nerds and (2) immigration law nerds. I say principally because throngs of Minutemen briefly looked up from gun magazines to hail the decision as “a good bit of book larnin.”

Gonzales v. Duenas-Alvarez, 05-1629

Justice Breyer wrote for the essentially unanimous Court (JPS joined all but one subpart). The Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G), which has now surpassed the Internal Revenue Code and the Federal Acquisition Regulation for sheer reticulated complexity, provides for deportation of an alien who commits a “theft offense.” The issue is whether a California conviction for aiding and abetting a theft falls within this definition. The Court answers such questions by examining the state statute of conviction and determining whether it contains the same elements as the generic crime of theft, as it is defined by the criminal code of most states. See Taylor v. United States (1990). The 9th Circuit held that aiding and abetting falls outside the generic definition of theft. Utilizing the Court’s “CTRL-ALT-9” macro that has worn smooth countless keyboards, Justice Breyer wrote: “We conclude that the Ninth Circuit erred.” The Court explained that every single U.S. jurisdiction (including California) has abolished the common-law distinction between principals and aiders and abettors (except accessories after the fact, not at issue here). So aiding and abetting theft in California clearly falls within the modern, generic definition of a “theft offense.” The respondent did not even attempt to defend the CA9’s reasoning. Instead, seeking to avoid the California theft statute itself, he argued that California caselaw holds an aider and abettor liable for crimes that he did not specifically intend—i.e., crimes that are the “natural and probable consequence” of the intended crime—and thus extends beyond the generic definition of theft. SGB comprehensively surveyed the caselaw and concluded that California’s version of aiding and abetting liability is no different than other jurisdictions. The Court declined to reach two additional arguments that respondent failed to raise below.

JPS joined all but the section discussing California caselaw. In a triumph of hope over experience, he would simply have vacated the 9th Circuit’s ruling and remanded to give the CA9 the first crack at interpreting California law. To quote noted philosopher-poet George Michael, “you gotta have faith-uh, faith-uh, faith.”

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author.

If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on January 17, 2007 at 01:47 PM

» Round-Up from SCOTUSblog The AP’s Christopher S. Rugaber has this article at Law.com on the Court’s refusal to hear two IBM employment cases. At Slate, Bonnie Goldstein has this post on Chief Justice Rehnquist’s medical records, released through a Freedom of Information Act… [Read More]

Tracked on Jan 17, 2007 4:19:25 PM

So McGinnis & Rappaport have uploaded their “Pragmatic Defense of Originalism” to SSRN and the Northwestern Law Review’s on-line companion. Here’s the abstract:

In this brief essay, we offer a new defense of originalism that focuses on its consequences. We argue that interpreting the Constitution according to its original meaning is more likely to produce good results today than non-originalist theories of interpretation. We thus offer a defense of originalism that transcends previous arguments that originalism is to be preferred because of the constraints it imposes on judges or its consonance with the rule of law. Our argument proceeds in four steps. First, entrenched laws that are desirable should take priority over ordinary legislation, because such entrenchments operate to establish a structure of government that preserves democratic decisionmaking, individual rights, and other beneficial goals. Second, appropriate supermajority rules tend to produce desirable entrenchments. Third, the Constitution and its amendments have been passed in the main under appropriate supermajority rules and thus the norms entrenched in the Constitution tend to be desirable. Finally, this argument for the desirability of the Constitution requires that judges interpret the document based only on its original meaning because the drafters and ratifiers used only that meaning in deciding to adopt constitutional provisions.

Although I am a big fan of McGinnis & Rappaport’s attention to supermajoritarianism — and, indeed, draw heavily from their important work in my recent article on jury decision rules — I can’t really make heads-or-tails of this paper. My thoughts after the jump.

It begins by offering what they think is a bold claim: that pragmatism (understood as adjudication in light of consequences) can be made consistent with originalism (understood as interpretation in light of the original meaning of constitutional provisions). Of course, plenty of people think of originalism as a “pragmatic” choice for constitutional interpretation: it gets better results on a rule of law dimension; it may get better results on a judicial discretion dimension; etc. So I’m far from convinced that this first gambit is particularly new. It is a classic rule-utilitarian approach to the question of interpretation: we are for good results — and originalist methodologies get us those results on the whole. But the kind of “results” and “consequences” McGinnis & Rappaport are interested in are the sort of legitimacy/rule of law results that have always interested a large group of originalists, not the sort of day-to-day empirical results that concern the pragmatists like Posner.

