Law

Last week “I said”:https://crookedtimber.org/2005/10/03/harriet-the-justice/ I didn’t know anything about Harriet Miers, but figured that while she would certainly be a staunch Bush loyalist, she would likely not be incompetent or a pushover. I think now I was being a bit optimistic, or at least not precise enough. I still think Miers isn’t an incompetent pushover, in the narrow sense that she’s probably pretty good at the job she currently occupies. It’s just that she has no real qualifications at all for a position on the Supreme Court, and there’s no getting around that. “Mark Schmitt”:http://markschmitt.typepad.com/decembrist/2005/10/souter_or_kerik.html gets it right here, by noting the curious parallel to the previous round of nominations to the Appeals Court:

The one and only thing to remember about Miers is that she is totally unqualified to sit on the Supreme Court. … there’s nothing there. Take away the George W. Bush-loyal-staffer aspect of her resume, and there’s absolutely nothing except some modest corporate law-firm and bar-association management, skills that are of no relevance to the Court. …

The reason this is so important to say goes back to the fight over the Nuclear Option and the nominations of Janice Rogers Brown and Priscilla Owen last spring. One of the big underlying questions then was whether a judicial nominee’s ideology, even way-out-of-the-mainstream ideology, could be a factor in confirmation. A number of us warned at the time that any deal that let an Objectivist crackpot like Brown go through would set the bar for extremist ideology so low that in effect, ideology could never be a factor.

… And that’s why it’s so important to be frank about Miers’s qualifications. Miers is to qualifications exactly what Brown and Owen were to ideology. She sets the bar so low that if she’s considered qualified, then who — other than, say, Jack Abramoff — is not qualified? If Miers is confirmed, it effectively establishes that neither qualifications nor ideology should be a factor in confirmation.

In the meantime, at least it’s been fun to watch the pseudo-libertarian lawyers suddenly shocked — schocked! — as they realize what everyone else already knows about the Bush administration and its appeasement of the hard right. They cheerfully helped feed the crocodile for the past few years in the hope of being granted a few seats on the bench. (Civil liberties? No problem! Torture? Too unpleasant to discuss publicly!). Now find that they’re the ones who have been tossed into its mouth.

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I know absolutely nothing about “Harriet Miers”:http://www.cnn.com/2005/POLITICS/10/03/scotus.miers/index.html, the new nominee to the Supreme Court, beyond the fact that she’s from Texas and is White House Counsel. But I think those two facts suggest we can be fairly confident in the following: (1) She’ll be a strong Bush loyalist. That follows just from the way this administration works in everything it does. (2) However, the fact that she’s a woman leads me to think that, unlike the likes of Michael Brown, she’s also competent and probably a pretty tough person. It’s hard to get to this point in U.S. politics without having those qualities if you’re a woman. I don’t expect to like many of her legal views, and I’m sure there are better candidates. But I’d be surprised if her confirmation hearings showed her to be clueless or a pushover.

There doesn’t seem to be a lot of blogospheric comment yet about the more surreal aspects of the British governments “intention”:http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/09/16/nterr16.xml to “criminalize”:http://politics.guardian.co.uk/terrorism/story/0,15935,1571350,00.html the “glorification” of terrorism. Saying that a particular terrorist act or event was a good thing is set to be a criminal offence unless the event was more than 20 years ago, except that the Home Secretary will draw up a list of older events the “glorification” of which will also be an offence. So far there’s no clear indication of what will be on the list except the suggestion that glorifying the Easter Rising of 1916 or the French Revolution (1789-whenever you think it ended) will not be illegal. Will it be illegal to praise the following events?

* The Irgun bombing of the King David Hotel (1946)

* Any bombings or shootings by the Baader-Meinhof gang.

* ETA’s assassination of Prime Minister Carrero Blanco in 1973

* Any acts of Palestinian terrorism.

* The assassination by Mossad of Palestinian leaders in foreign countries.

* The assassination of any member of the Nehru-Gandhi dynasty.

* The sinking of the Rainbow Warrior by the French secret service in 1985.

However repusive it may be to praise some of these acts, it is just incompatible with a free society for it to be in some politician’s gift to decide which historical events it is or isn’t acceptable to “glorify”.

