Law

I am hosting a “discussion”:http://firedoglake.com/2009/03/29/fdl-book-salon-welcomes-steven-m-teles-the-rise-of-the-conservative-legal-movement/#comments on Steve Teles’ book on the rise of the conservative legal movement at _FireDogLake._ We will be having a CT Seminar on the book in a couple of months, so if you want to get a flavor of it, drop on by now (or buy the book at “Amazon”:http://www.amazon.com/gp/product/0691122083?ie=UTF8&tag=henryfarrell-20&linkCode=as2&camp=1789&creative=390957&creativeASIN=0691122083 or “Powells”:http://www.powells.com/partner/29956/s?kw=teles%20conservative%20legal%20movement. Also check out Rachel Morris’s “article”:http://www.washingtonmonthly.com/features/2009/0903.morris.html in the _Washington Monthly_ which draws heavily on Steve’s research (and provides a nice summary of it).

Just a quick follow-up to my Toy Story post, which got some good comments. [click to continue…]

Chief Justice Roberts misplaces an adverb; Obama realizes this, pauses to give him the opportunity to correct the error; Roberts realizes what he has said, corrects himself; Obama nods to acknowledge the correction, smiles, and repeats what Roberts originally said rather than drag things out further.

The text in the Constitution is, “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Donated Kidney is Center of Divorce Dispute:

A Long Island doctor is demanding that his estranged wife give him back the kidney he donated to her seven years ago. Dr. Richard Batista’s lawyer Dominic Barbara says his client would also be satisfied with the value of the kidney: $1.5 million. Newsday reports that Batista married wife Dawnell in 1990 and that he donated the kidney in 2001. According to Batista, their marriage was on the rocks then, but “My first priority was to save her life. The second bonus was to turn the marriage around.” Dawnell Batista filed for divorce in 2005. Dr. Batista told WCBS 880, “She had an affair, then would not reconcile, then handed me divorce papers as I was going into surgery trying to save another person’s life.

All in all the very archetype of a wacky organ donation story, right down to the mandatory quote from Arthur Caplan.

Much of the blogospheric chatter about “proportionality” in warfare has been characterized by disinformation of a rather systematic kind. That was the case in the recent Lebanon war, and it is happening again during the current Israeli operation in Gaza. At Opinio Juris, Kevin Jon Heller does an excellent job of explaining the legal issues by way of what it would be absurdly ironic (in this context) to call a thorough “Fisking” of Alan Dershowitz. As Brian Leiter (via whom) points out, the moral issues are also significant.

Update: I found “this BBC article”:http://news.bbc.co.uk/1/hi/world/middle_east/7811386.stm about who is legally entitled the benefit of the principle of noncombatant immunity quite useful.

Liberty, the British organization that campaigns for civil liberties and against state abuse of power, has a new website centred on the British government’s proposal to hold people without charge in terrorism cases for up to 42 days. Fortunately, the House of Lords has thrown the measure out for the time being, but they may well try to bring it back again. In the meantime, whether in celebration of the measure’s defeat or anticipation of its return, you can read the thoughts of a collection of writers including Ian Rankin, Julian Barnes and Stella Duffy (particularly good, I thought).

Larry Solum has just posted an update of his Legal Theory Lexicon entry on Distributive Justice. I keep telling (graduate and undergraduate) students that they need to look at the Legal Theory Lexicon as their first stop for just about any concept that Solum covers. Its really an amazing resource. A decade ago you’d have needed access to a very good library to get hold of something half as good; now, anyone might come across it just by browsing.

This is a follow-up to this post from Chris B., about “wanting not to get what you want”. I want to consider the converse (inverse, whatever it is) per my title. A paragraph from the Stanford Encylopedia of Philosophy entry for “Punishment”:

“To seek to be punished because one likes it, is pathological, a perversion of the normal response, which is to shun or endure one’s punishment as one might other pains, burdens, deprivations, and discomforts. (Only among the Raskolnikovs of the world is one’s deserved punishment welcomed as a penance.) To try to punish another without first establishing control over the would-be punishee is doomed to failure. But the power to punish — as distinct from merely inflicting harm on others – cannot be adventitious; it must be authoritative and institutionalized under the prevailing political regime.” [click to continue…]

The latest issue of the _Modern Law Review_ has an “article”:http://www3.interscience.wiley.com/cgi-bin/fulltext/120751054/HTMLSTART (by Phillip Johnson) about copyright law in the UK and US [access may depend on whether you or you firm or institution has a subscription] that suggests that it is harder for someone to give up a copyright than you might think. It would appear to have the implication that even where the creator of a work explicitly dedicates that work to the public domain, their estate might later revoke the license and seek to restrict use, demand payments etc. Alarming (but interesting) stuff. The conclusion:

bq. This article has shown that copyright owners cannot cause their copyright to cease to exist by dedicating it to the public. It is true that US authors may dedicate their US copyright to the public and in so doing cause it to cease to exist, but such a dedication will not have the same effect in relation to the equivalent UK copyright. In contrast, UK authors cannot take any steps which will cause their copyright to cease to exist. Instead, these dedications create licences, which can be withdrawn at any time. Such a withdrawal will bar new users from having access the work. But of more concern is that in England and the United States (and in Scotland, where the formalities for contract or promise are not satisfied) this will also terminate any rights existing users have by reason of the dedication. In which case, only where the conduct of copyright owners is so unconscionable that they are estopped (or barred) would the dedication have any continuing effect. This means that despite the desire of authors to dedicate their works to the public domain, the boundaries of that domain, uncertain as they already are, remain outside their control.