Here’s where supermajoritarianism comes in, supposedly: Decisions, texts, and policies adopted through the rigorous structures of supermajoritarian rules are better (on the whole) than those adopted through “mere” majoritarian rulemaking. So we ought to embrace the original meaning of those supermajoritarian decisons, texts, and policies.

I don’t think this makes much sense. There is little reason to believe that constitutional provisions adopted under supermajoritarian rules are necessarily better than those adopted under different decision rules: The Civil Rights Act of 1964 might be “better” than the limited protections of the 14th Amendment. In any case, I’m not sure how one is supposed to do these sorts of calculations about which processes get “better” results: supermajoritarian rules might be better for structural and constitutional provisions (and jury decision rules) — but would be terrible for other kinds of decisions.

Even if one could grant that supermajoritarian decisions are “better,” it remains far from clear that originalism is the only — or even the most appropriate — response. One could be “purposivist,” trying to uncover the underlying principles of any supermajoritarian deal. One could be “intentionalist,” emphasizing, say, the intentions of the pivotal voters required to get any supermajoritarian deal passed. One could be a dynamic textualist, rather than focusing on original meanings or original expected applications. In short, we’re back to where we started: even if you agree that constitutional provisions are “good” and “legitimate,” you still need a theory to tell us how and why we should read them historically.

I’m sure I’ve missed something here because I read the paper very quickly. But the basic argument just doesn’t seem to follow.

Posted by Ethan Leib on January 17, 2007 at 01:07 AM

Comments

John, I imagine the originalist could well argue that originalism does not depend on the notion of a single original meaning, but simply a range of acceptable interpretations. Justice Scalia has said as much. But even this assumes a certain determinacy of language, as Professor Rosenthal suggests.

I think indeterminacy is a serious problem undermining even the later variants of originalism (i.e., original public meaning, etc.). On a related note, I also think that we do not follow rules in the manner that most models of originalism assume that we do. I’ve written on the latter here.

(Hey Aaron)

Posted by: Daniel Goldberg | Jan 17, 2007 10:39:37 PM

I share in the interest in supermajoritarianism and entrenchment. But I also have questions about whether supermajoritarian decisions are better. If we are willing to say that a supermajoritarian decision at Time 1 is reliably better than a simple majoritarian decision at Time 1, from that I’m not convinced it follows that a supermajoritarian decision at Time 1 is reliably better than a simple majoritarian decision at Time *2*. (In the extreme case, imagine the people at Time 1 are radically ill-informed.) Also, perhaps I’m dense but I would like to hear more about why exactly the ratification of the Constitution (as opposed to the Article V amendment process) was so supermajoritarian, as compared to our de facto supermajoritarian legislative process. That 9 states were supposed to agree doesn’t seem enough to me to establish that.

Posted by: Aaron | Jan 17, 2007 8:31:09 PM

The problem identified by the previous post is a serious one for any “pragmatic” defense of originalism. If there is no reasonably determinate meaning of a constitutional provision, then we cannot expect originalism to lead to disciplined and predictable results. Yet originalists rarely defend their implicit assumption that constitutional provisions have reasonably determinate original meanings. Certainly McGinnis and Rappaport do not.

My own view is that many of the open-ended provisions of the Constitution were adopted precisely because they had no especially fixed meaning, and therefore were able to be sold as compromises that could better obtain the necessary supermajority support. If that is right, then the requirement of a supermajority — which is central to McGinnis and Rappaport’s views — actually makes it less likely that a constitutional provision will have a determinate original meaning. I have posted on SSRN a paper making an along these lines with respect to the Due Process Clause at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=929217

Larry Rosenthal Chapman University School of Law

Posted by: Lawrence Rosenthal | Jan 17, 2007 3:40:52 PM

Isn’t the assumption that there is a single original meaning itself questionable? We have no idea what some parts of the Constitution mean (consider Seth Tillman’s piece on Art. I, sec. 7, cl. 3) and other parts of there are competiting original meanings for other parts of the Constitution (e.g., 2d Amendment). Moreover, consider Easterbrook’s attack on the use of legislative history; surely that applies with equal force to the Constitution. Judges are not historians (or at least very good ones) and trying to divine a single original meaning from a collaborative document is quixotic to say the least. In light of the obvious flaws of their theory, I can only surmise that McGinnis and Rappaport are grasping for an interpretive method that will ultimately support particular political positions.