I hesitate to come over all Mel P here, but I was astonished to read “the following bit of opportunism”:http://www.lawgazette.co.uk/news/breaking/view=newsarticle.law?GAZETTENEWSID=252206 in the Law Society Gazette from the Solicitors’ Pro Bono Group:

bq. The government should not profit from compensation payments made to victims of the London bombings when its own policies may have contributed to the attacks, the Solicitors Pro Bono Group (SPBG) claimed last week. SPBG acting chief executive Robert Gill said that lawyers had not provided advice to victims free of charge ‘so that the government could save money’. ….

bq. ‘It is normal for CICA payments to be taken off benefits, but in these circumstances it should be different. It is about a particular set of actions which in part were brought about by the fact that Britain has taken a prominent role in Iraq – which was a government decision. Government action is part of the reason [for the events], so it is not fair that the government should benefit from private citizens who are injured.’

The government quite reasonably insists that the same rules apply for all Criminal Injuries compensation cases and that bomb victims should be treated the same as everyone else.

I haven’t been following the buildup to the Roberts hearings closely, but today, “via Bitch PhD”:http://bitchphd.blogspot.com/2005/09/and-theyre-off.html, I see this analysis from the NYRB:

Roberts was in favor of limiting the progress of African-Americans in participating in the political process and of making far-reaching changes in the constitutional role of the courts in protecting rights. … Roberts conceded that the equal protection clause of the Fourteenth Amendment could pose a formidable barrier to legislation intended to strip the federal courts of jurisdiction over cases involving school desegregation. But, he noted, the problem might be surmounted, since strict scrutiny would be applied only if there were “racial classification,” and the legislation in question would only classify cases by type, i.e., not “race” but “school desegregation.” Giving state courts the final say over school desegregation, he added, *would not involve unequal treatment because white officials as well as black groups would lack the right to appeal*. … Nowhere in any of the memos that have been made available did John Roberts acknowledge the effect of the many years of disenfranchisement on black citizens. Instead his concern was about the effect of an imagined quota system on whites, a concern that twenty-five years later has proved to be groundless. (Emphasis added.)

I’d be interested to see the original text that this paraphrases. It looks like it was just lifted directly from Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread.” Or sue under the fourteenth amendment. It’s hard to imagine someone with an education like Roberts’ writing that sentence and not immediately thinking of France’s epigram. Maybe he smirked.

Here are some people who have to lose their jobs, and maybe also get sued for wrongful death. Or go to jail.

1. Whoever is in charge of Louisiana’s state office of Homeland Security, maybe it’s this Major General Bennett C. Landreneau? Whoever it was who made the decision not to let the Red Cross into New Orleans. This person needs to lose his job, and he’s on my “get sued into the ground and maybe go to jail” list. If my baby had died of dehydration in the Superdome, I would be ready to kill this guy.

2. Whoever it was who gave the Gretna police orders to turn people back at gunpoint and prevent them from walking out via an Interstate to a shelter 2-3 miles away in Jefferson Parish. The Gretna Police Chief (Chief B.H. Miller, UPDATE: Arthur Lawson, guilty as charged.)? The mayor (Ronnie Harris)? Again, fuck these bastards. I’m not even that sympathetic to the policemen on the front lines obeying these orders. Is it even legal for local police to ban citizens from using public roads? I imagine there is leeway for emergency situations, but if no orders came down from above? If they did get an order from higher up, fire that bastard too.

3. Governor Kathleen Blanco. I have seen nothing to convince me that she has been at all competent in dealing with this catastrophe.

Officials in Louisiana agree that the governor would not have given up control over National Guard troops in her state as would have been required to send large numbers of active-duty soldiers into the area. But they also say they were desperate and would have welcomed assistance by active-duty soldiers.

“I need everything you have got,” Ms. Blanco said she told Mr. Bush last Monday, after the storm hit.

In an interview, she acknowledged that she did not specify what sorts of soldiers. “Nobody told me that I had to request that,” Ms. Blanco said. “I thought that I had requested everything they had. We were living in a war zone by then.”

Look, I think the feds are hiding behind a fig-leaf of federalism on this one. When she said “we need all the help you can give”, the 82nd Airborne should have been there the next day. Nonetheless, whatever i’s she had to dot or t’s to cross, she could have damn well figured out herself before the hurricaine hit, like, I don’t know, when she first got into office? Likewise, she could have put everyone in the same room and knocked heads together earlier to get some kind of unified effort going. Crying about how you’re dissappointed in looters don’t cut it.

4. Michael Brown, FEMA head. I don’t think I need to say anything here.

5. Michael Chertoff, head of DHS. There was a pop quiz on homeland security last week. He failed.

6. President Bush. There’s no point in suggesting that he resign or be impeached, since I might as well just wish that everyone had a pony. Still, we can try our best to hold him morally responsible for hiring incompetent political apparatchiks to do crucial jobs, and for manifestly failing to mobilize federal resources in a timely way once the scope of the disaster (that includes local failings too) was known. The buck has to stop somewhere, and I think the President’s desk seems a likely place. He will never run again, and the only punishments he can receive will be moral opprobrium, diminished political influence, and a severe hit to the electoral chances of his party. I suggest he receive them all.

