Law

Alan Dershowitz never disappoints, does he?

bq. It is a close question whether “civilians” who agree to participate in the breaking of a military blockade have become combatants. They are certainly something different from pure innocents, and perhaps they are also somewhat different from pure armed combatants.

I like that “perhaps”, as if it might turn out, after further legal cogitation by the professor, that torpedoing or bombing the convoy would be a legitimate act.

The Times has an “obituary for J.A.G. Griffith”:http://www.timesonline.co.uk/tol/comment/obituaries/article7130873.ece , whose _The Politics of the Judiciary_ was required reading for a whole generation of students of politics and law. A sad loss, and especially at a time when there are renewed signs of judicial activism against the trade union movement in the UK.

British Tory-lite deputy-PM Nick Clegg, has announced a very limited programme of democratic and civil-libertarian reform in the following terms:

bq. I’m talking about the most significant programme of empowerment by a British government since the great reforms of the 19th Century. The biggest shake up of our democracy since 1832, when the Great Reform Act redrew the boundaries of British democracy, for the first time extending the franchise beyond the landed classes. Landmark legislation, from politicians who refused to sit back and do nothing while huge swathes of the population remained helpless against vested interests. Who stood up for the freedom of the many, not the privilege of the few.

Over at The Virtual Stoa, “Chris Brooke asks”:http://virtualstoa.net/2010/05/19/its-exam-season/

bq. If you were marking examination papers on nineteenth century British political history, what mark would you give someone who described the 1832 Reform Act in these terms?

Indeed. And see especially, Ted Vallance’s response in comments to Chris’s post.

The struggle of the suffragettes for female emancipation, the extension of the franchise after WW1, all are as nothing compared to Clegg’s plans to curb CCTV cameras and biometric passports ….. An elected second chamber, sounds good. Electoral reform – subject to a referendum in which the dominant party in the coalition will campaign for the status quo. Talk about overselling yourself.

Via Yglesias, Dave Weigel takes a look at the new Maine GOP platform, which ain’t exactly Olympia Snowe all over. But neither of them mentions how the authors of this document take the text of the Preamble to the Constitution and wrench it around in ways contrary to an originalist reading of the text. Example: in order “to insure Domestic tranquility”, the Maine GOP prescribes “a. Promote family values. i. marriage is an institution between a man and a woman. ii. Parents, not government, are responsible for making decisions in the best interest of their children, whether disciplinary, educational, or medical. iii. We recognize the sanctity of life, which includes the unborn.”

Here I was, thinking the Framers were worried about Shays’ Rebellion-type stuff.

Igor Volsky rounded up some conservative muttering. This bit seems to me a bit off, however:

But the GOP can’t ask Kagan to be both a constitutional originalist and an opponent of the new health care law. In fact, given the long-standing Supreme Court precedent surrounding the federal government’s ability to regulate interstate commerce, should Kagan agree with Republicans’ claims that the lawsuits violate the 10th amendment, she would be seen as a judicial activist.

The point, rather, should be that conservatives can’t ask Kagan to be a constitutional originalist – and decide the health care case in the negative on that basis – without highlighting the fact that originalism gives no weight to precedent and is not an attitude of deference to the legislative branch. There’s no guarantee the original meaning was what precedent has long said it is. It would not exactly be a surprise if legislators today are doing things the framers didn’t have in mind.

‘Let justice be done, though the heavens fall’ is supposed to be the motto of the judicial activist advocate of a ‘living constitution’; but the more usual sort of ‘living constitution’ attitude is slightly backwards-looking Burkeanism: respect precedent. Rule out the former, you rule out the latter. ‘Let a 200-year old conception of justice be done, though the heavens fall’ is not a better way to keep the heavens from falling and is, in fact, plausibly more likely to let them fall. (It isn’t all that preposterous that strict originalism would rule out paper money, after all. There are a lot of words you might use to describe the court unilaterally ruling that all US dollars are not legal tender, but ‘restrained’ is not high on that list.) If what you want most is judicial restraint, and no activist judges, originalism is near to the worst of all possible judicial philosophies.

This is not to say that originalists can’t find ingenious ways to square the circle, making space for precedent by adding sophisticated additional premises and superfine epicycles to their philosophies. Scalia has done so: “I’m a conservative, I’m a textualist, I’m an originalist, but I’m not a nut.”