Posted by: John Marshall | Jan 17, 2007 10:43:09 AM

Greetings, sportsfans! While the Court gave us no merits opinions today, there is some interesting miscellany to report in connection with today’s Orders list. Well, not “interesting” like the NFL playoffs are interesting, or the ongoing Lindsay Lohan-Paris Hilton duel for the title of World’s Least Intelligent Non-Vegetable is interesting (at least in a morbid-curiosity sort of way). But hey, if you’re the kind of person who has subscribed to a Supreme Court newsletter, this may beat out the Golden Globes on TiVo for your attention this evening. Those of you who do not feel at least a little tingle when reading about CVSGs may want to move on to more heady fare.

First up, we have orders-related opinions from the Court’s opera-loving odd couple, Nino and Ruthie. And last but not least, we bring you another thrilling edition of Relist Watch, in which your humble sportscaster notes intriguing petitions languishing on the Court’s docket and speculates on what fate will befall them.

United States v. Omer, 05-1101

Justice Scalia concurred in the denial of cert in this case, which was being held for Resendiz-Ponce—the case that was supposed to determine whether a defective indictment could ever be harmless error. Of course, last week’s decision in Resendiz-Ponce did not answer this question, but instead held that the indictment (for attempted illegal re-entry) was not defective because the meaning of “attempt” is so well-known that the indictment need not specifically allege the overt-act and mental-state elements. The SG immediately pounced on that holding, filing a supplemental brief in Omer arguing that the fraud indictment in that case was not defective either, because everyone knows what fraud means, so why should the government have to go to the trouble of spelling out the elements of the crime in the indictment. Justice Scalia argues that the government’s filing vindicates his decision to dissent in Resendiz-Ponce from the Court’s new “some-crimes-are-self-defining jurisprudence.” He laments that that case gives the government “a license to avoid explicating the elements of a criminal offense,” thus opening “another frontier of law . . . full of opportunity and adventure for lawyers and judges.” This may set a new record for the shortest time elapsed between an opinion of the Court and Scalia’s “I told you so” opinion.

Haas v. Quest Recovery Services, Inc., 06-263

The Court GVR’d this ADA case to the 6th Circuit so that it could consider both the views of the United States as intervenor and the Court’s decision in United States v. Georgia (2006), which held that Title II of the ADA validly abrogates state sovereign immunity at least to the extent that a plaintiff alleges constitutional violations. The CA6 had held that the ADA did not abrogate Ohio’s immunity. Justice Ginsburg concurred in the GVR and penned a short advice column to the CA6, noting that the lower court’s opinion was just plain fishy in various respects. Her friendly advice on how to be a good appellate court: (1) Do not ignore controlling Supreme Court decisions (see U.S. v. Georgia); (2) dismissing claims based on judicial immunity is a no-no when the defendants are not judges; (3) do not make up your own heightened pleading standards that are not included in the Federal Rules of Civil Procedures; (4) do not reach out to strike down a federal statute when you hold that the plaintiffs didn’t state a claim under the statute anyway. Maybe Justice Ginsburg has a particular type of dyslexia that makes 6s appear to be 9s.

In other cert-related news:

· Justice Stevens concurred in the denial of cert in Josephs v. United States, 06-5590, to say that he thought the CA3’s holding was wrong, but probably harmless and therefore not worth correcting.

· The Court denied cert in Didden v. Village of Port Chester, 06-652, a takings case with egregious facts that seemed even to exceed the private-development takings the Court allowed in Kelo v. New London (2005). Today’s denial shows that the Court is none too eager to grasp the nettle of crafting judicial limits on Kelo takings.

RE-LIST WATCH: Here are a few particularly interesting cases that the Court has been sitting on for a while, along with my speculations on why. I’ve omitted cases that are clearly being held for a pending decision.

· Skoros v. New York City, 06-271 (relisted six times): This is the potentially important religious-symbols case from the 2d Circuit that I mentioned back in December. When, as here, a case has been relisted for over two months, it is either being held for another case or we are waiting on a significant dissent from denial. Holds frequently just “disappear” from the docket and aren’t affirmatively relisted; also, there’s no evident reason to hold, so it’s probably the latter.