UPDATE: I think it should be obvious that I listed these people in bottom-up hierarchical order, not decreasing-level-of-blame order. (Perhaps, in that case, 1 and 2 should be reversed, but you see my general thrust.) Someone who has 1000 gallons of water is more to blame when someone near her dies of thirst than someone with 1 gallon. The locals were overwhelmed and the feds should have stepped up to the plate, not complained about the mysteries of federalism. That doesn’t mean Gov. Blanco magically did a great job, or Jefferson Parish officials weren’t a bunch of racist bastards.

This paragraph in a “post”:http://www.volokh.com/archives/archive_2005_08_07-2005_08_13.shtml#1123523518 by Andrew Morriss, guestblogging with the Volokhs, struck me as saying some pretty odd things about publication policies in the legal academy.

bq. There are huge problems with the U.S. News rankings but there is no question that they are important. For example, a friend recently told me that she had been called by a law review about one of her manuscripts. The articles editor apologized for rejecting the manuscript and explained that the rejection had been made without reading the paper because the editors had mistakenly misclassified my friend’s school as being in a lower tier law school. Now that they realized their error, the editor told her, they wanted to consider the article on the merits. I don’t know how widespread this type of screening is, but that it occurred at a well-ranked, but not top journal is at least moderately disturbing.

Now I know that there are a lot of complaints among legal academics about the dominant role of student-edited law reviews. But (if this is at all representative), I hadn’t realized quite how bad the problem was. It’s not (as Micah has “argued previously”:https://crookedtimber.org/2004/10/25/dont-blame-the-law-students-a-reply-to-posner ) the fault of the students editing these reviews – when you have so many article submissions that you’re literally unable to read them all (thanks to the practice of multiple submissions), you’re inevitably going to have some more-or-less unfair metric for deciding which ones to read, and which ones not to. The problem is a structural one. But it does suggest that it’s going to be a lot more difficult for a smart legal academic in a second or third tier school to improve her position by publishing material in good journals, than it would be if she were, say, a political scientist or a sociologist. If her school’s position in the rankings counts against her chances of getting published, she may find herself in a Catch-22 situation; the only way to get published in good journals is to improve her personal name-recognition (since her school won’t help), but the only way to improve her personal name-recognition is to get published. Blind peer review, which is the norm across most of academia, does serve as at least a modest corrective to mutually reinforcing hierarchies in journals’ publication records and department rankings. It’s possible, albeit difficult, to publish your way up. As an aside, I wonder whether the importance of name-recognition to legal academics helps explain why “so many”:http://prawfsblawg.blogs.com/prawfsblawg/2005/06/law_professor_b_1.html of them have started blogs – blogging is a cheap and easy way to make your name familiar to the editors of law reviews.

Update: “Steve Bainbridge”:http://www.professorbainbridge.com/2005/08/a_law_review_pu.html is seeking to test whether law review editors do indeed read law blogs, by soliciting “bids” for a recent article that he’s written. He’s already received an offer from a journal in the top 35-40 range.

My friend and colleague Jimmy Doyle has a guest post on Normblog: “Human Agency and the London Bombings”:http://normblog.typepad.com/normblog/2005/08/human_agency_an.html . I hesitate to summarise Jimmy’s argument here, since it is stated with characteristic carefulness and precision, but among the more striking claims he endorses is that genuine human actions cannot figure among the causes of other human actions:

bq. human actions cannot be thought of as mere events in a causal chain of further events. This is expressed in the traditional legal doctrine of _novus actus interveniens_ , according to which a human action cuts short the chain of causally-connected events consequent upon any previous action. For the cause of a human action is not an event at all, but an agent: a person, a human being.

I am not putting a counter-argument, but merely making an observation, in saying that if Jimmy’s view is correct then much of social science and history rests on a mistake. Economics and psychology, for example, certainly presuppose that one person’s action can figure among the causal antecedents of another’s. And all those books on the “causes” of the First or Second World Wars would have to be pulped or substantially rewritten.

Jimmy advances this consideration in favour of his view:

bq. I should emphasize that I have not tried to show that what is presupposed in our ordinary thought and talk about human action is true. But if it turned out false, that would be a disaster; and we would very likely find it impossible to lead recognizably human lives consistent with such a realization.