Originalism is a philosophy of fiery revolution, wrapped in a rhetorical shell of keeping everything the same. (That’s what American conservatism is, too, in a nutshell. That’s why Americans are philosophical conservatives but operational liberals, come to think of it. But maybe that’s too much for one post.)

This piece by Paul Campos makes the point, not for the first time, that Elena Kagan’s public record is so thin as to make it impossible to guess how she might decide as a Supreme Court judge. While this question is important, another strikes me.

How does someone whose vita contains “three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces”, and who had apparently never appeared in a courtroom before last year, get to be Dean of Harvard Law School and then US Solicitor-General[1]? Even confining myself to law journals and popular pieces on legal topics, I could match that track record. I once even exercised a quasi-judicial function in my career as a regulator, which is more than Kagan has done.

In view of Kagan’s apparently inevitable promotion, can I put myself forward as her replacement? I guess the Harvard gig is already taken, but I’m sure I’d be a great Solicitor-General. All my friends say I”m “brilliant”, and have “many remarkable qualities”. Some will even go as far as “scrupulously fair-minded” .

fn1. For comparison, here’s the publication list for Kathleen Sullivan, reputedly the runner-up for the S-G job.

I just listened to an EconTalk podcast interview with Richard Posner about his new book, A Failure of Capitalism: The Crisis of ’08 and the Descent into Depression [amazon]. The book has gotten a bit of buzz for the way in which Posner semi-recants certain libertarian or Chicago-style economics positions he is known for. But certain other positions he has not recanted, such as his narrow view of economic actors’ duties to consider negative externalities of their activities (discussed at CT before here and here). In the podcast, Posner basically asserts that those actors in the financial sector who almost crashed the world economy were right to do so, in the sense that it was rational for them, individually, to be massive ‘risk polluters’ (to coin a phrase someone else has probably coined already.) He would probably go further, although he isn’t actually asked to in the podcast: some of these actors were obliged to take the risk. In at least some cases it would have been their strong, positive fiduciary duty, under the circumstances, to do something which – taking a larger view – seriously threatened to run the whole world economy off a cliff. Because that was the apparent route of profit-maximization. It was their job not to take the larger view. Posner blames regulators, not these profit-maximizing actors, for the market failure; for not seeing that the damage to everyone downwind of all that toxic risk was so great that it should not have been permitted. [click to continue…]

“This Boston Review piece”:http://bostonreview.net/BR34.6/barry.php by Tom Barry is very much worth reading, as a background briefing to the “prison funding shenanigans”:http://tpmmuckraker.talkingpointsmemo.com/2009/10/behind_hardin_jail_fiasco_private_prison_salesmen_prey_on_desperate_towns.php recently described by _Talking Points Memo._

These immigration prisons constitute the new face of imprisonment in America: the speculative public-private prison, publicly owned by local governments, privately operated by corporations, publicly financed by tax-exempt bonds, and located in depressed communities. Because they rely on project revenue instead of tax revenue, these prisons do not need voter approval. Instead they are marketed by prison consultants to municipal and county governments as economic-development tools promising job creation and new revenue without new taxes. The possibility of riots usually goes unmentioned. … Initially, most speculative prisons were privately owned, a case of the federal government outsourcing its responsibilities. But prison outsourcing is rarely that simple anymore. The private-prison industry increasingly works with local governments to establish and operate speculative prisons. Prison-town officials have a mantra: “If you build a prison the prisoners will come.”

Most of the time, these public-private prisons are speculative ventures only for bondholders and local governments, because agreements signed with federal agencies do not guarantee prisoners. For the privates, risks are low and the rewards large. Usually paid a set fee by local governments to operate prisons, management companies have no capital investment and lose little, other than hefty monthly fees, if inmate flows from the federal government decline or stop.

… Prisons are owned by local governments, but local oversight of finances is rare, and the condition of prisoners is often ignored. Inmates such as those in Pecos are technically in the custody of the federal government, but they are in fact in the custody of corporations with little or no federal supervision. So labyrinthine are the contracting and financing arrangements that there are no clear pathways to determine responsibility and accountability. Yet every contract provides an obvious and unimpeded flow of money to the private industry and consultants.

The piece isn’t perfect – it can’t quite decide whether it is a story about the problems of the prison system or about the problems of the US approach to immigration. The two are of course closely connected, but each is very complicated in its own right, and trying to explain both at once makes for a top-heavy account. I would also have liked to have seen more aggregate data to support the specific arguments that the author is making (I suspect though that one of the problems with keeping this metastasizing system under control is that there isn’t any source of good general data out there). But it is an eye-opening piece of investigative journalism, looking at a story that doesn’t get nearly as much attention as it deserves. Recommended.