· Lance v. Dennis, 06-641 (relisted twice): This is a direct appeal from a three-judge district court’s denial of a claim that Colorado violated the Constitution’s Elections Clause by permitting the state judiciary, instead of the state legislature, to draw Congressional districts. Because this is a direct appeal, the Supreme Court must rule on the merits. Ordinarily on direct appeals, the Court either summarily affirms without opinion, summarily affirms with opinion, or sets the case for full briefing and argument. When this case reached the Court in an earlier incarnation in 2004, cert was denied over three dissents (CJ Rehnquist, Scalia, Thomas). Similarly this time, I bet we will see a summary affirmance over multiple dissents. However, it’s conceivable that the relists simply mean the Court is still deciding whether it wants to hear full argument or not.

· Powerex Corp. v. Reliant Energy, 05-85/ Powerex Corp. v. California, 05-584 (relisted twice): Cert to the CA9, with the SG’s recommendation to grant. The issue is when a foreign company gets sovereign immunity as an arm of a foreign state. I’m not sure what the holdup is here, but the Court’s docket tells us that the parties recently filed supplemental briefs, so there may be some late-breaking developments that the Court is still processing.

We may see opinions tomorrow. Until next time, that’s today’s baseball. Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on January 16, 2007 at 06:48 PM

On a recent trip to Asia, I came face to face with the SARS epidemic of 2003. As soon as I landed at the airport in Hong Kong, I observed many people wearing those face masks made famous by SARS. The immigration officials wore them, the customs staff wore them, and the taxi driver wore one. Now it is true that not everyone wore one. Indeed, the majority of people in Hong Kong did not, but given the recency of the SARS crisis and the timing of my visit during cold and flu season, a noticeable minority of people did. I began to wonder if I should protect my health by wearing one too. An expat in Hong Kong soon explained to me that I misunderstood. Wearing the mask in Hong Kong is not about protecting yourself from the germs of others, but rather it is about protecting others from your own germs when you are suffering from a cold or a cough. It is a matter of respiratory etiquette that residents of Hong Kong now take very seriously post-SARS.

SARS has changed Hong Kong in more ways than one. Should we Americans also learn from SARS? Right now, the US is also in the middle of its flu and cold season and yet I have not seen one person in New York City wearing a face mask, to protect others or even to protect themselves. In the US, the most I see are posters urging all of us to wash our hands more frequently and increased sales of Purell liquid gel. In some waiting rooms of hospitals and doctors’ offices in the US, sick people are being required to wear face masks, but they are the only ones. Posters and Purell . . . I have to ask, “are we being foolish here?”

Given the very real threat we face as a global community from contagious epidemics such as SARS or avian flu, shouldn’t the wearing of masks rely not on etiquette but instead rely on the law? How about using tort law, if not criminal law, to impose a duty upon those of us who have respiratory illnesses to stay at home, or to wear a mask if they go out amongst the rest of us. The concept may sound far-fetched, but consider that states have already criminalized the sexual relations of people with AIDS who fail to give notice to their intimate partners. In Illinois and Georgia, such behavior is considered a felony. Other states have allowed unknowing intimate partners to sue AIDS-infected defendants for the infliction of emotional distress. Perhaps our country will need to experience a SARS-like crisis itself before such strong legal measures are taken. SARS infected 1,755 people in Hong Kong and killed 300 of them. With such social harm at stake, can we afford to wait?

Posted by Elaine Chiu on January 16, 2007 at 06:42 PM

Comments

Fascinating post, but I think I’m won over by Andrew’s stigma point. Nevertheless, there are other approaches, like requiring provision of sick days, or norm-based evolution to “elbow bumping” instead of handshaking (i think the WHO proposed that!)

Posted by: FRank | Jan 19, 2007 9:27:26 PM

The difference between imposing tort liability for those who transmit AIDS and those who transmit SARS is the difference between the diseases. It is easier to determine who gave you AIDS, simply because one is more likely to know whose bodily fluids one has come into contact with. SARS, by contrast, is an airborne disease. Most of us can name all the people we’ve had sex with–but how am I to know which of the 200 people in the crowded subway car gave me the disease, even if I am able to pinpoint that subway ride as the one in which I got the infection.

These search costs make the bilateral nature of tort law unfeasible. Criminal or regulatory civil laws might work, however. They seem to have the same function as social norms. One wonders if we in the US would react the same as those East Asia, where social norms act far more powerfully. It might be quite a hassle to require everyone on, e.g., the subway to wear a mask, but I presume that it would be legal. The government’s emergency powers pursuant to public health–quarantine, seizure of property, etc.–dwarf those in, say, the criminal justice arena.