I suspect that we would find it a good deal easier than he supposes to lead “recognizably human lives”, but let’s leave that to one side. The examples of history and social science show that whilst Jimmy may be right to say that we engage in much thought and talk about human action which rests on the very presuppositions he mentions, we also engage in a great deal of talk about human behaviour that rests on the causal view he rejects. Very likely we would find it hard to get along without that mode of thought and talk too.

Marty Lederman has an “extraordinary post”:http://balkin.blogspot.com/2005/07/heroes-of-pentagons-interrogation.html at _Balkinization_ detailing “six memos”:http://balkin.blogspot.com/2005/07/jag-memos-on-military-interrogation.html from Judge Advocate Generals in the armed forces that have just been declassified. The memos make it quite clear that the decision to provide a legal opinion that whitewashed “extreme interrogation techniques” encountered considerable resistance from the armed forces legal services, who saw it as overturning longstanding US armed forces policies which committed the US to take the “high road.” The armed services’ opinions were sidelined, in favour of John Yoo’s memo, which seems to have closed the debate and cleared the way for the later abuses which did indeed take place.

There’s a strong case to be made that what happened at Guantanamo and Abu Ghraib, along with other abuses (the outsourcing of torture through “extraordinary rendition” and other legal dodges; the probable use of even more extreme techniques by the CIA) are war crimes. Under current political circumstances, there is no likelihood that they will be prosecuted as such. But one could also argue that administration lawyers who provided dubious legal opinions that were then predictably used to provide a spurious patina of legitimacy to illegal acts, were engaged in unethical activity. There was a kerfuffle a few months ago about lawyers who provided legal opinions that gave cover to dodgy tax-avoidance schemes; giving legal cover to torture seems in principle to be rather more problematic. Here’s my question (and I don’t know the answer to it). Does this kind of activity constitute the kind of ethical malpractice that can and should be sanctioned by relevant professional associations (i.e. bar associations)? My guess is that there’s a grey area here, but I would be interested to hear from those who have direct knowledge of how disciplinary sanctioning works in the law.

Update: A reader reminds me that Scott Horton of Columbia University Law School has argued that the relevant disciplinary authorities should investigate the authors of these memos.

In a June 8, 2004 “article”:http://texscience.org/reform/torture/ (scroll down), Neil A. Lewis and Eric Schmitt of the _New York Times_ reported that,

bq. Scott Horton, the former head of the human rights committee of the Association of the Bar of the City of New York, said Monday that he believed that the March memorandum on avoiding responsibility for torture was what caused a delegation of military lawyers to visit him and complain privately about the administration’s confidential legal arguments. That visit, he said, resulted in the association undertaking a study and issuing of a report criticizing the administration. He added that the lawyers who drafted the torture memo in March could face professional sanctions.

My reader, who wishes to remain anonymous, said that he consulted experts on legal ethics last year about the prospects for disciplinary sanctions. While there is mixed opinion on the scope of the relevant rules, and some doubt over whether the disciplinary authorities would take up a case of this kind in practice, there does seem to be at least a reasonable argument that the rules _could_ be interpreted to sanction this kind or behavior.

Over the past few hours we’ve had a little trouble with the server — apologies to our readers: it should be fixed now. In the course of trying to diagnose and repair the problem, I was looking through our log files and I noticed some search queries that made me feel a bit queasy. About a year ago, Belle wrote a post called “The La Perla Exception”:https://crookedtimber.org/2004/04/02/the-la-perla-exception/, which discussed the legal problems associated with drawing a line between pictures of naked children (e.g., canonical baby-in-the-bath-with-rubber-ducky photos) and child pornography. Just in the past 24 hours or so, we’ve had eleven hits on that page via google. According to “GeoBytes”:http://www.geobytes.com/IpLocator.htm, the originating IPs for these searches were in places as various as Bangalore, Chennai (also in India), Rio De Janeiro, Burnaby (in British Columbia), Oscoda (Michigan), Cabot (Arkansas), Bridgeport (Connecticut) and Tampa (Florida). Of these searches, two appeared legitimate — “debate+child+pornography” and “what+constitutes+child+porn.” The rest were queries like “European+Child+nudity+pictures”, “child+models+nude” (several variants of that one), and “small+girls(12-15+years)+sex+pics.” Because the La Perla post is so old, I’ve no reason to think this trickle of sewage isn’t typical. The searches represent just under one percent of referrals to CT from distinct google queries in 24 hours. That’s pretty low, I suppose. But, then again, it’s not as if Crooked Timber has much in the way of content that would attract pedophiles. Imagine what many other sites — never mind Google itself — must be seeing.

