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July 31, 2006
I Confess: I Had A Crush On Martha Quinn.
Damn, do I ever remember the very early days. The astronaut with the flag, and David Bowie's "Ashes to Ashes" playing about twice an hour (or so it seemed).
The original VJs were quite a group -- Mark Goodman playing the role of David Schwimmer (though we didn't know it at the time); Alan Hunter playing the role of the button-down WASP; J.J. Jackson bridging the gap between J.J. Walker and M.C. Hammer; Nina Blackwood playing the role of the rock 'n roll bad girl with the whiskey voice and come-hither dye job; and Martha Quinn playing the role of ... my honey.
Happy birthday, MTV.
UPDATE: I wish to clarify something. Martha Quinn was cute as a VJ.
But she was no Amanda Pays in "Max Headroom." Now she was my Eighties Crush For The Ages. (Well, OK, Amanda Pays and my wife. Hi, sweetie!)
So Amanda, if you're out there, rest assured that you had it all over Martha Quinn in my book.
Posted by Eric at 11:38 PM | Comments (2) | TrackBack
July 29, 2006
The Special Danger of Blaming Minority "Subcultures"
"With Tim McVeigh they were happy to generalize guilt, all the way from the NRA to Rush Limbaugh and Newt Gingrich. Here, the 'climate of opinion' in subcultures producing terrorists seems to get less attention, or to be processed in more of a 'why do they hate us?' fashion. I wonder why?"I suspect that well-grounded fears of ignorant and violent backlash against innocent members of vilified and vulnerable minority groups might have something to do with it.
Maybe I'm just forgetful, but I don't recall a post-Oklahoma City wave of drive-by shootings of white guys with crewcuts. I do, on the other hand, remember assaults against innocent Arabs, Muslims, and even Sikhs after 9/11, and I'm told there was something of an overreaction to the Pearl Harbor attack as well.
This is not to say that it was right or fair to call Timothy McVeigh a product of the NRA, if in fact the mainstream media did that at the time. It is, however, to say that there's probably a big difference in risk to innocent lives between loose talk blaming the American political right for Timothy McVeigh and loose talk blaming American Muslims for Naveed Afzal Haq.
Posted by Eric at 2:32 PM | Comments (30) | TrackBack
July 27, 2006
My Great-Uncle Whispers To Us From Beyond The Grave He Never Got.
I am in College Park, Maryland, doing some last-minute research for my forthcoming book on the U.S. government's WWII loyalty bureaucracy. I had a couple of spare hours yesterday after reviewing the documents I'd come to examine, so I began poking around a little in NARA's enormous collection of microfilm. One series title intrigued me: "Documents Concerning Jews in the Berlin Document Center" (.pdf file), which, according to the finding aid, consists of "newspaper clippings, letters, manuscripts, pamphlets, reports and other documents originating with the SA, SS, Gestapo, Reich Ministry of Justice and Reichskulturkammer (RKK, Reich Chamber of Culture) from 1920-1945."
I grabbed Reel 5 of the fourteen-reel set and popped it onto a microfilm reader.
And, against all odds -- my great uncle was, after all, just one of six million Jewish victims, from a small and inconsequential German town -- I found information about him. All these years later.
Like this chilling police report from the Bad Kissingen Kriminalpolizei, dated February 4, 1935:
The complaining witnesses asserted that their customers -- some from here, but mostly from elsewhere -- have reported that on January 25 and 26, 1935, young people in civilian clothing posted outside their stores stopped them as they were leaving their stores in order to ask them their names and even threatened to place them under surveillance or bring them to the District Leader if they did not desist.The customers were pursued on bicycles, stopped, and asked their names. One woman from Albertshauren was advised to return her purchased goods to the store and demand a refund.
On Friday, January 25, 1935, Mrs. Gr$uuml;nebaum went to her store around (illegible) o'clock; she had to (word illegible, possibly "persuade") the young man posted at her door to let her through. The young man repeatedly peered through the store's door to take note of who was shopping in the store.
On Thursday, January 29, 1935, there was again a young man posted by Almstadt, taking down the names of the people who went into Grünebaum's store.
The shopowner Franz Ehrlich explained, that although there was no one posted directly in front of his store, they were instead stationed on the opposite corner, in order to be able to surveille the stores of Grünebaum, Müller, and Eisbaum. He was also able to observe that a number of Grünebaum's and Müller's customers were stopped by the people stationed there and had their names taken down.
Leo Müller explained that for most of the day on Friday and until 2:00 p.m. on Saturday, he kept his store closed, because he didn't want his customers to be harrassed upon leaving his store.
Four other people corroborated the complaints as made to me by the businesspeople.
And this one:
Würzburg, 23 January 1935.I learned that on January 15, 1942, the Bad Kissingen Criminal Police performed an "operation for the acquisition of Jewish-owned woolen and fur goods as well as skis and ski boots as part of the collection drive for the Eastern Front" -- that is to say, a theft of warm clothing from Jews -- and took from my great-uncle 40 articles of clothing, which of course they carefully itemized.Würzburg Police Directorate
Re: Circumstances of the Jews in Bad Kissingen
The Jewish community organization in Bad Kissingen informs the Union of Bavarian Jewish Communities that the conditions in Bad Kissingen are getting worse and worse, and that acts of terror are occurring. The breaking of windows of Jewish houses is almost a weekly occurrence. On Thursday, January 15, 1935, at around 9:30 in the evening, two pistol shots came through the window of the illuminated living room of the merchant N. Bretzfelder and flew over the heads of the people sitting at the table. The display windows of Jewish stores and even the front doors of the Jewish hospice were smeared with tar during the night."
And I learned that in 1940, Leo owned a Philips D57 AU "Aachen" radio. It was in tip-top shape when they stole it from him. "Like new."
Leo's life was extinguished in 1942. We thought he disappeared without a trace. But traces remain, in unexpected places.
Posted by Eric at 7:37 AM | Comments (4) | TrackBack
July 26, 2006
She Blinded Me With ... Balance! I Mean "Science!"
Posted by Eric at 11:04 PM | TrackBack
Remembering Complexity
It is therefore the one that most deserves preservation and accurate interpretation.
Posted by Eric at 8:43 AM | TrackBack
July 24, 2006
Melissa Jacoby's New Blog "Credit Slips"
She reports today on a new study that shows that more people are afraid of falling deeply into debt due to a medical emergency than because of terrorism or natural disasters. Interesting stuff. Check it out!
Posted by Eric at 8:41 AM | Comments (1) | TrackBack
A New Blog: Andrew Chin's "Voiceless"
The key words there are "almost all": Andrew himself is definitely not voiceless!
Check him out, and bookmark him.
Posted by Eric at 8:35 AM | TrackBack
July 18, 2006
Canyons of the Ancients
Here is one such unexcavated cliff dwelling we happened upon, set in a very unusual-looking cliff.
This photo will give you a good sense of the landscape.
And then we bumped into this guy, who tried to sell us car insurance.
Posted by Eric at 8:36 PM | Comments (1) | TrackBack
Born Free and Equal: Ansel Adams Photographs the Japanese American Internment
His book of photographs of the experience was called "Born Free and Equal."
Posted by Eric at 2:26 PM | TrackBack
July 13, 2006
Korematsu and Guantanamo
I've said here, notoriously, that Korematsu actually looks legitimate from the perspective I develop in my book. Hamdi, though, I say in the book is more than legitimate--it's more or less required, so that a decision going the other way would probably be illegitimate. This might seem odd, especially if you think that the internment was worse than the Guantanamo detentions, which I believe many people do. So how can the legal comparison come out the other way?