One final problem with your suggestion is the implication that the duty should fall only upon “upon those of us who have respiratory illnesses.” Naturally, they are the ones who will cause the infections, but I think a far better solution would be, in the event of an outbreak, simply to require everyone to wear one. This isn’t as much a legal argument as a social one–wearing a mask would carry far less stigma.

Posted by: Andrew | Jan 16, 2007 7:52:20 PM

So said Sasha Baron Cohen, a.k.a. Borat, yesterday accepting the Golden Globes award for best actor in a comedy. The rest of what he said would be improper to repeat in such a proper blog as ours.

Other highlights from last night:

Warren Beatty, accepting the lifetime achievement recognition, thanking Schwarzenegger for becoming a Democrat, “as I asked of him.”

Helen Mirren majestically competing against herself in multiple nominations and multiple categories for portraying various British royalty throughout history.

And ending with a personal golden achievement from yesterday: I overcame some irrationality and let my husband fly our two young ones on an hour long flight in the small, two engine plane (much safer than highway ground travel so I have learned) he likes so much. The girls loved it.

Posted by Orly Lobel on January 16, 2007 at 05:31 PM

Comments

My father flew me around in a single engine Cessna from the time I was six…wonderful memories, and I could navigate an airplane by instrument by the time I was nine – perhaps one of the reasons I did so well in math in future years. So hurrah for your daughters!

Posted by: Bev | Jan 16, 2007 11:10:07 PM

{ This will be my last post of this visit, so thanks to Dan, the rest of the Prawfs crew, and of course everyone who’s read and commented! -Scott }

Why won’t politicians admit obvious affirmative action in high judicial appointments? Did anyone other than Clarence Thomas’s mom believe President Bush the Elder in 1991 when he announced that then-Judge Thomas (age 43, with barely one year of judicial experience) was the “most qualified person in the country for the position”? Thomas may well have been qualified, but that’s a far cry from “most qualified” in a nation with no shortage of legal luminaries of all ideological stripes with more impressive accomplishments and qualifications.

Into this tradition of AA denial walks New York’s new Governor, Eliot Spitzer, who just appointed Justice Theodore Jones, a state trial court judge in Brooklyn, to the state’s high court, the New York Court of Appeals. I know only what I’ve read about Justice Jones in the past few days since his nomination, and it’s all good; he may well be a great choice.

What I have a problem with is Governor Spitzer’s statement that “race … did not play a role in our selection process.” Of course it did.

(1) The only black judge on the high court had recently departed, and there was both immense pressure and good reason to find and appoint a nonwhite candidate.

(2) Justice Jones didn’t have a superstar resume. He seems to be a highly able, highly respected trial court judge. But does anyone think a great trial court judge who’s white would’ve gotten the nod?

(3) Governor Spitzer doesn’t really want us to believe this was race-neutral; he felt he had to say that it was, but if you look at the Governor’s full quote and the N.Y. Law Journal coverage, it doesn’t take Sherlock Hemlock, world’s greatest detective, to find clues that race did play a role:

“I have always believed that government should reflect the diversity of our society,” Mr. Spitzer said. “Having said that, race, gender did not play a role in our selection process. I was asked to make a choice … based upon who would be the best jurist. I chose based on the merits of the individual candidates.”

I’m glad the Governor appointed Justice Jones; he sounds like a very good candidate, and an all-white high court (amidst an incredibly nondiverse state judiciary generally) in New York, a huge and hugely diverse state, would be a travesty.

What frustrates me is that the affirmative action debate, which has been a constant on the Supreme Court’s docket for almost three decades (I think 8 major cases in 28 years), is stunted by the failure of our most prominent practitioners of affirmative action — Presidents and Governors making high-profile appointments — to admit what they’re doing. High-level hires like these are some of the most easily defensible AA: there’s a total glut of talent at such high levels, so AA can be a pure “tiebreaker” among highly qualified candidates, not an acceptance of lower qualifications; and for policymaking courts, diversity in life experience really matters.

For those of us who think some AA is defensible and important, it’s not promising that a new governor at the height of his powers (just elected with a 69% majority) fears the political risk of telling us the truth about his affirmative action decisions.

