IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also a lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"
"Relentlessly sensible and often important."
-- Michael Froomkin of "discourse.net"

There's quite a ruckus at the University of Illinois about the Daily Illini's publication of this letter, which contains the anti-semitic rantings of one Ariel Sinovsky from Seattle, Washington.

Here's what I don't get: Why would some random guy named Ariel Sinovsky, with no obvious connection to the University of Illinois, be sending his "work" to the Daily Illini? Is this evidence of some strange Seattle-Champaign/Urbana connection that I've never heard about before? Or do these sorts of folks typically mass-mail their crap to every college paper in the country, and the Daily Illini was the only paper with the keen journalistic sense to publish it?

Washington Governor Gary Locke, who will give tonight's Democratic response to the State of the Union address, has (after a fashion, and without knowing it, of course) answered my question about what the basic mistake of the Japanese American internment was. (His answer: It's the inference.)

It's said that Lincoln's Gettysburg Address went largely unnoticed when he delivered it. Maybe this would've helped.

I am now prepared to take another candidate for "the mistake of Korematsu" out of the running--the one that says that the mistake of Korematsu was that it improperly permitted an inference about the risk of subversion to spill over the line between aliens and citizens. That can't be the mistake of Korematsu. Imagine that the government had sent only all alien Japanese to concentration camps in the interior for the duration of the war, and not their citizen children. (Forget, for the moment, the logistical and moral difficulties in separating parents from children, especially minor children.) Would we not look back on that internment as a big mistake? I think we would. I think the absurd extent of the actual deprivations (and again, I'm even setting aside the forced breakup of family units) that the government imposed would still have us talking about the horror of it, and still have us fearing a reprise.

So that one's out.

Of course instapundit is just being ironic when, in response to KesherTalk's report that A.N.S.W.E.R. is freezing Israel supporters out of the anti-War movement, he asks "Huh? I thought this was all about peace, and Iraq. How did Israel get into this? You think there's a bigger agenda here?"

But anybody who thinks the anti-war movement isn't taking on an anti-Israel stance ought to check out A.N.S.W.E.R.'s helpful little Q-and-A on its site, in which it explains that if people do not wish to support "Bush's bombing war," they should instead insist that the US "must stop funding Israel $4 billion a year to occupy Palestine."

Call me crazy, but I think it's possible to oppose the war and support Israel.

Let's say something terrifies you, but it's something so big and powerful in your life or your history that you've come to organize your life and your very sense of self around it. And so, paradoxically, when it looks as though it might be dying or leaving, you try to keep it alive and present because, paradoxically, even though it terrifies you, you need it.

Am I describing something real here, something you've heard of before? Something maybe from the anthropological or psychological literature? I have this nagging sense that there's a principle or a cultural practice here, but I just can't seem to call it up in my head.

And I need it for something I'm writing.

If this rings any bells, let me know, wouldja? Thanks.

Simon over at Rule 11 wonders whether I've too quickly discarded the selectivity of the Roosevelt administration's program in my quest to identify "the mistake" of the program. He writes:

Part of the real odiousness of Korematsu is the racist assumption that obviously underlies it, which differentiates it from the monumental policy and constitutional mistake of interning all Americans of some "Axis" descent.

Don't get me wrong here. I don't deny the odiousness of the racism at the heart of the Roosevelt program. (Au contraire, mon vieux: I wrote a book about it.)
But I'm trying to do something a bit different here. I'm trying to figure out what we're really worrying about when we worry that the Bush administration might be making (or moving toward making) "the mistake" of the Roosevelt Administration's program against Japanese Americans. And so I'm trying to imagine a world without each of the hypothetical explanations of the mistake of Korematsu, and asking whether this imagined changed would have avoided a mistake we'd still be talking about, and frightened of repeating. If the imagined change wouldn't do that, then that's not a viable candidate for "the mistake" of Korematsu. See? So sure, if the government's program had included German and Italian immigrants and their children, and the Court had then upheld it in Korematsu v. United States (and, I guess we might add, its hypothetical sister cases of United States v. Joe Dimaggio and Ex Parte Felix Frankfurter), it would have been a somewhat different tragedy from the one the real Korematsu case bequeathed us. But we'd still be talking about it ... and worried about repeating it.
So that one's still out.