Part of the answer is that the Korematsu Court ducked the hard question of the constitutionality of the relocation orders. (You can fault the Court for that, certainly, but it means that the opinion it did write is easier to justify.) I have a hard time imagining an opinion upholding the relocation orders, or upholding continued detention, that I would call legitimate, because I can’t see a basis for continued detention (without some sort of individualized opportunity to demonstrate loyalty) that falls within military expertise. That is, I see the Korematsu opinion as confronting basically two questions. First, is there a pressing danger that exclusion will reduce or eliminate? Second, is there any less restrictive way to handle the problem? The government’s assertions here were that there was such a threat and that less intrusive individualized hearings couldn’t be conducted fast enough to meet the threat. Both of those assertions are about facts within military expertise, and I don’t think it’s unreasonable for judges to defer.
(If you’re interested in how this translates into doctrine, by “defer,” I don’t mean adopt rational basis review generally—I mean defer on these particular factual questions within the context of strict scrutiny, i.e., the Court would properly demand that the exclusion be necessary to serve a compelling interest. But then it would, practically speaking, defer on the necessity issue because it lacked the ability to make that judgment itself. (Which is also not to say that the Korematsu Court was using this modern test, because it wasn’t—it was doing something more like a straightforward assessment of invidiousness.) The interaction of factual deference and heightened scrutiny is an interesting and complex topic in its own right, and one that’s in the foreground in the federal partial birth abortion ban case, but I don’t want to digress too much.)
If the government had had to defend detention without an opportunity to demonstrate loyalty, I think the situation would have been different. What justification can there be for holding a group, many of whom are concededly loyal, without giving them a chance to demonstrate their loyalty? Perhaps that you just can’t tell with these people—but that’s really not a military judgment; it’s a racial generalization and I don’t think there’s as good an argument that the Court should defer to it. (Doctrinally, what I mean here is that I think a procedural due process argument against detention is much stronger than a procedural or substantive due process argument against exclusion.)
Hamdi was much more like this hypothetical situation. I wouldn’t expect the Court to enjoin or interfere with Executive arrests of terrorism suspects. (Though I do think the Non-Detention Act probably limits its ability to arrest U.S. citizens without charges. And relatedly, the fact that the exclusion and relocation orders had been ratified by Congress, while Guantanamo is Executive unilateralism, is a significant distinction.) But once you’ve arrested suspects, what’s the justification for holding them without some opportunity to demonstrate innocence? There is one, it turns out, but just like “You can’t tell with these people” it’s a justification that weakens the Executive position. The justification, the Executive said to a lower court in Padilla, is that effective interrogation requires a relationship of trust and dependence between the detainee and the interrogators. Allowing a detainee access to a lawyer or judicial process interferes with this relationship, the Executive said. It interferes because it gives detainees hope.
That’s a proposition whose truth executive officials are probably much better at assessing than judges—sadly, they have substantial experience with it—but I don’t think the denial of hope is an important enough state interest to justify the withholding of process. So the idea that courts should defer to the Executive about the need to deny detainees access to court is not one I find reasonable.
Of course, this doesn’t yet say anything about Guantanamo, because Hamdi wasn’t being held there. (He was at first, but once the government realized he was a U.S. citizen, they transferred him into the U.S.) And he was an American citizen (he isn’t any longer, because the government required him to renounce his citizenship as a condition of release, perhaps in the hopes that the next time they ran across him they could just keep him in Guantanamo). So what about the alien detainees held outside the U.S.?
Citizenship and geography are frequently considered important, but I have a hard time seeing why they should make a difference here. First, for all practical purposes, Guantanamo is part of the U.S. U.S. law, and no other, governs there. But second, the talismanic significance of national borders comes from an era in which state power was thought to be metaphysically territorially bounded. (My other subject, apart from constitutional law, is conflict of laws.) That time is over, in conflicts and in constitutional law, where the Supreme Court has been clear that U.S. citizens enjoy constitutional protections outside the U.S. Citizenship is certainly relevant sometimes—the Constitution says so in various places, explicitly restricting its protection to citizens. But the Due Process Clause speaks of persons, not citizens. So I have no problem concluding that aliens abroad have due process rights against the U.S. government. (For a more extended version of this argument, which also talks about the relevance of the purpose of various constitutional provisions, see my Guantanamo and the Conflict of Laws: Rasul and Beyond, 153 U. PA. L. REV. 2017 (2005).)
This is not to say that they must therefore always be treated the same way as citizens within the U.S. Due process analysis is context-sensitive, and if there were some good reason that detainees couldn’t be given access to courts, or if there was no dispute about their status (if they were obviously prisoners of war, for instance, or perhaps even just enemy aliens), then we would have a different situation. But the petitioners in Rasul are citizens of allied nations who allege that they have nothing to do with terrorism. (And, not that it should matter, it’s turned out that many of them don’t.) I don’t accept a constitutional analysis that says that the Executive can do whatever it wants with them as long as it holds them outside the technical borders of the U.S. (As with Padilla, it’s interesting to look at the sorts of things that Executive lawyers have said in lower courts. In the Ninth Circuit, they’re on record as saying that the Constitution allows the Executive to torture or arbitrarily execute aliens outside the U.S.)
Posted by at 1:35 PM | Comments (3) | TrackBack
July 12, 2006
Okay, Not Black, Then
So I don’t really see the Court as gung-ho. Another thing Douglas says is that he initially voted against the government in Korematsu but later changed his mind and withdrew his dissent. And while I may have been wrong about Black, Douglas does say that Rutledge “was less clear, but went along” and that Korematsu was “a bothersome case, troublesome case … very much discussed, very much considered, very much debated up and down the halls of, the corridors of the Court.” In that environment, I do think that more candor by the Solicitor General’s office could have made a difference. Douglas and Rutledge’s votes were in play.
On the two specific points I mention—the fact that DeWitt’s assertion that sifting the loyal from the disloyal was based on racism and not time considerations, and the fact that DeWitt’s report contained known falsehoods, I continue to think there’s some significance here. First, there’s a world of difference between a fact such as DeWitt’s racism 1) being common knowledge (as it may have been), and 2) being asserted by one party to the case (as it was), and 3) being conceded by the opposing party (as it was not). There’s a difference in that it’s easier for a judge who wants to ignore it to say “Oh, that’s just a newspaper report not subject to adversarial testing,” or “Oh, that’s just one litigant’s position.” I’m not saying the Justices in the majority didn’t want to ignore it—it was an uncomfortable fact. I’m just saying that denial is easier under some circumstances than others, and the Solicitor General made it easier than it needed to be. There's also, of course, an important difference between a decision that is made by a racist and a decision that is based on racism. That the assertions about the impossibility of sorting were the latter and not the former is what the Solicitor General could have disclosed but didn't.
Second, Eric (in a post) and Jerry (in a comment) argue that the allegations about ship-to-shore transmissions can’t be that significant because the Court unanimously upheld the curfew orders in Hirabayashi, when those allegations weren’t present. But I think it’s pretty obvious that the Justices felt a lesser showing was needed to support the curfew because it imposed a lesser burden on those affected—that, presumably, is why there were dissents in Korematsu but not Hirabayashi. So again, it seems to me that Rutledge and Douglas might have been swayed had the Solicitor General distanced himself from the allegations in the brief in a more candid way. But I freely admit this is all counterfactual speculation, which is why I'm a little puzzled at the assertions that there are definitive answers.