Posted by Scott on January 16, 2007 at 11:24 AM

Comments

Hmmm, I usually subscribe to the idea that AA is less defensible the higher up you go. Two reasons: one, the opportunity benefit versus the competence cost becomes worse and worse as you go up the totem pole. Two, people tend to point to visible, successful members of the group in order to discount the adversity that they face. Lastly, it accentuates the biggest problem with AA, that it benefits the putative champions of the disadvantaged group at the expense of the majority of them, i.e., to wit, it would be better to improve inner city schools than to give the already pretty well advantaged Jesse Jackson, III, a great scholarship, but if you are Jesse Jackson, Jr., what are you going to want to get?

But I’m interested in correction.

Posted by: Bart Motes | Jan 17, 2007 10:46:31 AM

Scott, many thanks for all your provocative posts! See you back here soon.

Posted by: Dan Markel | Jan 16, 2007 6:45:32 PM

It seems the politicians (instead of leading) are simply responding to a poisoned political environment in which reference to such things as ‘affirmative action,’ ‘welfare state,’ and even the ‘common good’ are dropped from political discourse if not invoked in a purely pejorative sense (‘dirty words’), while ‘private initiative,’ ‘free markets’ and ‘individual achievement’ are hallowed and spellbinding phrases. In other words, one part of the political spectrum has become accomplished in ‘the organized attempt through communication to affect belief or action or inculcate attitudes in a large audience in ways that circumvent or suppress an individual’s adequately informed, rational, reflective judgment,’ i.e., (both political and sociological) propaganda (Randal Marlin).

Posted by: Patrick S. O’Donnell | Jan 16, 2007 12:47:30 PM

Paul blogged a few days ago about Cully Stimson’s now-widely-discussed (and, so far as I can tell, universally rejected) complaints about law firms representing Guantanamo Bay detainees. Paul endorsed (as do I) the view that Stimson is off-base, and agrees with (as do I) Jonathan Adler’s statement that “[a]ll individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to legal process, and it is wrong to impugn attorneys on the basis of the clients they represent.”

Now, a number of prominent law-school deans have weighed in, with this letter. The deans write:

We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation. Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers. At this moment in time, when our courts have endorsed the right of the Guantanamo detainees to be heard in courts of law, it is critical that qualified lawyers provide effective representation to these individuals. By doing so, these lawyers protect not only the rights of the detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.

To be clear, I agree entirely with this statement. I wonder, though, if a similar statement was warranted when some students at Harvard Law School protested against Ropes & Gray, during on-campus recruiting (according to this report), for its representation of Catholic Charities, which was at that time seeking an exemption from a non-discrimination law requirement that adoption agencies facilitate adoptions with same-sex couples?

Obviously, statements from government officials like Stimson raise concerns that student protests do not. Still, it strikes me that, “in a free and democratic society,” the religious-freedom rights of those with unpopular religious views deserve and require “zealous and effective representation” no less than the rights of detainees. Consider this, from the Boston Globe:

”The words ‘boycott-slash-picket’ were thrown around,” said Peter Renn, a third-year student and Lambda board member who said he had wanted to shame Ropes into ending its work on behalf of Catholic Charities and warn the firm that the issue could hurt recruiting at Harvard.

”Big firms like this are very concerned about public relations, and who in this game is maximally positioned to exert pressure on Ropes & Gray? It’s law students,” said Renn, who will clerk for a federal district court judge in California after he graduates. ”Attorneys at the firm are in a horrible position, because they don’t want to get canned, so they can’t say, ‘How dare you take that case’ and insist the firm withdraw.”

In his Stimson post, Paul wrote, “One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not.” Should Dean Kagan (who signed the law-deans’ letter regarding Stimson) have made a similar point to Harvard’s students?

UPDATE: I have changed “Simpson” (in the original post) to “Stimson”

Posted by Rick Garnett on January 16, 2007 at 11:08 AM

Comments

This thread of comments poses an interesting hypothetical: suppose that an individual with proven ties to al-Qaeda sues the U.S. government in a 1983 suit for mistreatment. (Let’s assume that al-Qaeda is “powerful” or “well heeled,” etc. and can find good legal talent on its own.) Ropes & Gray has been retained by the individual/al-Qaeda to prosecute the claim. Cully Stimson, et. al., along with law students, call for a boycott of Ropes during recruiting season based solely on the fact that they represent a known al-Qaeda operative.

Thoughts?