OK, let's take one of the accounts of "the mistake of Korematsu" out of the running. It's an easy one. While the selectivity of the government's national-origin-based suspicions (that is, singling out Japanese Americans) was quite offensive to any plausible norm of equality, this just can't be what we really mean when we refer to "the mistake" of the Korematsu case. Imagine that the government had evicted all of the East Coast's German and Italian aliens, and all of its American citizens of German and Italian ancestry (including, of course, people like Mayor LaGuardia of New York, and Justice Felix Frankfurter), and put them in camps. Would we no longer refer to "the mistake" of Korematsu?

So that one's out.

I'm no conspiracy theorist, but this sure is an odd coincidence, especially in light of the fact that something quite similar happened to Sharpton's headquarters when he ran for mayor in 1997.

A thought experiment: It is very much in vogue to depict the administration's post-9/11 enforcement policies as risking, or actually making, "the same mistake" as the Roosevelt administration made in incarcerating the West Coast's ethnically Japanese population, and as the Supreme Court made in upholding that policy against constitutional challenge in Korematsu v. United States. This website certainly implies the point, as does this one, and the law reviews are beginning to fill up with articles making the claim too (though I can't link you to those).

This claim (and recent events) place an unusually sharp focus on the question of what, exactly, "the mistake" of the Korematsu opinion actually was. One understanding of the mistake was that it was a simple error of inference: the claim is that it was both irrational to infer anything of concernabout a risk of subversion on the simple and unadorned basis of Japanese ancestry. This understanding of the mistake of Korematsu folds nicely into current claims about the irrationality of racial profiling by cops: there just isn't anything at all suspicious about "driving while black," and it's therefore invariably a legal error to take any sort of official action on that basis.

A related claim is that the mistake of Korematsu was not that it was flatly irrational to infer anything of concern from the fact of ancestry, but that it was impermissibly selective to cabin the inference to people of Japanese ancestry, when, as a formal matter, people of German and Italian ancestry posed the same risk in 1942.

These are the commonly voiced accounts of "the mistake" of Korematsu. But there are others we don't hear as often (or at all):

1) The mistake of Korematsu was that it permitted an inference about risk of subversion to spill over the line between aliens and citizens. (Of the nearly 120,000 people of Japanese ancestry evicted from their homes in 1942, about 70,000 were U.S. citizens, born in the United States, and the overwhelming majority of that 70,000 had never even stepped foot in Japan.)

2) The mistake of Korematsu was not that it tolerated government action on the basis of an inference from national origin and ethnicity, but that it endorsed enormous deprivation on people--aliens and citizens alike--on the basis of that inference.

3) The mistake of Korematsu was that it allowed the government to proceed against an entire group of people on the basis of an inference from national origin and ethnicity rather than demanding individualized assessments of loyalty and risk of subversion.

And there are undoubtedly others that I'm not thinking of as I type this.

So here's the thought experiment: Imagine, separately and one by one, that the government's 1942 program had fixed each of these problems. Would we look back on this hypothetical Korematsu decision today and not consider it a mistake?

I'm puzzling this through, and would be curious to hear some answers from others. I'll post more as I continue puzzling.

Rest in Peace--and Keep It Short, Wouldja?.

Word to the wise: When you're about to be sentenced in federal court for committing fraud, it's probably a bad idea to submit to the judge forged letters of support (purportedly) from friends and colleagues. That's what the defendant did in United States v. Brown, a case just decided by the US Court of Appeals for the Tenth Circuit.

If you want to get a sense for how absurdly mechanical federal sentencing has become, read this case. Applying the federal sentencing guidelines, the sentencing judge bumped Ms. Brown's "offense level" (basically a calculation of how bad her conduct was) up two notches because of her obstruction of justice (in the form of submitting forged evidence). But the guidelines also say that a defendant who clearly accepts responsibility for her offense is entitled to a downward bump by two notches. Typically, a defendant who pleads guilty pretty much automatically gets the two-notch downward bump. Ms. Brown had in fact pled guilty, and the judge wanted to reward her for that. But the judge felt that a two-level downward bump was a bit much, what with her having submitted forged documents and all. So he gave her a one-level downward bump. The result? You guessed it. The Tenth Circuit reversed the sentence, telling the trial judge that under the federal sentencing guidelines, it was two downward bumps or none. One was not an option.

A technically correct application of the guidelines, yes. But in the big picture, absurd.