Being the second part of my reply to “Eric Posner”:http://volokh.com/2009/10/26/bloggingheads-cont%E2%80%99d/ …

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Eric Posner has “two”:http://volokh.com/2009/10/27/reply-to-henry-farrell-part-ii/ “responses”:http://volokh.com/2009/10/26/bloggingheads-cont%E2%80%99d/ to my earlier post on international law. I’ll be writing two responses to the responses – the first (on Eric’s second rebutting post) beneath the fold [click to continue…]

“Gideon Rachman”:http://blogs.ft.com/rachmanblog/2009/10/the-goldstone-report-and-international-law/

I thought the FT leader on the Goldstone report got it about right. The report on Israel’s assault on Gaza is a serious bit of work and it’s fairly desperate to try to discredit it by calling its author a “self-hating Jew”. The bigger problem lies with the UN Human Rights Council … And lying behind that, is a still bigger problem with the very idea of impartial international law. … I asked whether international law really deserved the same status as domestic law? After all, the very basis of justice in a nation-state is equality before the law – anybody who commits a murder should be arrested and prosecuted, no matter how powerful they are. But this basic principle does not apply in the international arena. Almost all the people hauled before the ICC have been African leaders; and the UN special tribunal on the former Yugoslavia (where Goldstone was chief prosecutor) only got to prosecute the likes of Milosevic because Serbia was defeated in a war. … The trouble is that … the system of international law that we currently have is as much about power in the international system, as about human rights or the law.

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Just a brief note about one of my side projects, the Territory and Justice Network. Cara Nine (UC Cork) and I have been funded by the Arts and Humanities Research Council (UK) and the Irish Research Council for the Humanities and Social Sciences for this project. We’ve now had a couple of conferences. The first, in London back in February and now a little workshop in Novi Vinodolski, Croatia last week. We’ve now launched a blog for the project, which is my reason for posting here. Pay us a visit if you are interested in territory, justice, secession, migration and similar issues (especially from a political philosophy standpoint). And drop me a line if you’d like to become involved in the network in some way.

Steve Benen ponders John Boehner on hate crimes: “The Democrats’ ‘thought crimes’ legislation … places a higher value on some lives than others. Republicans believe that all lives are created equal, and should be defended with equal vigilance.” Benen: “if Boehner doesn’t want to consider the circumstances behind a violent crime, and doesn’t want to pursue “thought crimes,” then he’d necessarily reject the rationale behind every hate-crime law, right?” Benen goes on to note that, apparently, Boehner does not. He “supports existing federal protections … based on immutable characteristics.” Which Boehner thinks include religion, but not sexual orientation. Who knew?

There is, I think, an even more basic problem, which is theoretically interesting, which I would certainly like to see used to swat down Boehner-style arguments, and which I’ve never actually seen anyone make (but probably I just missed it). Practically all crime is ‘thought crime’ in the good ol’ common law sense of the Latin phrase actus non facit reum nisi mens sit rea – ‘the act does not make guilt unless the mind be guilty.’ If we were to take a strict liability approach to all violent crime we would be obliged to place wrongful death on a par with premeditated murder. (After all, it’s not as though the lives of those killed accidentally are worth less.)

This refutes the notion that there is something sinister and Orwellian about post-Drakonic/post-Hammurabian developments in criminal law. (Damn liberals and their newfangled political correctness!) It doesn’t follow that ‘hate crime’ legislation makes moral and practical sense, of course. We could have that discussion after Boehner is done looking up ‘immutable’ in the dictionary.

I was kind of surprised to see that the wonderful Tom Russell has a long essay on some new blog called The Rumpus, all about Juarez, El Paso, drug wars, borderlands, corruption, et cetera. I love his music, and I like his writing too, so I’m always pleased to see some more of it. The content, though, the content is shocking.

bq. I turned that page in section B where there was a short item about two El Pasoans slain yesterday in a Juarez bar shooting. Back page stuff. Hidden near the end of the story was the astounding body count: _nearly 2900 people, including more than 160 this month alone, have been killed in Juarez since a war between drug traffickers erupted January 2008_ . John Wesley Hardin wouldn’t stand a chance.

Jesus. You’re probably safer in Kandahar.