Eric also notes that I haven’t responded to his second comment, which asks why I view Korematsu through the legitimizing lens of judicial deference to military judgments rather than the de-legitimizing lens of the domestic imposition of burdens on American citizens solely because of their ancestry. Let me try.
When I say that a decision is legitimate, I mean that it represents a reasonable choice (between deference, non-deference, and “anti-deference”) in light of the factors present that suggest one or another stance is appropriate. From this perspective, I said, most decisions are legitimate. (David (in a comment) suggests that this fact shows only that my concept of legitimacy is too weak to be useful. I don’t think it should be the last step in analysis (which is why I distinguish it from correctness), but I think it is useful in distinguishing, say, Roe (legitimate) from Morrison, Garrett, or Adarand (illegitimate). (I do argue for this, rather than simply asserting it, in the book.) Korematsu, I said, is probably legitimate because a claim of military necessity is something that courts aren’t very good at evaluating, and therefore it’s a factor militating in favor of deference.
That’s not to say that there aren’t factors pointing in the other direction. The fact that a racial group has been singled out is certainly a factor suggesting that courts should not defer. My point is that when you have factors pointing in different directions, different resolutions of the conflict are probably all legitimate (although it proves interesting to compare the hierarchies that Justices construct in different cases). So it would of course also have been legitimate for the Court to say that it couldn’t take the claims of necessity at face value. Again, though, this would have been a good deal easier if the Court had been given evidence that the actual decision was made on the basis of racism, rather than merely that it was made by racists.
This is the end of my week of guest blogging, which has been both fun and educational. If Eric doesn’t mind, I’ll make one more post tomorrow on Korematsu and Guantanamo, which I hope will show that I am not, in fact, a fan of executive detention. In case anyone was wondering.
Posted by at 6:34 PM | Comments (2) | TrackBack
William O. Douglas Reflects on Hirabayashi, Korematsu, and Endo
One tidbit is of relevance to the discussion that Kim Roosevelt has been leading here: Douglas's recollection is the Hugo Black was the most gung-ho on the Court for upholding the military orders in both Hirabayashi and Korematsu. Kim has speculated that Black ought to have been on the fence, and might have been led to vote against the government by some slight alterations in the government's factual presentation. Douglas's account tends to suggest otherwise. (Indeed, Black even voted to deny cert in Korematsu entirely, according to Douglas.)
Posted by Eric at 8:32 AM | TrackBack
July 11, 2006
A Further Reply to Kim Roosevelt
As for Kim's response to my other comment, I think we all have to confess that we are engaging in classic counterfactual speculation. Kim believes that the Supreme Court would have struck down rather than upheld the exclusion of Japanese Americans if two things had been different from how they actually were: (1) if the government had not included an inaccurate reference to alleged shore-to-ship signaling by Japanese Americans in its Korematsu brief, and (2) if the government had accurately reported that General DeWitt's reason for not sifting the loyal from the disloyal before evacuation was that he thought such a sifting was impossible.
Jerry Kang deals ably with the first of these; I refer readers to his work for a full account of why this government misrepresentation probably did not lead the Justices in the majority to defer to the military. One point, though, is worth special mention: the same justices unanimously upheld the racially selective curfew against Japanese Americans in the Hirabayashi case in 1943, long before the government filed its misleading Korematsu brief. Plainly the Court did not need the misrepresentations about shore-to-ship signaling in order to uphold the racially selective curfew. So why assume that this was the "fact" that led the majority vote to sustain mass exclusion a year later?
And what of the second counterfactual? Would the Supreme Court have struck down rather than upheld the government's program if the government had honestly reported that General DeWitt thought a sifting of the loyal from the disloyal was impossible because there was no way of distinguishing a loyal from a disloyal Japanese American? Kim says yes, because this admission would have revealed to the Court that DeWitt's basis for evacuation was racism ("you can't tell 'em apart") rather than military necessity ("there's no time to tell 'em apart").
This strains belief, I fear, to the breaking point. The majority was well aware – Justice Murphy made great hay of it in his dissent – that General DeWitt had opined in his official justification for his decisions that "the Japanese race was an enemy race" and that even in the second-generation Japanese born in the United States, these "racial strains" were "undiluted." The majority knew full well that General DeWitt had stated – in an official publication – that the way he knew that Japanese Americans were planning sabotage and espionage was that they hadn't yet committed any.
Justices Rutledge and Black knew these things. And yet Kim maintains that if they'd known that he thought racial loyalties made a sifting impossible, they would have voted to strike down rather than uphold Fred Korematsu's conviction for violating the evacuation order, because then they would have understood that General DeWitt's decision was infected by racism.
Deeply implausible. I'm not buying it.
Posted by Eric at 10:58 PM | TrackBack
Who's to Blame?
I don't think there's any dispute that that's a reasonable vision of the relative competencies of judges and military officials. The question is how that should be implemented in the context of particular cases. Eric certainly knows a lot more than I do about the facts and the decisionmakers in Korematsu, which is one reason I'm so happy to be guest blogging here. At the moment--and further research may convince me otherwise--I do think that there are some reasons to be more forgiving of the Court than of the Executive. I confess I hadn't read Jerry Kang's article before now, and I've only just skimmed it, but his general account of the way in which the Court avoided the constitutional question of relocation is something I am familiar with. It suggests to me that the Justices were deeply uncomfortable with the exclusion and relocation program and were trying to avoid approving it. And that suggests to me that they were motivated by a desire to avoid a conflict with the Executive, not any nefarious purposes.
Put another way, the Court had three options. It could uphold and endorse the exclusion and relocation orders. Or it could try to duck the issue. Or it could hold them unconstitutional. There are several factors that would presumably have affected its choice. One is the straightforward legal plausiblity of the government's argument. One is the attitudinalist preferences of the Justices for or against the program. And one is the Justices' estimate of the practical consequences of their ruling, at the time and in the future.
If the Justices had actually favored the program, I would think that they would have chosen the first option, which they didn't. Certainly there's an argument to be made that they should have chosen the third, but I think it's understandable that they didn't pick that either. The government was asserting an interest that might be of tremendous significance--the preservation of the country--and the Court didn't have a very good way to judge whether the asserted threat was real or the response necessary. So the pure legal issue strikes me as relatively hard--the question is whether you're going to trust the Executive or not. It's true that in 1944 the danger to the country is obviously gone. But a decision handed down in 1944 can presumably be invoked in the middle of the war the next time--it can be invoked to stop some other similar program. The Court didn't want to create a no-deference precedent, which I think is understandable, particularly given the Court's recent experience with the struggle over the New Deal. And in immediate practical terms, Endo achieves much the same thing as a decision the other way in Korematsu. In terms of what the Court was trying to do, I think it's pretty clear that the Court hoped that Endo would be the more attention-getting decision.
This perspective suggests to me that if the legal merits of the government's case had appeared weaker, the Court might very well have ruled in Korematsu's favor--the actual decision was 6-3, after all. And candor from the Justice Department would have weakened the case in at least two fairly significant ways. First, as to the reality of the threat, DeWitt's Final Report contained various allegations, perhaps most notably about shore-to-ship radio transmissions, that the Solicitor General's office knew were false. Acknowledging the falsehoods would have weakened the case presented to the Court and suggested that deference was less appropriate because the representations of military authorities were not accurate. Second, as to the possibility of combating the alleged threat by other means, the argument made to the Court was that sorting loyal from disloyal was impossible to do quickly enough--this is an assertion that actually makes it into Black's opinion. But DeWitt's actual assessment of the situation, I believe, was that it was simply impossible to sort the loyal from the disloyal regardless of time. That is a more frankly racist claim, to which the Court would have been less likely to defer.