This nicely designed site, "Face to Face," is devoted to drawing parallels between the situation of Japanese Americans after 12/7/1941 and that of Arab and Muslim Americans after 9/11/2001. Here's how the site frames the question it's exploring:

Today, in the aftermath of the terrorist attacks on September 11, Arab and Muslim Americans and other citizens of Middle Eastern and South Asian descent fear for their lives, worry about their futures, and question the validity of their constitutional rights. Sixty years have passed, but have things really changed?

The question, however, is rhetorical: the site pretty clearly wants you to conclude that things haven't changed.

This is something I've thought a lot about in the last 15 months, and written about, too--here, and here. (You've got to download the pdf of that last one.) I'm working on a piece right now that is going to explore the question in greater detail, and as I write it, I hope to put bits up here for people to chew on and react to.

But for now, let me just say that I'm growing impatient with the too-easy invocation of the World War II experience of Japanese Americans by critics of the administration's post-9/11 policies.

When a faculty votes on a candidate for tenure, should that vote be open or closed?

That's a question that I'm going to have to vote on at a faculty meeting soon. (And that vote, presumably, will be open.) I'm really stuck on this one. I see good arguments in both directions. On the one hand, closed voting allows people to vote against someone's tenure for mean and nasty personal reasons, or for inappropriate and unreasoned ideological ones. On the other hand, closed voting allows people to vote their conscience on a matter of great importance to their institution without having to worry about the potentially intense interpersonal ramifications of a "no" vote. And while, in a perfect world, people would have enough confidence in their colleagues that they wouldn't fear rupture in friendships and working relationships from voting their conscience, that's not a world that anyone really inhabits.

What would you do?

A criminal defendant, convicted of fraud in federal court, appears for sentencing. To his surprise, he learns for the first time that the government is seeking, as a condition of his "supervised release" (federal-speak for "probation"), that he be barred from accessing the internet without supervision. Why? Because a search of his home computer revealed several images of child pornography downloaded from usenet newsgoups. The kiddie porn was unrelated to the fraud offense to which he'd pled guilty.

In a characteristically pithy opinion, Judge Easterbrook of the 7th Circuit held on Tuesday that the blanket prohibition on unsupervised internet use was illegal. But First Amendment fans beware: the portion of the opinion that struck down the condition of supervised release was not grounded in the First Amendment. It was instead grounded in due process; the problem was that the government had given the defendant no advance notice that this condition was contemplated. (Easterbrook easily rejected the defendant's claim that the blanket ban on unsupervised internet use violated the defendant's First Amendment rights.)

An interesting little case.

The below petition circulated on my law school's faculty listserv today, with an encouragement to sign and forward. It purports to be sponsored by the United Nations Information Centre, an arm of the United Nations. But it's not. (And how could it be? Why would the UN be gathering signatures at all, let alone gathering them now, before the weapons inspectors have reported, and before the Security Council has decided what to do?)

The careful (and multilingual) reader will note, by the way, that the English version is not a direct translation of the French and Spanish (which are essentially identical to each other). The French and Spanish versions start by announcing that the USA is about to declare war; the English version omits that and instead says "stand for peace; war is not the answer." Then, in the middle, the English version encourages people to sign the petition even though their one signature might, in context, seem inconsequential. The French and Spanish versions don't say this at all.

I'm curious to know what, if anything, these differences mean and reflect. Thoughts, anyone?

STAND FOR PEACE. War is NOT the Answer. Today we are at a point of
imbalance in the world and are moving toward what may be the beginning of
a THIRD WORLD WAR. If you are against this possibility, the UN is gathering
signatures in an effort to avoid a tragic world event. Your signing up
may look a minor thing, but many names will help the UN to direct much
energy
in a more peaceful direction. PLEASE COPY (rather than forward) this
e-mail IN A NEW MESSAGE, sign at the end of the list, and send it to all
the
people whom you know. If you receive this list with more than 500 names
signed, please send a copy of the message to: unicwash@unicwash.org
Even if you decide not to sign, please consider forwarding the petition
on instead of eliminating it. Thank you.