Posted by: Joel Smith | Jan 17, 2007 12:46:52 PM

I’ll be honest, I don’t know anything at all about the catholic charities case. But I do have some thoughts on the “everyone deserves a lawyer” ethic issue, and the comparison in question.

First, I think that there is a difference between pro bono work to determine someone’s guilt, innocence, or liability, where such is in question, and pro bono work to advance a legal position. One involves defending a person from an attack. The other involves political advocacy through the courts. One lawyer is acting as an advocate for someone facing the coercive power of the legal system. The other is acting as, essentially, a specialized lobbyist. One might conclude that everyone deserves a defense when faced with the power of the State leveraged against them, but that not everyone deserves a free lobbyist.

Second, whether your pro bono work puts you on the side of angels depends an awful lot on whether the person who’s case you take really needed the pro bono help, doesn’t it? Ken Starr, for example, famously took on pro bono casework on behalf of a school district attempting to advocate for a change in the law to permit greater suppression of student speech than is presently permitted. Taking on a pro bono case on behalf of a school district (which could pay for counsel if it really wanted) is not the same as taking on a pro bono case on behalf of an impoverished person locked in an off shore prison without charges. I suspect that the Catholic charities weren’t exactly incapable of finding financing for their lawsuit if they wanted to. No doubt they preferred the free counsel from a famous and politically connected attorney. But that’s not a right.

Finally, intuitively, it seems to me that donating your time and labor to defending a person facing prosecution (or eternal nonprosecution in this case) can be roughly categorized as “doing a tough, unpopular, but necessary job no one else wanted to do.” In comparison, donating your time and labor to advocating a political position held by lots of people on behalf of a probably well heeled client is more akin to “donating to a Political Action Committee.” I’d intuitively judge the ethics of the second in the same manner I’d judge any other contribution of money to an advocacy group.

Posted by: Patrick | Jan 17, 2007 10:55:24 AM

UN Owen is right, I think, to remind us that our reaction to the “everyone needs a lawyer, so don’t judge me for my clients” might be different in criminal cases than in the run-of-the-mill civil case. That said, it seems to me that — as least as a general matter — the interests at stake in a religious-freedom dispute have a weight that is more like those at stake in a criminal case than those that are at stake in a typical civil dispute.

In response to Bobbi A.’s comment, I am happy to agree that some clients’ causes or views might — like Phelps’ — be so loathesome that I would not want to help advance them through my representation. (That said, those of us who oppose capital punishment are often in the position, aren’t we, of advancing the interests of people who have done unspeakably loathesome things.)

As for her question about the “church’s position,” I would have thought that the following argument was pretty unremarkable: “We want to continue what we’ve been doing for years, namely, help facilitate adoptions. But, we have a religious objection to cooperating with adoptions by same-sex couples, because we think such cooperation is in tension with our understanding of sexual morality. We understand, of course, that not everyone shares our understanding, and we are not challenging in any way the government’s decision to treat same-sex couples and opposite-couples the same way in the context of its own adoption processes. But, given that we’ve been able to provide a valuable service, and given that we’ll have to stop providing that service if we are required, as part of providing that service, to facilitate adoptions by same-sex couples, and given that other agencies — including government agencies — are available to facilitate such adoptions, we think the government ought to exempt us from this particular requirement.” It’s hard for me to regard this argument as being anything like the kind of argument that would be advanced by someone “who urges the death penalty for gays.”

Posted by: Rick Garnett | Jan 16, 2007 8:07:06 PM

Here’s a few distinctions:

1) Stimson is part of a government with enormous power. The Harvard protesters are private citizens, and believe me, Ropes & Gray can find great legal talent at many other Boston law schools.

2) There is a major question as to the guilt or innocence of many of the detainees. The conflict over the CC exemption is a political issue, shoehorned into courts. Argument and legal acumen doesn’t matter here–it’s about power. People choose sides, then turn to reason go justify their position.

3) Might you point us to some good arguments for the church’s position here? It’s rather easily high-minded to take the “god’s eye view” that everyone deserves representation. But top flight legal talent is scarce. So I have a sense that real argument here depends on substance. What’s the substance of the church’s opposition? If one canonical document simply states that gay adoptions are a form of “objective violence” against children (as I believe one did), is that enough of a substantive basis?