So my sense of the Court's approach is basically that it was torn between a desire to condemn racial discrimination and a reluctance to interfere with the conduct of military affairs. It struggled to find a middle ground, and if Endo had been received differently (which a constitutional basis for the decision would admittedly have helped) we might have a very different perspective on the Court's performance. But to get back to causality, I think that if the Court had seen good, tangible, nonrecurring reasons to deny deference to the military, there might well have been a two-vote swing. And I think that the Justice Department knew of such reasons and withheld them.
Again, though, I'm in the early stages of research, and I invite correction on any of these points.
Posted by at 11:38 AM | Comments (4) | TrackBack
Would You Care For Some Wheat With Your Chaff, Sir?
Posted by Eric at 10:02 AM | TrackBack
Some Thoughts on Korematsu's "Legitimacy"
Naturally this is something about which I'll have a word or two to say. Two quick points, to start:
(1) While I don't dispute that there are penty of circumstances in which "judicial deference to military decisionmaking really makes a lot of sense," I'm not at all persuaded that this is a legitimizing principle for cases in which the military is making decisions about the freedom of movement, and indeed the incarceration, of U.S. citizens on U.S. territory. So I'd like to hear a bit more from Kim on that point: why is "judicial deference to military decisionmaking" the central and legitimizing principle in Korematsu? Given that the case was about the domestic imposition of special burdens on American citizens chosen solely on the basis of ancestry, why shouldn't the general (and presumptively delegitimizing) principle be the very disapproval of race-based government action that the Korematsu opinion itself mentions?
(2) Essential to Kim's description of Korematsu as "legitimate" is the idea that if the Western Defense Command (with the Justice Department's connivance) had not falsely represented to the Court that Japanese Americans were involved in shore-to-ship communications with Japanese ships and subs, and had not falsely represented to the Court that it had undertaken no individual loyalty assessments because it didn't have the time, the Court would have gone the other way in Korematsu and condemned the mass exclusion of Japanese Americans from the West Coast as unconstitutional. Stated more simply, Kim's argument depends on a very strong claim of causation: it was the government's misrepresentations to the Court in Korematsu that led it to reach the result it reached.
This is a claim that Jerry Kang has pretty much demolished. The best evidence is that the Supreme Court structured its adjudications of the Japanese American cases to avoid condemning the mass exclusion as unconstitutional; there's really no evidence at all that the government's misrepresentations to the Court were what led a majority of the Justices to approve of mass exclusion as constitutional.
In the debate over Korematsu's "legitimacy" (as distinguished from its "wrongness"), this strikes me as a huge strike against it.
Posted by Eric at 8:36 AM | Comments (1) | TrackBack
July 10, 2006
Legitimacy and Activism
One of the consequences of this approach is that in most cases you can make an argument for either side, for deference or for suspicion. That's why I said this approach isn't all that useful for deciding whether a decision is right or wrong. But looking for an objectively right or wrong answer to the difficult constitutional questions, particularly the value-laden due process and equal protection ones, is probably barking up the wrong tree. This is not because such questions are inherently indeterminate or purely political; it's because they depend on the relative weights of different factors, such as the standard degree of deference to representative branches and the significance of a history of constitutional violations or some structural reason to question the soundness of the democratic process. Different people will give these factors different weights, and as long as they're consistent in their approaches, I don't think they can be accused of abandoning the judicial role.
So how does this work in practice? For the full exposition, you have to get the book, which I hope some people will. That has a bit of theoretical groundlaying and also some argument about the meaning of particular constitutional provisions. Suppose for now that some constitutional provisions (notably the Equal Protection and Due Process Clauses) have some sort of reasonableness or justifiability requirement. That is, they tell the government not to treat some people worse than others without an adequate justification, or not to deprive people of liberty unless doing so benefits society. The question then is how deferentially the Court will review the legislature's determination that some particular law meets that test, and this is where the different factors come in.
Generally speaking, the Court's Equal Protection and Due Process jurisprudence seems like a fairly reasonable approach to the question as I've described it. Discrimination against racial minorities gets an anti-deferential review because there's a history of constitutional violations and reasons to doubt that the legislative process will weigh costs and benefits accurately (basically, Carolene Products/John Hart Ely reasons). So this makes Brown an easy case. Discrimination against gays and lesbians has some similar characteristics, so I see Romer and Lawrence as legitimate also. Abortion is a little harder, but given the underrepresentation of women in legislative bodies and the history of laws restricting their equal participation in society, I again see reasons why a court might not defer. So Roe and Casey are also legitimate, though neither is quite as convincing as it could be. (I don't really buy fundamental rights substantive due process.)
But Roe and Casey certainly aren't compelled--it would also be legitimate for a judge to say "It may be that legislatures are undervaluing women's liberty, but women are a majority and the abortion issue is better left to the political process." If this judge was sincere, you would expect him to be very deferential in other circumstances as well--notably, perhaps, in the case of affirmative action, but also with sex discrimination more generally. (So if you buy some form of heightened scrutiny for sex discrimination, I think you probably also have to go for some form of heightened scrutiny for abortion restrictions.)
What, then, is an illegitimate decision? The easiest examples are ones where the Court is taking an anti-deferential stance without any obvious justification. I think strict scrutiny for affirmative action is the clearest example of this--I just don't see why the political process can't be trusted. Some of the new federalism decisions--Morrison and Lopez, and even more so Garrett and Kimel--also seem like they're refusing to grant any deference to Congress without a good explanation of why the Court is a better decisionmaker. Bush v. Gore is another--there the Court takes an aggressive stance vs. the Florida Supreme Court with respect to Florida law and also vs. county canvassing boards with respect to the proper standards for counting votes. Neither of those is easy to justify as a general rule, and indeed the Court generally defers in such circumstances, hence the infamous line about consideration being "limited to the present case."
The set of illegitimate decisions that's harder to be confident about is ones where the Court deferred but shouldn't have. Plessy v. Ferguson is the one I feel most confident about. The Court there seemed to be willing to say that discrimination intended to vex or oppress blacks was unconstitutional, but then it took the word of the Louisiana legislature that this was not that kind of a law. But there were ample historical and structural reasons to doubt that the legislature would weigh the interests of blacks equally, so the case for deference is weak--and, as Justice Harlan's dissent pointed out, the social meaning of the law was in fact pretty clear.
Korematsu is a very interesting case from this perspective. I think in the end it's legitimate, because the military necessity of a particular measure is something that courts are much worse than the executive at deciding. Certainly it would have been legitimate to go the other way, too, and in retrospect the decision seems wrong, in that the trust the Court placed in the Executive was misplaced. But deference to military decisionmaking really makes a lot of sense. The problem in Korematsu, I believe (and this is what I want to dramatize in the novel but am having some trouble figuring out how to integrate into the Court-focused story), was that the Executive misled the Court in the conduct of the litigation. Of course, that historical precedent is a factor pointing against deference to claims of military necessity in the future, and the Court's awareness of it is certainly part of the subtext of Hamdi and Hamdan. As the saying goes, "Fool me once, shame on--shame on you. Fool me--you can't get fooled again."
Posted by at 6:27 PM | Comments (1) | TrackBack
Sims Über Alles
The answer: PrusSim Blue!