----------------------------------------------------------------------
Les États-Unis sont sur le point de déclarer la guerre.
Aujourd'hui, nous nous trouvons dans une situation de déséquilibre
mondial, ce qui pourrait initier une TROISIÈME GUERRE MONDIALE. Si vous
êtes
contre, l'ONU est en train de compiler les signatures pour éviter ce
tragique
événement mondial.
S'IL VOUS PLAÎT FAITES UNE COPIE de ce message (plutôt que de le
transmettre) et placez-le DANS UN NOUVEAU MESSAGE, écrivez votre nom à la
fin de la liste et envoyez-la à toutes les personnes que vous connaissez.
Si vous recevez cette liste et qu'elle contient plus de 500 noms, s'il
vous plaît, envoyez une copie à cette adresse: unicwash@unicwash.org
De plus, si vous n'ajoutez pas votre nom à la liste, s'il vous plaît,
n'effacez pas la pétition. Faites-la suivre à quelqu'un d'autre. Merci.

-----------------------------------------------------------------------
Estados Unidos está a punto de declarar la guerra. Hoy nos encontramos en
un punto en desequilibrio mundial por lo que puede dar inicio a una
TERCERA GUERRA MUNDIAL. Si tu estas en contra, la ONU se encuentra
recopilando
firmas para evitar este trágico acontecimiento mundial. POR FAVOR COPIA
este e-mail en un mensaje nuevo, firma al final de la lista que veras a
continuación, y mándalo a todas las personas que conozcas. Si recibes
esta lista con + de 500 nombres en ella, por favor envía una copia del
mensaje
a: unicwash@unicwash.org
Incluso si decides no firmar, por favor se considerado y no elimines la
petición. SÓLO REENVÍALO PARA JUNTOS HACER ALGO. Gracias.

I'm just back from an interesting class on how equal protection law ought to deal with laws that disproportionately burden racial and ethnic minorities. Here at UNC we've moved our constitutional law class from the upper level into the first-year curriculum, and I've been curious to see whether the comparative inexperience of the students would have a negative impact on the classroom discussion. So far, if anything, the opposite has been true. Very encouraging!

Anyway, I was saying before that I don't think it's especially smart for people to frame their support of abortion rights primarily on the (largely gutted) structure of Roe v. Wade. I think the actual case for abortion rights--policy arguments grounded in privacy and in gender equality--is far stronger than the case for accepting the (by now thoroughly undermined) finality of the votes of seven out of nine life-tenured federal judges in 1973. Sure, I understand that Roe has enormous symbolic value, and that a cry of "Defend Roe!" will rally the troops. Rallying the troops in this cause is, I think, a good thing. But framing abortion rights as a defense of Roe really requires you to be defending two things at the same time: (1) abortion rights themselves, and (2) the role of the Court in announcing them. (2) is, for many people--including many people who, as a matter of policy, would support broad privacy rights--controversial. Why not make central the claim for robust protection of abortion (and other privacy) rights in the political process, and push the Court to the periphery?

I just noticed in the faculty mailbox area here at UNC Law a pile of blue armbands, offered to us so that we can show our support for abortion rights on the thirtieth anniversary of the Supreme Court's decision in Roe v. Wade. I take it they were left there by a student group or groups. I'm a big supporter of abortion rights, but these armbands weird me out, as do nearly all of the "wear something to show everyone you're with us!" sorts of emblems that appear from time to time. It's probably just a touch of my family's German-Jewish refugee background misleading me, but I find the whole idea of wearing emblems for ease of identification somehow viscerally uncomfortable.

Beyond that, I question the wisdom of continuing to stage the defense of abortion rights on the terrain of Roe v. Wade. But more on this a bit later, after I teach my Con Law class.

And thanks to Jacob T. Levy as well!

Thanks to Amy Kropp and instapundit for the links! I can already see that getting a blog up and running is a challenge, and I appreciate the help!

If the Democrats want a relatively cost-free way to rough up the administration a bit on its post-9/11 enforcement priorities, the nomination of Mike Chertoff to the U.S. Court of Appeals for the Third Circuit will give them their chance. Chertoff runs DOJ's Criminal Division, and has been the internal point-man on domestic law enforcement since 9/11. Chertoff made no good friends among Democrats when he served as Al D'Amato's counsel in the Whitewater investigation, and I imagine that some of those old wounds may not yet fully have healed. Chertoff will also make a good proxy target for his boss, John Ashcroft, who some Senators may be unwilling to go after directly out of senatorial courtesy.