Via “Tim Lambert”:http://timlambert.org/2005/07/lott-libels/, some evidence that these two properties might still be orthogonal. Tim reproduces an email exchange between John Donohue and a representative of the Federalist Society’s chapter at University of Chicago. They are trying to organize a debate between Donohue and the awful John Lott, but they fail through a sequence of scheduling problems exacerbated by Lott’s efforts (on his blog) to make it look like Donohue is afraid to face him in public. You have to give the Federalist Society person credit for an evenhanded and respectful demeanor in the face of relentless provocation from Lott’s trademark mix of misrepresentation, slander and evasiveness. Eventually the head of the Chicago chapter writes to Donohue telling him they’ve withdrawn Lott’s invitation to speak because of his repeated refusals to remove the libels of Donohue from his blog. So full marks to them for being on the up-and-up. The fact that the American Enterprise Institute remain happy to have Lott as a senior fellow, on the other hand, speaks for itself at this point.

An anonymous correspondent (signing himself only as “The Moor”) sends me two snippets from what he assures me is a section of the majority opinion in “Kelo vs New London”:http://straylight.law.cornell.edu/supct/html/04-108.ZS.html that was cut at the last minute:

You are horrified at our intending to do away with private property. But in your existing society, private property is already done away with for nine-tenths of the population; its existence for the few is solely due to its non-existence in the hands of those nine-tenths. You reproach us, therefore, with intending to do away with a form of property, the necessary condition for whose existence is the non-existence of any property for the immense majority of society. In one word, you reproach us with intending to do away with your property. Precisely so; that is just what we intend. From the moment when labour can no longer be converted into capital, money, or rent, into a social power capable of being monopolised, i.e., from the moment when individual property can no longer be transformed into bourgeois property, into capital, from that moment, you say, individuality vanishes. You must, therefore, confess that by “individual” you mean no other person than the bourgeois, than the middle-class owner of property. This person must, indeed, be swept out of the way, and made impossible.

And another:

bq. In fact, this proposition has at all times been made use of by the champions of the state of society prevailing at any given time. First comes the claims of the government and everything that sticks to it, since it is the social organ for the maintenance of the social order; then comes the claims of the various kinds of private property, for the various kinds of private property are the foundations of society, etc. One sees that such hollow phrases are the foundations of society, etc. One sees that such hollow phrases can be twisted and turned as desired.

Especially the ones with tenure. I mean, why bother? A variety of answers from “Paul Horwitz”:http://prawfsblawg.blogs.com/prawfsblawg/2005/05/why_i_write_no_.html, “Eric Muller”:http://www.isthatlegal.org/archive/2005/05/why_i_write.html, “Orin Kerr”:http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1116957530, “Michael Froomkin”:http://www.discourse.net/archives/2005/05/why_i_write_legal_scholarship.html and “Michael Madison”:http://madisonian.net/archives/2005/05/18/why-write/. I feel the question is missing a few words at the end. It should of course read “Why do Law Professors write 50,000 word articles?”

A long article in New York magazine about “Lawrence Lessig’s participation in a lawsuit”:http://newyorkmetro.com/nymetro/news/features/12061/index.html against “the American Boychoir School”:http://www.americanboychoir.org/movie.html. A teacher at the school molested boys during the 1970s and Lessig, a former head boy at the school, was one of the victims. He’s now arguing the case in front of the New Jersey Supreme Court. The crux of the lawsuit is whether the school can be held responsible for the actions of its abusive employees. (They’ve settled cases in the past.) I remember seeing the American Boychoir tour bus around Princeton quite regularly. The place is is just down the road from campus. The school is arguing that it is in no more responsible for the actions of the abusers it employed than it would be for employee “stopping in a bar after work and slugging someone in the mouth. ‘Is the company responsible?’ [the school’s lawyer] asks. ‘No. Why not? Because they’re not acting within the scope of employment.'” That seems like a weak analogy. In this case the employee was in a position to repeatedly abuse his victims in virtue of his role and the authority it carried. The school’s defence seems to come perilously close to arguing that it can’t be held responsible for _any_ illegal action that a teacher perpetrated on a pupil, because of course illegal actions are not within the scope of the teacher’s employment.

I don’t know about the legal merits, of course, but on the basis of their past experiences, together with the evasions and blame-the-victim insinuations from the school’s President and its chief lawyer, it’s easy to see how the litigants’ could have a desire to raze the institution to the ground.