Posted by Eric at 2:31 PM | TrackBack
July 9, 2006
The Myth of Judicial Activism
What I came up with is, I think, a fairly useful way of evaluating Supreme Court decisions. It won't work for every case, and it doesn't do a great job of telling you whether decisions are right or wrong. But I think it does do a pretty good job of identifying cases in which the Supreme Court could fairly be charged with abusing its power and imposing its views on the representative branches of government--what I call illegitimate decisions. And I hope it's simple enough to be one that non-lawyers can in fact use.
The methodology is this. First, ask whether the Court is deferring to the other government actor whose action it's reviewing--Congress, or the President, or some state body. Second, ask what reasons can be put forth for or against deference. These reasons would be things like a greater or lesser ability to get the right answer to a particular relevant question (e.g., does this activity in the aggregate substantially affect interstate commerce), or a reason to doubt that the government actor will decide the question objectively or in good faith, or a history of behavior that demonstrates trustworthiness or untrustworthiness.
These are questions that are pretty easy to answer, and they can be answered with a reasonable degree of objectivity. Then, to decide whether the decision is legitimate or not, you just ask whether there are reasons that support the deferential or nondeferential stance the Court has taken. The upshot of this is that most decisions are legitimate. But the approach does identify some decisions in which it seems very hard to explain why the Court has adopted the posture it has, and it also allows us to compare decisions where the Court has taken different postures when faced with the same array of reasons. Tomorrow I will discuss some of those decisions.
Posted by at 8:21 PM | Comments (1) | TrackBack
July 8, 2006
The Next Novel
But then the obvious solution came to me--set the book in the past. This would avoid any confidentiality problems, and also give me the opportunity to pick an interesting case as a backdrop. After thinking about juicy Supreme Court cases for a while, I decided to use the Japanese Internment cases--Hirabayashi, Yasui, Korematsu, and Endo. I liked these for a couple of reasons. First, I thought they'd give an interesting opportunity to reflect on themes of contemporary relevance. And second, I thought they'd give a good context in which to explore how well-meaning people do regrettable things. One of the most interesting and enjoyable aspects of writing In the Shadow of the Law was trying to figure out how things looked from the bad guys' perspective--what their internal logic was like. The Japanese Internment cases, I figured, would give me a great set of characters to do that with, because many of the important figures--Hugo Black, Felix Frankfurter, Herbert Wechsler, Francis Biddle--are generally considered good guys in the larger narrative of American history. So exploring how they came to do the things they did is something I'm very much looking forward to. And the fact that this is my next fictional project is one of the reasons I'm so glad to be guest-blogging here on isthatlegal. I'm still in the early stages of my research, so any advice would be most welcome.
Posted by at 5:01 PM | Comments (3) | TrackBack
Tragical History Tour
Reading Korematsu and the literature on the Japanese American internment is very important. But there's no better way really to understand the camps than to visit them, especially (if possible) with people who were warehoused there on account of nothing more than their ancestry.
There are camp sites in southern California (Manzanar) and northern California (Tule Lake), northwestern Wyoming near Yellowstone (Heart Mountain), eastern Colorado (Amache), central Utah (Topaz), southern Arizona (Poston and Gila River), southern Idaho (Minidoka), and southern Arkansas (Rohwer and Jerome). If your travels ever take you through any of those regions, stop by. It'll be worth it.
Posted by Eric at 9:44 AM | TrackBack
July 7, 2006
In the Shadow of the Law
In terms of how I came to write the book, the first point is that this is not actually my first novel. It’s my debut, in that it’s my first published novel, but I’ve actually been writing novel-length fiction for a while, and there are three others that never made it into print. The first of these I wrote in college; it was an autobiographical coming of age story about college students. I was trying to produce something like what you’d get if Milan Kundera had written This Side of Paradise—that is, combining a sort of bittersweet adolescent love story with various philosophical reflections. The second I wrote just after I graduated from college; it was a somewhat less autobiographical coming of age story about recent college graduates. And there I was trying to produce what you’d get if James Joyce had written The Great Gatsby—combining another bittersweet love story with a highly elevated formal style. The third one I wrote while I was in law school, and it was not autobiographical at all. It was my imagining what it might have been like had I gone to philosophy grad school instead of law school, and it was intended to be a darkly comic campus satire—something like what you’d get if Martin Amis had written Lucky Jim.
None of these was published, as I said, and in retrospect I’m pretty glad they weren’t. In all of them I was self-consciously trying to write very literary fiction, that is I was trying to do something technically interesting in as many individual sentences as I could. I was under the influence of Joyce and Nabokov and also I suppose Evelyn Waugh, who once said that the measure of a book’s quality was the number of brilliant and original similes per page. But in fact that’s not a great measure of a book’s quality, or at least not one that many people use, and although I think I did succeed in writing some interesting sentences, the books didn’t hang together all that well at the level of the paragraph or the chapter. And the emphasis on formal style came at some cost in terms of plot and character. So those were probably books that people would not have liked, and it’s probably good for me that they didn’t get published, because reviewers would have said nasty things about them.
Eventually I realized that. After I graduated from law school and finished clerking for some federal judges, I started work at a law firm in Chicago. And I said to myself, it’s time to write a novel that will actually get published, not something that a small number of people will find clever and a large number of people precious or annoying, but something that a significant number of people will actually want to read. So I asked myself, what are people interested in that I know enough about to make into a novel? And the answer that came to me was, the legal system. There’s a lot of popular interest in the legal system, and at that point I had experienced the different perspectives of a non-lawyer, a law student, a clerk for federal judges, and I was just starting out as an associate in a law firm. So I decided to write something that showed how the law and the legal system looked from all those different perspectives. So I set out to write a legal thriller.
To do this, I bought a bunch of legal thrillers to read so that I could learn more about the genre. At about the same time, my mother gave me a book called The Writer’s Journey. That book is based on the work of Joseph Campbell, and it’s about the use of mythic structure in storytelling. And I thought, well, I’ll make Mom happy too, and I’ll use a mythic structure for my legal thriller. I’ll have a reluctant hero who is summoned away from the ordinary world and called on to do great things, and there will be archetypal figures who help or hinder him—an old wise man, a shapeshifting trickster, a dark shadow.
So I did that. I created the characters, and I gave them a plot, and that produced my first draft. The first draft was basically a generic legal thriller. It told the story of Mark Clayton, a young associate in the D.C. law firm of Morgan Siler, and how he and a couple of other associates at the firm dealt with two cases: a mass tort suit against a chemical company, and the pro bono representation of an inmate on Virginia’s death row. It tried to give a number of different perspectives on the legal system, so the point of view moved among associates and partners, and judges, nonlawyers, and prosecuting attorneys. And I chose those two cases because I thought it would also provide an interesting contrast—the way that the firm deals with a big corporation and an impoverished individual, the different sorts of resources they have in the legal system, and how the system works or doesn’t work for them.