4) At what point would a church’s advocacy start to get so extreme that you might be queasy over urging top legal talent to defend it? Let’s say that Fred Phelps, or someone who urges the death penalty for gays, gets sued over something. Are these “unpopular religious views” just as deserving of representation by the very best firms?

Posted by: Bobbi A. | Jan 16, 2007 6:11:20 PM

In response to MD, I think being continuing general counsel to Al Qaida, the mafia, etc. raises genuine moral issues. But there are several differences. First, while some of the Gitmo detainees may be part of a terrorist group, we already know that some aren’t — and part of what the Gitmo lawyers are doing is to try to gain access to a process that will fairly and accurately sort out who is and who isn’t. Second, the Gitmo lawyers are, presumably, only representing the detainees in this particular matter — they aren’t ongoing counsel. That’s why I noted in my first post that the laywers here were acting “in one particular case” only. Indeed, what the Gitmo attorneys are fighting for is to establish or defend certain constitutional or human rights, not the institutional interests of any organization.

So “power” isn’t the only issue, but I do sometimes tire of folks equating, say, being on-going counsel to tobacco companies and apartheid governments on one hand with defending some indigent defendant who has been accused — perhaps unjustly — of doing something unpopular, in a single case.

Posted by: Joseph Slater | Jan 16, 2007 3:20:06 PM

One other point of disanalogy might be between civil and criminal proceedings. There is a strong professional norm (and constitutional protections in the form of court-appointed lawyers) for the right to have a zealous defense in criminal matters, and a concomittant duty (perhaps at the level of the profession rather than individuals) to represent criminal defendants, however distatestful. The legal ethicists may correct me, but it seems that the entitlement and concomitant duty are much weaker on the civil side. It is the moral duty of the profession to provide a lawyer to to defend the person indicted for hate speech, but not necessarily to represent them in a civil proceeding for wrongful termination if they have been fired for uttering racist comments. Of course, that just requires us to change the hypothetical. Would it make any difference to Harvard Law students if Ropes’ lawyers were representing a criminal defendant for gay-bashing pro bono rather than defending Catholic charities? One might rely on the idea that everyone deserves a zealous defense, but the obvious retort is that you do not have to be the person giving that zealous defense. But locating the duty in the profession rather than individuals may just cause us all to pass the buck…

Posted by: UN Owen | Jan 16, 2007 3:09:15 PM

Assume it could be shown that the Guantanamo detainees could be linked to Al Qaeda or another organized terrorist group (admittedly an assumption that may not apply in all the detainee cases, but ought to be made to test the real limits of Professor Slater’s distinction). Would it become less morally correct to defend a detainee if one could show his association with an organized and influential terrorist organization? Or do you have another meaning in mind for a “powerful” enterprise?

It seems to me that the moral case to be made for defending such a person, if it exists, doesn’t derive from how connected that person is to “powerful” enterprises. And if that distinction doesn’t hold up, while it’s certainly true that many people take discrimination against homosexuals seriously, lots of folks take terrorism fairly seriously too.

Posted by: md | Jan 16, 2007 2:39:02 PM

Interesting post and issue. Over at the Volokh Conspiracy, some commenters (not the regular bloggers) have defended Stimson’s comments partly by claiming that liberals/leftists have attacked some individuals for representing, say, tobacco companies or other unsavory corporate clients. I remember a protest when I was a student at Michigan Law ( back in the mid-80s) against a firm (Kirkland & Ellis, maybe?) that represented South Africa’s then-apartheid government. Opponents of that protest objected, don’t unpopular folks have a right to representation?

Rick notes one obvious distinction: there’s a difference between law students saying, “look who you may be working for if you go to X law firm,” and a government official encouraging a boycott of certain law firms because they represent clients who are litigating against the government.

But Rick is also right, I think, to note that one could claim some inconsistency among some folks, at least if the base principle is “everybody — no matter how unpopular — deserves a defense.”

One response is to bring the concept of “power” into it. You could make a moral distinction between volunteering time to the relatively powerless whose rights may have been violated in significant ways in one particular case on the one hand, and being on-going counsel to a relatively powerful enterprise that routinely acts illegally or in a way that is generally considered immoral or anti-social on the other.

That worked for me for South Africa. Rick gives a different example — that of Catholic Charities — and let me stress I’m not comparing that organization to the old South African regime. But some folks do take discrimination against gays and lesbians as a very serious matter, and I think they are right to do so.

Posted by: Joseph Slater | Jan 16, 2007 1:31:26 PM