I have no doubt that Chertoff will be confirmed, as I think he should be. (He was my boss when I was in the U.S. Attorney's Office in Newark, NJ, and we worked on a couple of cases together.) He has an absolutely brilliant legal mind--probably the quickest mind I've ever seen, actually--and will be a fair-minded and careful judge. Plus, he's the son of a rabbi--so how bad a guy could he be?

How stupid is this?

The state of Wyoming couldn't quite bring itself to call the day Martin Luther King Day; it had to give it the name "Martin Luther King, Jr. Wyoming Equality Day" so as to make clear, I guess, that King's life was just one example of the kind of robust equality that typifies the state. (And if you want testimonials about Wyoming's robust commitment to equality, track down a few of the surviving Japanese American internees from the Heart Mountain Relocation Center near Cody, Wyoming, and ask them to tell you about equality, Wyoming-style.)

But, having grudgingly created the holiday, the legislature yesterday chose to work right on through it. How inspiring.

Holy crow!! I have a reader!! And he (she?) writes:

Please elaborate on your comment about diversity in the law class. If a principle is, in
fact, a principle then why is it not just as applicable in Wyoming as it would be North
Carolina ? Certainly, teaching fundamentals will vary from Moab, Utah to
Bedford-Stuyvesant or Toronto to Cairo. Why does geographical location change a basic
truth ?

If my job as a law teacher were to get up and teach "principles" and "basic truths," I'd have to concede that this comment was onto something. And I'd be hard pressed to make the case that racial diversity matters much in a bar review course, where a bunch of people sit down in a room and listen to a lecturer drone on about rules of law in a mechanical way, without any student input. But that's not what legal education is--not even close. Legal education is about developing ways of thinking about and discussing rules and policies, building and tearing down arguments, and developing a sense for how rules can (and can't) change. And in my experience, these sorts of discussions tend to go in remarkably different (and patterned) ways in a nearly all-white classroom (such as I had at the University of Wyoming) and in a racially mixed classroom (such as I have here at the University of North Carolina).

One of the questions to be resolved in the upcoming Michigan affirmative action case is whether a state law school has a "compelling interest" in racially diverse classrooms. Now, it would be just dreamy if the Supreme Court would finally deign to let us know how it goes about deciding whether a particular interest rises (or doesn't rise) to the magic level of being "compelling" (as opposed to merely "important," or "legitimate," or "permissible," or what have you). But I'm not expecting such enlightenment.

What I am expecting, from at least Justice Scalia, is deep (and cuttingly voiced) skepticism about the notion that the simple fact of racial diversity in a law school classroom actually makes much of an important difference. I've seen this argument around, and heard it voiced by students over the years in my own constitutional law class: isn't it subtly racist, the question goes, to assume that a classroom with a certain number of black students will be a different environment from a classroom without them? To this I can only invite people to do what I've done--teach a class on the Court's affirmative action cases at the nearly all-white University of Wyoming College of Law, and then teach the same material at the far more racially diverse University of North Carolina School of Law. Then tell me that racial diversity doesn't make a relevant difference, and we'll talk.

I was in Washington DC this weekend--not to protest the war, but to get together with a bunch of old college friends. We ended up lunching alongside many of the peace marchers at a mobbed food court at Union Station. So war definitely is good for the economy, or at least the fast food sector.

As I sat there with my kids, though, I thought: what exactly is my position on this war? Here I am, with my kids, and there's a huge protest going on a couple of blocks from here, and I'm a big believer in the role of protest in a healthy democracy: what a great lesson in democracy it would be to involve the kids in it! Why am I sitting here on my duff in a food court?


Then I saw a couple of protest signs decrying Israeli oppression of the Palestinians, and I had my answer. I may oppose this war, but I want no parts of an organized protest movement that is broadening its focus from the administration's Iraq policy to the administration's policy on the conflict between the Israelis and the Palestinians. And there's no question that at least some of the protest organizers--I'm referring here specifically to A.N.S.W.E.R.--can't seem to tell the difference between American opposition to Iraq and American support of Israel. Just check out this nifty "fact sheet" from A.N.S.W.E.R., which tells us, in the midst of arguments about the impending war, that "more and more people in the world are calling for an end to U.S.-Israeli oppression of the Palestinian people." If to oppose this war is to endorse A.N.S.W.E.R.'s one-sided depiction of the conflict between Israelis and Palestinians, count me out.