So the underlying organizational principle of the first draft was supposed to be this archetypal mythic structure. Of course, that structure has been used by other people, perhaps most notably George Lucas, so one amusing consequence is that you can more or less map the characters from In the Shadow of the Law onto the characters of Star Wars. Mark, the hero, is of course Luke Skywalker. I tried to tinker with the conventions a little bit here in that Mark does not end up having the mysterious powers of a Jedi Knight. He’s an ordinary person—as one reviewer commented, he’s not even a particularly brilliant lawyer. The brilliant associate, the one who does have the power to make the law do his bidding, is named Walker Eliot—the name Walker is a Star Wars joke—and he in the end turns out not to be an especially admirable character. And my point there was that it’s not necessarily the brilliant lawyers who serve justice; doing good as a lawyer depends not on how smart you are but on how much you care about justice. For the rest of the characters, the correspondence is closer. Peter Morgan, the managing partner of the firm, is the Emperor, who turns the firm into a soulless profit-fixated place and tempts the other characters towards the dark side. Harold Fineman, a very talented lawyer who has sacrificed his life to the firm is Darth Vader—he’s given in to the dark side, though towards the end he tries to recover his lost humanity. Wallace Finn, an old partner who runs the pro bono program is either Yoda or Obi-Wan Kenobi—a sage with hidden powers of his own.
So that was my first draft: Star Wars in a law firm. My agent managed to sell that draft, and I sat down with Jonathan Galassi, my editor at Farrar Straus, to talk about how to go about revising it. The first thing he said to me was “Make it twice as long.” And he explained a little bit more, but not that much—so he was a little bit like Yoda himself. But what he did was to point me to some of the themes and characters that he thought were interesting and could be expanded. The ideas he suggested, I like to think, were implicit in the first draft; I put them there subconsciously because they were things that were on my mind. But he focused my conscious attention on them, and I started working to develop them more.
By this point I had started teaching at Penn, and I also started thinking about what I wanted to tell my students about the world of law-firm practice that most of them were going to enter, and in which many of them would spend their lives. I teach constitutional law, and I try to teach it in a way that makes the students see the Constitution not as an immutable document handed down from on high but something that each generation struggles over, something that is or should be theirs, and in whose meaning they have a say. I think this is more valuable than just teaching them a set of rules about how cases are decided. But that doesn’t give me much of an opportunity to say anything about legal ethics, or how to survive as a person while working as a lawyer. And this was something that I saw my friends in law firms struggling with, so I wanted to say something about that struggle, too.
This came out in a couple of ways. The first is that I spent a lot of time working on developing the older characters and going into the history of the firm. I started with Peter Morgan’s father, Archibald Morgan, and I tried to show something of his view of the law, how that translated into the firm that he founded, and how Peter Morgan changed things. This basic story is something that lawyers and law school deans have been commenting on for a while. In one sense, it’s a transformation of the lawyer’s role. In the early twentieth century, and running up through the sixties and seventies, the ideal lawyer was considered to be a sort of counselor or statesman, someone who helped clients not just by giving them solutions to technical legal problems but also by giving them a broader range of advice—helping clients to see what was best for them, and doing so from a perspective that took broader considerations like justice and social welfare into account. This ideal fades in the eighties and nineties, and the paradigm of the lawyer becomes more the hired gun, someone the client calls in to solve a particular problem, who solves that problem in clever and creative ways, but does not think about how that solution relates to social justice.
In tandem with this change in the idea of the lawyer there’s a change in the nature of legal practice. Firms get bigger, for one thing. They also start having a very high ratio of associates to partners. That is, law firm associates used to be considered something like apprentices. The ratio of associates to partners was one to one, or even lower. It was expected that associates would eventually become partners. And the interaction between partners and associates was an educational process during which the associates learned the judgment necessary to be a lawyer-statesman. In the eighties and nineties, as the firms get bigger, you start getting a much higher associate to partner ratio. Now there are three or four associates for every partner. The higher ratio means a number of things. First, partners make more money. Firms sell associate work by the hour, and partners share the profits that associates bring to the firm—unlike the associates, who are paid fixed salaries, with bonuses that depend on how many hours they bill. So more associates means more money for the partners. It also means that not all the associates can make partner. Most of them will only stay three or four years. Given that, there’s less incentive to invest the partners’ time in training associates, much less trying to turn them into lawyer-statesmen. So the nature of the associate’s job changes, too. Instead of being an apprentice, tagging along with the partners and learning from them, associates become something much more like assembly-line workers.
This set of changes is interesting as an economic study. But it’s also interesting because of what it does to the practice of law in particular. The basic change in the nature of legal practice is what you could call the industrialization of law. There’s a real parallel to the industrial revolution. In pre-industrial society, you have an artisanal mode of production, where craftsmen make entire products. And of course they have control over the choices that go into the making of the product, and they have a set of skills and a degree of self-sufficiency because they can make the entire thing on their own. Industrialization changes that: suddenly you have assembly-line workers who don’t have unique skills. And they aren’t making an entire product; they’re doing something like making a door handle over and over and over again. What they’re making is valueless in itself. They have no choice in how they do it, or control over what it is.
This is a big shift in the world of manufacture, and it has some consequences. One of the main ones is that workers become more interchangeable, and they lose some of their bargaining power. Another, though, is a sense of alienation, and it’s the legal counterpart to that that provides the environment within which my book takes place. So in the past you had smaller firms, where individual lawyers handled entire cases. And now you have much larger firms, with associates who don’t handle a whole case but just do one particular task over and over again. And they have no opportunity to exercise control or make choices—in particular, they have no opportunity to exercise moral judgment. So what are the consequences of this shift in a justice-seeking profession? That’s the basic question that the book is trying to explore.
And when I was doing these revisions, I started trying to impose other structures on the book. The first was a set of parallels to Wagner’s Ring cycle. I can’t actually remember how this idea first came to me. I think what happened was that I was writing about Harold Fineman. Harold, I’ve mentioned already, is the Darth Vader character—a lawyer who’s given in to the dark side and renounced his humanity, renounced his independent moral judgment and become merely a servant of the firm. His professional identity has become his only identity. And as I was working on this character, I tried to develop the personal identity that he’d given up. Because I wanted something significant for him to abandon, I gave him a deeply religious background. He grew up in an Orthodox Jewish family in Borough Park Brooklyn. But he renounces this because he wants to create his own identity, and he ends up being sucked into the firm, which becomes his identity—the professional identity of the job becomes a sort of armor for him, an armor that he can’t live without. And there again you might see a similarity to Darth Vader. But one of the things that Harold finds he can do now that he couldn’t do before is listen to Wagner, which his parents wouldn’t have approved. So I have him listening to that, and understanding his life a little bit in terms of the plot of the Ring cycle, and I started doing some background reading on The Ring and I found that it fit my plot and themes pretty well.
Basically what I was working from here was a book by George Bernard Shaw called The Perfect Wagnerite. Shaw sees the Ring as about the struggle for authority between the higher law, represented by the gods of Valhalla, and the capitalists, represented by the greedy dwarf Alberic. And I thought that this fit very well with what I was describing as a struggle for the soul of the legal profession, between two ideas of what lawyers should be. These two ideas, I’ve said, are that of the lawyer-statesman, on the one hand, who measures success by his ability to guide clients to just and desirable solutions, and the lawyer-mercenary, on the other, who measures success simply by the amount of money he makes. Archibald Morgan, the founder of the firm, is a lawyer-statesman, and Peter Morgan, his son and the managing partner during my novel, is a lawyer-mercenary. In the Ring, Wotan’s plan to save Valhalla—to preserve the authority of law—depends on the free choice of mortals. In the book, these mortals are the associates, and the key question is whether they will choose the lawyer-statesman model or the lawyer-mercenary one.
A slightly different way of putting this, without the baggage of the Ring, is that associates face a difficult task in managing the tension between their professional identity and their personal identity. In particular, they face the problem of what to do when their profession seems to demand things that are in tension with what they think as individuals is morally right. And what I was trying to suggest was that the practice of law must be informed by moral judgment. If a lawyer gives up his or her independent moral agency, if he lets the job become her entire identity, then he dies as a person.