Bruce Western writes in the current Boston Review about the prison boom and its effects, summarizing findings and extending arguments he’s been developing for a few years, and which I’ve often written about here.

There are now 2.3 million people in U.S. prisons and jails, a fourfold increase in the incarceration rate since 1980. During the fifty years preceding our current three-decade surge, the scale of imprisonment was largely unchanged. And the impact of this rise has hardly been felt equally in society; the American prison boom is as much a story about race and class as it is about crime control. Nothing separates the social experience of blacks and whites like involvement in the criminal justice system. Blacks are seven times more likely to be incarcerated than whites, and large racial disparities can be seen for all age groups and at different levels of education. One-in-nine black men in their twenties is now in prison or jail. Young black men today are more likely to do time in prison than serve in the military or graduate college with a bachelor’s degree. … Nearly all the growth in imprisonment since 1980 has been concentrated among those with no more than a high school education. Among young black men who have never been to college, one in five are incarcerated, and one in three will go to prison at some time in their lives. The intimate link between school failure and incarceration is clear at the bottom of the education ladder where 60 percent of black, male high school dropouts will go to prison before age thirty-five. … These astonishing levels of punishment are new. We need only go back two decades to find a time when imprisonment was not a common event in the lives of black men with less than a college education.

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Sarah Waldeck has some thoughtful responses at Concurring Opinions to some of the comments made in the previous post as well as Larry Solum’s post on her paper.

I was lucky enough to see Martha Nussbaum give a lecture in Chicago a couple of weeks ago, based on her new book Liberty of Conscience: In Defence of America’s Tradition of Religious Equality (UK). I confess to having been a bit skeptical prior to the lecture. I always like reading Nussbaum’s work, and she’s a great speaker, but I’m not riveted by the topic, still less by historical investigations in philosophy, and am always put off by having the name of a country in the title (or subtitle) of a work of philosophy. The talk (and now the book) convinced me that I should be more open on all counts. She gave a fascinating account of the thought of Roger Williams, the founder of the colony of Rhode Island, and made a very convincing case that his arguments for freedom of religion anticipate, variously, two of Kant’s formulations of the Categorical Imperative, Rawls’s idea of the overlapping consensus, and Locke’s sharp claim (in the Letter) that the magistrate has responsibility for secular matters, but not for care of the soul. “Anticipation” must be the wrong word in at least Locke’s and Rawls’s cases, because she convincingly argued that Locke must have been aware of Williams’s arguments, and, although she did not argue this, it is reasonable to assume that Rawls was too. She also argued that Williams’s theory of religious equality is superior to Locke’s theory of toleration on several grounds, including that it does not depend on Protestant premises, that it is more extensive (Williams, weirdly enough, believed that not only pagans, but even atheists (whom he called “anti-Christians”) could be decent people), and that it is more demanding: his argument does not merely support a stricture against persecution (which Williams termed “soul rape”) as Locke’s does, but a stricture against establishment. All this, and the guy sailed back and forth between England and the colonies, learned numerous languages, including Indian languages, and spent months at a time living with Indians. Finally, in the book, she makes a strong case for that Williams’s principle of religious equality is not parochial, but has a great deal to say to other democratic cultures: it’s been enough to get me to examine (but not necessarily to reject) my casual antidisestablishmentarianism in the UK context. Despite having about a million things to do, I’m now half way through the book which is as good, and as interesting, as the lecture promised. Highly recommended.

I’m reading an interesting book, Eye For An Eye, by William Ian Miller [amazon]. (I don’t know anything about him. I just grabbed this off the shelf.) It’s a discussion of lex talionis style justice systems – a somewhat unsystematic ‘antitheory’ of justice, the author styles it. Lots of quoting from Old Norse stuff and Babylonian stuff and ancient what-not. Very colorful. Here’s a bit that’s interesting, in a subsection on “Paying Gods in Bodies and Blood”. Maybe Kieran will have something to say.
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Jeremy Waldron has a great piece in the latest LRB reviewing a recent book by Cass Sunstein. He has a nice discussion of the Cheney doctrine that even a one-percent probability of a catastrophic event should be treated as a certainty for policy purposes, where the class of catastrophic events is limited to those with a military, security or terrorist dimension. Reasoning like this interacts neatly with “ticking-bomb” scenarios: now a 1 per cent chance that the there’s a ticking bomb the terrorist knows about is sufficient in to justify waterboarding or worse. Of course other potentially catastrophic developments — such as climate change — haven’t generated a “treat as if certain” policy response from the US government, even thought even the most determined denialists must evaluate the probability that anthropogenic global warming is happening at greater than one in a hundred.

Waldron is also pretty acid about Sunstein’s treatment of global warming and distributive justice, noting some of the shortcomings of the idea that poor people’s lives should be valued according to what they’re prepared to pay to avoid the risk of death. But read the whole thing, as they say.