I found that my initial idea of giving different perspectives on the legal system also allowed me to explore this idea. So the different perspectives on the legal system turned out also to be different perspectives on the duties of lawyers. Walker Eliot views the purity and coherence of law as an end in itself, who sees his primary duty as an obligation to the law as an abstraction. Peter Morgan and Harold Fineman see the law instrumentally, as a means to serve their clients’ interests, and think of their duties in terms of zealous advocacy. And there’s also a character, Ryan Grady, who really doesn’t care about the law at all, or the clients, and is just putting in time at the firm because it’s a high-paying and relatively prestigious job, whose duty is only to himself.
Some of these perspectives are better than others. I was trying to suggest, generally speaking, that it’s important to understand that there’s a moral dimension to legal practice, that neither an abstract devotion to the law, nor a particularized devotion to clients, is complete. But none of the perspectives is complete by itself, and another theme of the book is that it’s important to be able to understand different perspectives and to be able to change your own. So the hero Mark Clayton is more or less dragooned into working on the pro bono death penalty case by another associate. But as the case progresses is he starts understanding his duty in different terms. First he’s thinking of himself as an employee of the firm, required to work on this case as part of his duty to his employer. Then he starts thinking of the case as imposing an obligation on him to try to make sure that the justice system is functioning properly. And last he comes to understand his duty as a more personal one, a duty to his client. In the end, whether the characters meet a happy or a sad fate depends basically on whether they have the ability to evolve like this, to see things in different terms.
Along with these different perspectives come different notions of reality, of what’s real or important. One of the things that law does, one of the things law students have difficulty adjusting to, is that it separates things we might intuitively believe should not be distinct. It separates legal guilt from factual guilt. It separates legal correctness from moral correctness. I talk about these separations, and then I try to give them more concrete forms. So persistently through the book there are contrasts between some thing and its legal representation. There is, for instance, the outside world, in which one runs errands and goes to the gym. But the managing partner of my fictional firm has realized that it’s inefficient to allow associates out into this world, because it distracts them from billing hours. So the firm creates a counterpart world within itself: it has a gym, it has people to do your shopping for you, to walk your dog and so on. Those are the legal shadows of the outside world, the reflections of reality. And the ultimate separation, the ultimate twinning, is the separation between the lawyer and the self—the creation of a professional role that is not you, but comes to have a life of its own, that comes to be as important as the authentic self.
This is a bad thing, of course. Harold Fineman is a character whose authentic self is overcome and swallowed up by his professional identity. He realizes this eventually, but he realizes it too late, and needless to say he comes to a bad end. So what I was trying to do with this theme of competing realities, of replication and separation, was to suggest that it’s important for lawyers to lead their professional lives in a way that doesn’t force them to see the professional identity as a separate self. They need to be able to invest their professional roles with the crucial attributes of their person. And one of those crucial attributes, perhaps the most important one, is independent moral judgment. It does not work, I suggest, for a lawyer to let the job tell him what is right and wrong, or to suppose that he can have a professional identity that follows a moral code that is not really his own. Law does separate legal guilt from factual guilt and so on; it separates the legally correct outcome from the morally correct one. But to say these things are separate does not mean that they are unrelated. The legal and the moral world pass information back and forth like the particles of quantum physics: what happens in one world changes the other. What a lawyer does as a professional affects her as a person.
Many of the separations I’ve been talking about are like the distinction between form and substance. Law recognizes this distinction, and sometimes it looks through form to underlying substance, or sometimes it invokes equity to overcome form. But one of the compelling illustrations of the form/substance distinction is a financing technique called securitization. I thought securitization was so fascinating that I made it one of the governing metaphors of the book. I also made it a crucial aspect of one of the plots. That’s perhaps an indication that I wasn’t actually being all that self-critical in terms of thinking of what people would actually want to read about, because in fact not so many members of the general public think securitization is interesting. This is probably the most technical legal material in the book, but the basic point isn't all that complicated.
You could say that the basic idea behind securitization is contracting around bankruptcy. The point is to separate the risks associated with a particular asset from the risks associated with its owner. So consider a pool of self-liquidating assets such as mortgage loans. These will provide a fairly regular stream of payments. Those payments could be used to service a debt, and the assets themselves could be used as collateral. So the corporation that holds those mortgage loans could borrow money based on the loans. Two things will determine the terms on which credit will be extended. First, the lender will evaluate the risks associated with the mortgage loans. But there’s another risk—there’s the risk that the parent company will go bankrupt. If that happens, even a secured creditor is likely not to get a full recovery, and will in any event likely to have to wait and endure the inefficiencies of bankruptcy. So the terms of the loan will be less favorable than they would be if the lender did not have to worry about the risk of bankruptcy.
And that’s where securitization comes in. It eliminates that risk. What the borrower does is to transfer the assets to a special-purpose vehicle. The SPV now gets the loan, and transfers it to the borrower as payment for the assets. Then it services the debt itself using the payment stream from the assets. Because the assets are now owned by the SPV rather than the borrower, the borrower’s creditors will not have a claim against them if the borrower goes into bankruptcy. And therefore the lender does not have to worry about the bankruptcy risk.
Now, you can probably see why this structure appealed to me given what I’ve said about the concerns of the book. It is a triumph of form over substance. It divides the borrower from itself by means of law. It creates a shadow self. And it does so in order to avoid risk, in order to prevent the assertion of certain claims. It mirrors, I suggest, what happens to lawyers when they suppose that they can abdicate their own moral judgment, that they can create a professional identity distinct from the actual self, and unencumbered by any claims that morality may make on the actual person.
But isn’t everyone better off? If you’re dealing with the borrower, you should know that it’s securitized its assets. You know that certain assets won’t be available to satisfy claims you might have and you bargain accordingly. So who is harmed by this? The answer in the securitization context is involuntary creditors. People who haven’t negotiated their claims against the borrower. Tort plaintiffs, for instance. And the role that securitization plays in the plot is that it’s being used to shield the chemical company from tort liability.
In the world of legal practice, of course, there’s a parallel. The separation of the professional identity from the actual self allows clients access to legal services without worrying about the risk of moral judgment on the part of the lawyer. The people who are harmed are those who have claims that this suspended moral judgment might satisfy. They’re the ones who suffer in a moral bankruptcy.
There’s a particular danger of this in large firms, because those firms offer such a complete substitute identity. And the identity they give the associates, the work they give them, is not something that requires or even allows moral judgment. Associates might find it very easy to suspend their moral judgment because not only do they have the professional role of lawyer available, they have an identity as an associate for that firm, and they can easily suppose that their duty is simply to perform the tasks that partners assign, letting the partners worry about the moral issues.
But this is not meant, and the book is not meant, as a condemnation of big firms generally. There are better and worse firms, just as there are better and worse lawyers. It’s meant as a warning, or an invitation to think about this possibility. We should be worried about the involuntary creditors of the legal system. In the book I suggest that criminal defendants are these involuntary creditors, because they’re the paradigm example of people caught up in the system against their will. And I suggest that pro bono practice is a way to undo some of the harmful effects. And that idea is what connects the plot line about the tort suit to the one about the death row inmate.
But the point can be broader. Very few people, if any, fully negotiate the terms on which they’re going to interact with the legal system. Everyone involved, really, is in that way an involuntary creditor. Everyone has a claim to justice, to law practiced in a morally reflective manner. This is not just something for lawyers to think about; it’s something that society should pay attention to. It is, I want to say, what we owe ourselves.
Posted by at 2:51 PM | TrackBack
In Defense of Emergency
Or is he just saying that the Court has wrongly cheated President Bush out of his entitelement to suspend civil liberties?
Posted by Eric at 12:16 AM | Comments (1) | TrackBack
July 6, 2006
Getting to Ngo
The other reason that I was so troubled by the decision is that, as I said, this is an issue I’ve been chasing for a while. The story starts back in 2001 when I was an associate with Mayer, Brown & Platt (now Mayer, Brown, Rowe & Maw) in Chicago. One of the great aspects of Mayer Brown’s pro bono program is something called the Seventh Circuit project. Staff attorneys for the Seventh Circuit Court of Appeals screen pro se appeals to identify cases that might benefit from the appointment of counsel; then their descriptions of the cases are passed on to Mayer Brown and associates are allowed to pick cases to brief and argue. I took one called Thomas v. Doyle, which the staff attorney memo said presented what looked like an interesting equal protection issue.
It turned out that the equal protection issue didn’t really exist—the staff attorneys weren’t always that good at figuring out which of the issues the pro se litigants asserted were real. But the state of Wisconsin decided to argue on appeal (having not raised the issue below) that a procedural error Thomas had made while exhausting his administrative remedies barred his civil rights suit.
That seemed like an interesting issue too, so I briefed it and showed up at oral argument fully prepared to discuss it. Or so I thought—about ten seconds into my argument one of the judges interrupted to inform me that a decision they’d handed down two days before had decided the issue against me. (I won’t give the link, but I think the Seventh Circuit has audio recordings of oral arguments, so if you want to spend the time tracking it down you can hear me say “Okay” slowly a couple of times before switching to a procedural argument, which of course didn’t work.)
Not being able to argue the issue was very frustrating to me. While I was still with Mayer Brown I filed petitions with the Seventh Circuit for rehearing en banc and with the Supreme Court for certiorari. Those were denied, not all that surprisingly since the Seventh Circuit was the first court of appeals to squarely decide the issue. Then after I started teaching at Penn I wrote an article about it called Exhaustion Under the Prison Litigation Reform Act: The Consequence of Procedural Error (52 Emory L. J. 1771 (2003)). I used Westlaw to follow the issue as it developed in other circuits, and I consulted on cases where it came up. Eventually a pretty serious split developed, with the 6th and 9th circuits taking what I thought was the right position and the 2nd, 3d, and 11th joining the 7th.
So when the Court granted cert in Ngo, I consulted again with Ngo’s lawyer (another former Souter clerk, who I thought did a very good job) and filed an amicus brief on behalf of law professors.
The basic argument was this. The courts that had said that making a procedural mistake while exhausting administrative remedies prevented a subsequent civil rights suit had relied on an analogy to either habeas corpus jurisprudence or administrative law. In each of those contexts, a litigant who makes a procedural mistake (either in state court, for habeas petitioners, or before an administrative agency, in administrative law) will not be able to get a federal court to hear the merits of his claim. But in each context, the federal court is being asked to overturn the decision that rests on a procedural ground—the decision of the state court or the administrative agency. In the prison litigation context, by contrast, the civil rights suit is not trying to get the decision of prison administrators reversed. The civil rights suit is an original action decided entirely independent of the administrative grievance proceedings; it is not a review of them. And so it shouldn’t matter whether the grievance is denied on the merits or on procedural grounds.
I thought this was a pretty good point. In the Ngo decision, it got three votes (Stevens, Souter, and Ginsburg), which was a little disappointing because I expected Breyer to come along. The majority’s response (in footnote 2 here) was more disappointing; it was that the distinction between original actions and review proceedings was wrong because the Court at one time thought of habeas petitions as original actions. This was so unresponsive (my brief pointed that out, and described the effect of Wainwright v. Sykes and AEDPA as changing habeas petitions from original actions to review proceedings) that it was a little hard to credit as a good-faith attempt to find the right answer.
So the whole experience was a little disappointing, but it does highlight one of the nice things about being a law professor, which is the ability to take issues that you’re interested in and devote yourself to them, rather than whatever a client needs you to think about. Tomorrow I’ll say something about the other issues I’ve been chasing, in fiction and in a book about constitutional interpretation that will be coming out this fall.
Posted by at 1:50 PM | Comments (2) | TrackBack
July 5, 2006
Sigh
Where is all this headed?
Posted by Eric at 6:10 PM | Comments (1)
The Most Dangerous Decision
Garcetti received a lot more attention than Ngo. Garcetti, you may remember, featured an employee of the L.A. County district attorney’s office who was allegedly disciplined for, among other things, the content of a memo he wrote recommending dismissal of a prosecution. The Court said that public employee speech that was part of the employee’s official duties was not constitutionally protected.
There was a fair amount of outcry over this decision, and several people raised the concern that it would allow employers to craft broad job descriptions in order to effectively strip protection from most employee speech. I didn’t think the decision was so bad, for reasons I explain in more detail here. To recap briefly, I argued that intragovernmental speech is not particularly important from the First Amendment perspective—it may be essential to governmental efficiency, but its contribution to effective self-governance is minor. So the Court is not wrong to think that when job performance happens to take the form of speech, it can still be evaluated as job performance and form the basis for termination without raising constitutional issues. What we should be worried about is speech from employees to the public, and there I do think the Court has struck the wrong balance by failing to give public employees some sort of safe harbor within which their speech can be fully protected, rather than protected only by the quite deferential Connick-Pickering balancing test. Garcetti is neither a terrible decision nor the worst thing about the Court's employee speech jurisprudence.
In Ngo, the Court interpreted the exhaustion requirement of the Prison Litigation Reform Act (PLRA). The PLRA requires, among other things, that inmates not bring civil rights suits “until such administrative remedies as are available are exhausted.” So an inmate wanting to file a section 1983 suit alleging a violation of his constitutional rights must first invoke whatever grievance system the prison has. The question in Ngo was what should happen if the inmate’s grievance is rejected on procedural grounds, because he has missed a filing deadline, or failed to be sufficiently specific in his allegations, or included more than one grievance in a single complaint. The Court’s conclusion was that the rejection of a grievance on procedural grounds should create a bar to a subsequent civil rights suit.
I think I’ll wait until next time to give my views on the merits of the decision—this is an issue that I’ve been chasing for for five years, and it’s a long story. My point here is that Ngo didn’t get nearly as much press as Garcetti, and I’m not sure why. I think that Garcetti is a very narrow decision, which applies only to cases in which the employee’s work product is speech. I don’t think that allowing employers to fire him because that work product is deemed unsatisfactory is such a terrible outcome, since First Amendment values are implicated much more by employee speech directed to the public, outside their official duties. And I don’t think that there’s a substantial possibility for employers to manipulate job descriptions to deprive important speech of protection.
Ngo, by contrast, is really apocalyptic for inmate civil rights suits. Prison administrators set the requirements and deadlines of their grievance systems. They have now been told that they can immunize themselves and their employees by constructing a system that is sufficiently procedurally complex and unforgiving to trip up inmates. Of course that’s what they’re going to do—prison grievance systems are going to become the first line of litigation defense, and a very effective one. And, as I will try to show next time, it doesn't make much sense, either logically or in terms of any policy aim other than keeping inmates out of court regardless of the merits of their claims.
So where’s the outcry over Ngo?